U.S. Immigration Policy: Not Just Getting Rid of “Bad Hombres”

By Eric Hershberg, Dennis Stinchcomb, and Fulton Armstrong

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An agent from U.S. Immigration and Customs Enforcement (ICE)./ Department of Homeland Security / Wikimedia / Creative Commons

The immigrant deportation policy that the Trump Administration announced last week is among the most aggressive in U.S. history and promises to create tensions between Washington and Latin America and disrupt communities across the United States.  Homeland Security (DHS) Secretary John Kelly has told agencies under his aegis to “use all authorities to the greatest extent practicable” to remove undocumented immigrants from the country.  President Trump called his new initiative a “military operation” – which an embarrassed Kelly denied during meetings in Mexico City intended to control damage from other Trump statements.  The White House said the measures will “take the shackles off” the enforcers, and U.S. media reported enforcement officers’ celebratory comments that they “can finally do their job.”  The Administration will also ask Congress to authorize a large expansion – another 15,000 – of enforcement positions.

  • The rationale repeatedly refers to deporting “criminals” – whom Trump calls “bad hombres” and “bad dudes” – but the new policy will exempt no classes or categories of “removal aliens,” including non-criminals. U.S. press already report roundups of individuals with no criminal records who are being expelled from the country within 72 hours.  Fear among immigrants is pervasive, and there are many reports (such as here and here) of families hunkering down in their homes, withdrawing children from school, and setting up contingency plans for protecting U.S. citizen kids should their undocumented parents be grabbed by the authorities and sent abroad.
  • The policy weakens protections from “expedited removal” that the Obama Administration put in place, which allowed immigrants caught after they had been in the country for 14 days or more to be released pending proceedings to determine their eligibility to remain in the United States. (Details remain murky but supposedly will be announced soon.)  Individuals facing expedited removal are not entitled to appear before a judge.
  • It increases efforts to press local police to help federal agencies find and deport undocumented immigrants, blurring the line between local and federal forces. Legal experts say this commingling of forces violates the Constitution, and many local police chiefs lament that it reduces the willingness of immigrant communities to help them fight crime.
  • It removes privacy protections for people who are not U.S. citizens or permanent residents, putting their personal information in the hands of vigilantes, blackmailers, and others who have no need to know it. Trump previously threatened to withhold federal assistance from “sanctuary cities” in the United States, which he accuses of causing “immeasurable harm to the American people and to the very fabric of our republic” because they are reluctant to implement his deportation policies.

Two new measures suggest a long political campaign against undocumented immigrants.  DHS will create an office – with the acronym VOICE – to collect information from victims of alleged crimes.  It will be funded with “any and all resources that are currently used to advocate on behalf of illegal aliens” (most of whom have never committed a crime).  The Administration will also “identify and quantify all sources of direct and indirect” assistance to Mexico, obviously to evaluate U.S. leverage against the Mexican Government if the Administration is not pleased with compliance with Washington’s wishes.

Deporting all 11 million undocumented immigrants estimated to be in the United States will be impossible, but the new measures will push unprecedented numbers of Mexicans and Central Americans back into societies that have no jobs and no security for them.  That burden and the loss of immigrants’ remittances will cause those countries incalculable harm.  The Administration’s rhetoric hammering on “criminal immigrants” is deceptive:  DHS admitted in 2014 that most of the “criminals” it deported were guilty only of their undocumented presence (31.3 percent) and traffic violations (15 percent), and it would be foolish to expect that the Trump government will be more judicious.  The insinuation that immigrants commit more crimes than do native-born citizens, moreover, has been debunked; they are incarcerated at a rate half that of native-born.  These polices may enjoy the support of Trump’s political base, but the attacks on the defenseless; subversion of traditional values such as the right to legal counsel and the right to privacy; coercion of local police and civilian authorities; and the deportation of countless friends and neighbors whose everyday contributions enrich community life in the United States will have a profound impact extending far beyond its immediate victims.

 February 27, 2017

Deciding Asylum: Challenges Remain As Claims Soar

By Dennis Stinchcomb and Eric Hershberg

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Graphic credit: Nadwa Mossaad / Figure 3, “Refugees and Asylees 2015” / Annual Flow Report, November 2016 / Office of Immigration Statistics, Department of Homeland Security

The exodus of children and women from the three countries of Central America’s Northern Triangle – El Salvador, Honduras, and Guatemala – is accelerating, but information gaps and institutional flaws are obstructing asylees’ access to legal protections and hindering equitable decision-making on their claims in the United States.  The United Nations has recorded a nearly five-fold increase in Northern Triangle citizens seeking asylum in the United States since 2008, a trend driven largely but not exclusively by a spike in child applicants.

  • Legal scholars agree that high-quality, verifiable data on forms of persecution experienced by migrants in their home countries better equip attorneys to establish legitimate asylum claims and inform the life-transforming decisions by U.S. immigration judges and asylum officers.  Accumulating evidence also indicates that deeper systemic challenges to transparent, unbiased processing and adjudication of asylum claims remain, with grave consequences for the wellbeing of Central American migrants with just claims for protection under international and U.S. law.

In a December hearing before the Inter-American Commission for Human Rights (IACHR), advocates presented immigration court data from U.S. jurisdictions dubbed “asylum-free zones” – large swaths of the map where low asylum approval rates prevail.  In Atlanta, Georgia, for example, U.S. government data show that 98 percent of asylum claims were denied in Fiscal Year 2015; in Charlotte, North Carolina, 87 percent were rejected – far above the national average of 48 percent.  The month before, the highly respected U.S. Government Accountability Office (GAO) issued a scathing report, citing variations in application outcomes across immigration courts and judges.  (See full report for details.)  Attorneys and advocates refer to this phenomenon as “refugee roulette,” an arbitrary adjudication process further complicated by the fact that many asylees’ fate is determined by Customs and Border Protection (CBP) officers who function as gatekeepers to the asylum system.  Border Patrol is an increasingly militarized cadre of frontline security officers whose members took the remarkable and unprecedented decision to publicly endorse the presidential candidacy of Donald Trump.

Accurate information on the conditions asylees face in their native countries is fundamental to getting fair treatment in the United States.  The barriers to due process and disparities in asylum outcomes have long been sources of concern, and the systemic flaws – and politicization of CBP processes – raise troubling questions about screener objectivity and the degree to which prevailing U.S. screening procedures conform to international norms.  That asylum claims made by many Central Americans are first considered by officers of institutions whose primary responsibility is to deport undocumented persons, rather than to protect refugees, signals a glaring misallocation of responsibilities.  The U.S. failure to accurately and efficiently adjudicate claims at all levels of the discretionary chain – from frontline officers to immigration judges – also undermines efforts to promote fair treatment of intending migrants elsewhere in the hemisphere.  Mexico’s overburdened refugee agency COMAR, for example, continues to struggle to provide requisite protections, even while reporting a 9 percent increase in applications each month since the beginning of 2015.  Meanwhile, the UN reports steady increases in applications in Belize, Nicaragua, Costa Rica, and Panama.  Citizens of the Northern Triangle states who have legitimate grounds for seeking protection as refugees stand the most to lose, but the consequences of institutional failure in the U.S. and neighboring countries’ asylum systems reverberate beyond individuals and families.  With virtually no government programs to reintegrate deported migrants, growing numbers of displaced refugees returned to Northern Triangle countries ill-equipped to receive and protect them will further complicate efforts to address root causes of migration throughout the region.

January 19, 2017

A workshop on Country Conditions in Central America & Asylum Decision-Making, hosted by CLALS and the Washington College of Law, with support from the National Science Foundation, examined how social science research on conditions in El Salvador, Guatemala, and Honduras can assist in bridging the gap between complex forms of persecution in the region and the strict requirements of refugee law.

This material is based upon work supported by the National Science Foundation under Grant No. 1642539. Any opinions, findings, and conclusions or recommendations expressed in this material are those of the authors and do not necessarily reflect the views of the National Science Foundation.

The Consequences of Deferring “Deferred Action”

Photo by Larry Engel

The Obama administration’s recent announcement of a sweeping initiative designed to remove the shadow of deportation from the lives of nearly 800,000 undocumented immigrants residing in the U.S. is the latest twist in the dual saga of immigration policy reform and enforcement. According to government sources, including the Secretary of the Department of Homeland Security (DHS) Janet Napolitano, the carefully worded policy of “deferred action” is not an attempt on the part of the administration to sidestep a deadlocked Congress, an example of executive overreach, nor a strategic campaign maneuver during an election year in which the Hispanic vote could be decisive. It is simply the “right thing to do.”

The disparity between this morally grounded, high-level rhetoric and actual immigration law enforcement practices—which last year resulted in a record 400,000 deportations—has sent mixed signals about the current administration’s sincerity. It seems that the rising rate of deportations, touted last year as a “step in the right direction,” is beginning to be viewed within the administration as an unfortunate miss-step. Nonetheless, to many advocacy groups who lobbied in support of the DREAM Act and against blind enforcement of immigration laws, this Friday’s announcement by the Department of Homeland Security provoked a case of déjà vu. Only a year ago, in June 2011, U.S. Immigration and Customs Enforcement Director John Morton enthusiastically revived the policy of “prosecutorial discretion,” promising to scale back the removals of young students, military service members, and others. However, as of May 29 of this year, only 4,363 cases —a mere two percent of the 232,000 backlogged cases under review—had been administratively closed or dismissed.

Beyond questions of electoral politics and policy implementation, one thing is certain: for many undocumented immigrants and their U.S.-based families, deferred action has come too late. A recent report from DHS cited that during the first six months of 2011 alone, over 46,000 parents of U.S. citizen children were forcibly removed—a statistic that raises serious concerns about the health and social impacts of deportation on U.S. Latino communities. As the current administration seeks to hammer out a consensus regarding a long-term solution to the country’s broken immigration system, it is crucial that such a consensus be informed about the consequences of political miss-steps.