United States: Biden Versus the Arc of Immigration Policy

By Dennis Stinchcomb and Jayesh Rathod*

Acting Deputy Commissioner Ronald D. Vitiello visits the Border Wall Construction Site near the Otay Mesa Port of Entry/ Photo Courtesy of U.S. Customs and Border Protection/ Yesica Uvina/ whitehouse.gov/issues/immigration/ Creative Commons License

U.S. Democratic presidential nominee Joe Biden has pledged more than just a return to the Obama-era status quo on immigration, but the historical arc of immigration policy, the pandemic, entrenched agency cultures, and the limitations of executive lawmaking point to modest progress by a would-be Biden Administration. Absent from the Biden-Harris immigration platform are many of the more progressive proposals of Biden’s rivals for the Democratic nomination, including commitments to decriminalize border crossings, abolish or restructure Immigration and Customs Enforcement (ICE), eliminate expedited removal proceedings, and temporarily halt deportations in hopes of compelling Congressional action. Even so, the Biden-Harris plan promises urgent action within their first 100 days to reverse President Trump’s sweeping changes to the immigration system, followed by novel reforms.

But the challenges faced by a Biden Administration would extend far beyond the mountain of executive formalities (and potential defensive litigation) needed to “undo Trump’s damage.” Since 1986 – the last time Congress passed comprehensive immigration legislation – two dominant trends embraced by administrations from both parties have constrained the potential for pro-immigration advances, leading to a one step forward, two steps backward dynamic from which a Biden Administration would have to break free.

  • Criminalization. In the runup to his 1996 re-election, President Clinton signed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which laid the groundwork for the aggressive immigration enforcement regime of the Trump Administration. IIRIRA subjected legal immigrants to deportation for a range of non-violent offenses, limited the due-process rights of certain categories of immigrants facing deportation, and facilitated the recruitment of local law enforcement agencies to carry out immigration directives. Today, a remarkably broad swath of criminal activity triggers immigration consequences, and migration-related conduct (including unlawful entry) is increasingly subject to criminal sanction.
  • Securitization. The Bush Administration’s framing of immigration as a security issue after 9/11 and the reorganization of the Immigration and Naturalization Service within a new Department of Homeland Security (DHS) put additional pressure on migrants. Intensive vetting of would-be migrants, including extra scrutiny of nationals from certain countries, often dovetail with the “criminal alien” narratives, particularly when migrant streams are portrayed as vectors for drug trafficking and organized crime.

President Obama gradually realigned enforcement priorities and promoted a culture of prosecutorial discretion, but the deeply entrenched notions of immigrants as lawbreakers with suspect intentions limited and undermined his pro-immigration policies. When faced with record numbers of arrivals at the southern border, the Obama Administration could not escape the enforcement paradigm, choosing to dramatically expand the practice of family detention and deport millions of noncitizens without criminal records.

  • This enforcement dragnet reinforced an agency culture within ICE and other components of DHS that equated increased apprehensions and removals with success. Obama’s timid reform policies and aggressive enforcement left enshrined criminalization and securitization as hallmarks that made it easy for Trump to implement unprecedented restrictionism. The President has infused his rhetoric with repeated references to immigrants as “bad hombres” and as threats, not just to public safety, but to American culture and identity.

If Mr. Biden takes office, we can expect a deluge of executive orders undoing many of the 400-plus actions taken by the Trump Administration that dramatically curtailed legal immigration, cut off temporary protections, and dismantled the asylum system. But an immigration counterrevolution is unlikely. Biden has acknowledged the missteps of the Obama-Biden Administration, but his middle-of-the-road approach – compared to the proposals advanced by other Democrats – fails to recognize that the ills of the immigration system predate President Trump.

  • Far-reaching reforms that break the decades-long trend to criminalize immigrants and view them through a security lens will require more than regulatory tinkering. Another wave of White House-mandated programs that grant temporary relief while subjecting immigrants to perpetual uncertainty is unlikely to satisfy immigrant communities and their advocates. The public health crisis caused by COVID-19, moreover, has provided renewed impetus for the securitization of immigration and may prove one of the greatest obstacles to Biden’s immigration agenda, which is silent on the pandemic.
  • Hope for groundbreaking reforms may only come in the form a Democratic-controlled Senate, where a legislative overhaul might embrace the decarceration and other less punitive approaches gaining traction in the criminal justice context. But even then, a Biden Administration would have to contend with thousands of existing DHS employees with a fundamentally different vision for migration management. These conditions, which align with the broader arc of immigration policy, forecast only incremental progress.

October 13, 2020

* Dennis Stinchcomb is the CLALS Assistant Director for Research, and Jayesh Rathod is Professor of Law and Director of the Immigrant Justice Clinic at the Washington College of Law.

Building Walls, Closing the Border: Not the Answer

By Ernesto Castañeda with Maura Fennelly*

U.S. Border Patrol stands watch during border fence reinforcement / U.S. Customs and Border Protection / https://www.flickr.com/photos/cbpphotos/44997385775/in/photostream/

U.S. Border Patrol stands watch during border fence reinforcement / U.S. Customs and Border Protection / https://www.flickr.com/photos/cbpphotos/44997385775/in/photostream/

Trump is widely thought to have originated the call for a wall to keep out migrants, but animosity toward Latin Americans has deep roots in U.S. history and political discourse – and the tough task of reversing it is long overdue. Presidents Bill Clinton and George W. Bush criminalized migration and secured funds to build fences and militarize the border. President Obama also oversaw the deportation of over 2 million migrants, some of whom ended up in camps on military bases.

Immigration remains one of the most debated issues, and immigration policies have a profound impact on families and communities with foreign-born members. Many long-time residents and some politicians see immigration as a cultural threat and are opposed to it. In Building Walls: Excluding Latin People in the United States, we trace the building of symbolic and physical walls between white Americans and Latin people. Boundary formation occurs at three levels:

  • Categorical thinking. The modern nation-state rests on the assumption that exclusion is necessary to protect the welfare of citizens. Migrants can be viewed as a threat to the autonomy of the nation. Immigrants can be “naturalized” and offered full citizen rights, but this assumes that they must change to fit in. One of the main narratives driving strict border surveillance is that migrants will negatively affect the economy, despite research continuing to show that long-term employment rates of American citizens’ are not harmed by immigration. Low-skilled wages are barely affected by immigrants entering the American workforce.
  • Anti-immigrant speech. Minority populations, including immigrants, have been subject to an increase in hate crimes since the 2016 election. White Nationalist groups use social media and the public sphere to disseminate anti-immigrant views. Members of a splinter militia group – the Minutemen American Defense – killed nine-year-old Brisenia Flores and her father in 2009 (and were convicted in 2011). The Minutemen, while declining in membership, have inspired the creation of smaller border patrol groups.
  • Immigration as an experience. Despite some political leaders’ claims of insecurity at the border, U.S. cities right next to Mexico are safe. Research shows that most border-area residents enjoy being next to Mexico. Across the nation, moreover, a vast majority – about 75 percent – believe that immigration is good for the United States. Nonetheless, Latin American migrants still struggle to find a home and a sense of belonging. In interviews, we find that many experience “social invisibility” – a feeling of existing in significant numbers while being unrecognized as full members. Interviews with undocumented migrants we conducted in El Paso reveal that over 75 percent reported that employers, landlords, and neighbors threatened to use their undocumented status against them. These experiences affect migrants’ well-being and mental health.

While the United States maintains durable inequalities between white Americans, Latin people, and other marginalized groups, the historical and social forces shaping our immigration narrative can be changed so that we empathize with, and no longer demonize, people who are looking for a home. Trump’s efforts to expand existing walls and build new ones are central to his strategy. He led the longest government shutdown in U.S. history and declared a national emergency because Congress would not fund it as he wished. However, his threats to close the border, impose tariffs, and other drastic actions show ignorance of the major impact these actions would have on the United States’ access to inexpensive agricultural, industrial, and technological products from Mexico. A border closure would not be sustainable beyond a few days. While polls show that 41 percent of people in the United States support the construction of Trump’s border wall, a majority of Americans know that more walls would not work.

  • The United States does not need a border wall with Mexico. The misleading and inaccurate claims made by politicians about Latin immigrants only further divide the nation – and obscure the positive contribution of Latin Americans, their experiences, identities, and cultures.

July 2, 2019

Ernesto Castañeda teaches sociology at American University and is the author of Building Walls: Excluding Latin People in the United States. Maura Fennelly is a graduate from American University and works with a housing assistance organization in Chicago.

U.S. Immigration: Call for Wall Ignores Changing Migrant Profile

by Dennis Stinchcomb

Graph of southwest border apprehensions, FY 2012-2019

Southwest border apprehensions, FY 2012-2019 / Note: FY 2019 data is through November 2018. Figures may not total 100% due to rounding. / Data source: U.S. Customs and Border Protection

As a record number of Central American families and unaccompanied children flock to the U.S.-Mexico border, the Trump administration’s demand for a $5.7 billion wall ignores changing migrant demographics and leaves largely unaddressed an asylum system buckling under unprecedented strain.  While undocumented immigration at the U.S.-Mexico border remains at historic lows, over 48,000 individuals comprising family units (parents traveling with children) were apprehended at the U.S. southwest border between October and November 2018 – a 308 percent increase over the same two months in 2017.  Such a staggering rise comes on the heels of what was already a record-setting year.  Between October 2017 and September 2018, border officials tallied the highest level of family crossings on record; the over 107,000 individuals detained by border officials dwarfed the roughly 40,000 apprehensions of unaccompanied children that prompted the Obama administration to declare a “crisis” in summer 2014.

A closer look at recent immigration trends underscores changing realities at the border:

  • Central American families and children represent an ever-growing share of migrants. Because overall undocumented immigration at the border has dropped and families and children have surged, the latter now account for 40 percent of all unauthorized migrants apprehended, up from 10 percent in 2012.  (Prior to 2012, family apprehensions were not publicly reported.)
  • Guatemalans now account for over half of all Central American family and child migrants. Though Guatemala is more populous than neighboring El Salvador and Honduras, proportional disparities in migrant flows from the three Northern Triangle countries have widened in recent years.  Guatemalan families apprehended at the border doubled between 2017 and 2018, and the number of unaccompanied Guatemalan minors increased by over 50 percent.  An increasing share of these migrants are coming from indigenous communities where poverty and malnutrition are rampant, so border officials face compounding challenges including linguistic barriers and health needs – factors that may have contributed to the recent deaths of two Guatemalan children while in Border Patrol custody.
  • Family and child migration from El Salvador has plummeted to its lowest level since 2013. The abrupt decline in Salvadoran migration to the United States has led many experts to point to the chilling effects of the Trump administration’s decision to terminate Temporary Protected Status (TPS) for nearly 200,000 Salvadorans currently residing in the U.S.  The “Trump effect” following his early 2017 executive orders, however, was short-lived, and other events, such as possible controversy over elections next month, could renew migratory pressures and further exacerbate conditions at the border.
  • The dramatic increase in migrant flows from Central America has fueled an historic surge in asylum claims. At the border, credible-fear claims – the preliminary step in soliciting asylum – continue to climb precipitously, up from 9,000 in 2010 to 79,000 in 2017.

The U.S. Government’s proposed solutions to the burgeoning humanitarian crisis do not reflect the evolving profile of migrants at the U.S.-Mexico border.  President Trump’s border wall – a hallmark promise of his 2016 campaign – appears aimed at the familiar Mexican adult migrant of the early 2000s or the mythical “bad hombre” spawned by his own nativist tendencies.  His Administration’s recent attempts to deter migrants or bar their access to asylum, either by separating families or rolling back protections for victims of domestic violence, have not stemmed the flood of arrivals.  A new “caravan” of migrants is set to depart Honduras this week.  Nor will a wall extinguish migrants’ legal right to request asylum.  The President’s most recent budget request for modest funds for hiring immigration judges and providing border infrastructure to support “vulnerable populations” is being held up by the political impasse in Washington over his greatly disproportionate spending on a wall, Border Patrol agents, and detention facilities.  Compromise between the President and Congressional Democrats remains elusive three weeks into a confrontation that has shut down much of the U.S. Government.  While Democrats have expressed willingness to beef up border security in exchange for a significant immigration win, such as legalization of the Dreamers or renewal of TPS, anything short of meaningful reform to the U.S. asylum system will do little to resolve the backup at the border.

Jan 15, 2019

U.S.-Latin America: “Zero Tolerance” Makes Zero Progress

By Ernesto Castañeda *

Children and adults stand in a line

Central American migrant children and their parents. / Pride Immigration Law Firm PLLC / Wikimedia

U.S. President Donald Trump’s family separation policies, despite his June 20 executive action ending them, will have long-term negative consequences and will do nothing to stem the flow of migrants into the United States.

  • Hundreds of families remain separated. Families are detained indefinitely for applying for asylum or crossing into the United States.  Political outrage in the United States may be new, but these policies are not.  Millions of families have been separated across U.S. borders for many years.  After growing up without their parents, children who did not originally accompany migrating parents often attempt to reunify with them in the United States, resulting in the increase of unaccompanied minors that we have seen since 2014 and the surge in violence in Central America.
  • The Trump Administration’s policies fail to address the underlying causes of migration – violence, impunity, corruption, and poverty in sending countries and high U.S. demand for low-cost workers – which show no sign of abating. Many Mexicans and Central Americans are fleeing kidnappings, extortions, and death threats as they explain during credible-threat interviews that give them valid claims for asylum.  U.S.-backed militarized responses to drug trafficking have produced much of the violence and corruption in Mexico and Central America, generating asylum-seekers.  Beyond the traditional economic and social reasons, many recent immigrants are escaping violence, as they did during the Mexican Revolution and the political violence in Central America in the 1980s.

Family separation and the detention of unaccompanied minors in shelters are not new practices either.  What was new in recent months was the separation of families that come to the United States seeking asylum.

  • These forced separations cause the children lifelong trauma. The American Psychiatric Association recently stated that “the evidence is clear that this level of trauma also results in serious medical and health consequences for these children and their caregivers.”  Separation inflicts trauma on adults too; parents suffer from being away from their children due to their decision to migrate.

The logic behind “zero tolerance” is to discourage migration by making conditions as miserable as possible for intending migrants – building psychological walls as well as the physical wall that Trump has pledged to build along the border with Mexico.  By ignoring the underlying causes of these movements of people, this approach is not only cruel but unlikely to be successful.  The concern is also misplaced, despite the increasing visibility of refugees and asylum-seekers in the media, as border apprehensions show a steep downward trend.

  •  The U.S. Congress has so far rejected solutions to the issue of family separation, such as creating larger guest worker programs, strengthening asylum courts, passing the DREAM Act, and demilitarizing responses to drug trafficking. Until the underlying causes of migration are addressed, Washington will be squandering its money prosecuting and causing lasting trauma for innocent children and parents.  Contrary to Trump’s claim that immigrants hurt U.S. culture, my research shows that immigrants are skillful at integrating into American life.  New pathways for legal immigration are the only way ahead to reduce undocumented migration.

 July 3, 2018

 * Ernesto Castañeda is an Assistant Professor of Sociology at American University and author of A Place to Call Home: Immigrant Exclusion and Urban Belonging in New York, Paris, and Barcelona (Stanford, 2018).

El Salvador: End of TPS Will Challenge Government and Society

By Jayesh Rathod and Dennis Stinchcomb

People wade through knee-deep water

Flooding in Jiquilisco, El Salvador / Global Water Partnership / Flickr / Creative Commons

The Trump Administration’s end of Temporary Protected Status for Salvadorans in the United States next year potentially will drop some 200,000 people into an environment in which basic needs, including personal security, cannot be met.  TPS for Salvadorans was first granted in 2001 after earthquakes caused “environmental disaster and substantial disruption of living conditions,” but subsequent 18-month extensions have been based on a broad range of factors.  On 11 occasions over the past 16 years, Washington has cited the lack of infrastructure, food, housing, and health care and slow economic growth as reasons for continuing TPS for Salvadorans.  Violence, corruption, and impunity as well as limited state capacity to combat them were also key reasons.  Statements by the Department of Homeland Security (DHS) announcing the policy change this week make limited mention of these factors, but numerous experts, including those contributing to a recent joint report by CLALS, The Washington College of Law, and the Instituto Centroamericano de Estudios Fiscales (ICEFI), concluded that El Salvador remains unable to adequately handle the return of its nationals.

  • Despite a decline in its national homicide rate, El Salvador remains the most violent country in the hemisphere. While the government espouses a narrative of progress, other indicators make clear that improvement on the security front has been limited, if not altogether absent.  Extraordinary security measures have coincided with increased allegations of extrajudicial killings perpetrated by both security officers and civilian self-defense groups.  Citizens’ pursuit of safety has made El Salvador the second-ranking country in the world of new displacements relative to population size.  Widespread corruption and weak rule of law contribute to impunity and abuse.
  • El Salvador remains extremely vulnerable to natural disasters – experiencing three major earthquakes since July 2016 and deadly torrential rains throughout 2017. El Salvador consistently remains Central America’s slowest growing economy, and under-employment affects more than one quarter of the labor force.  (That percentage will increase to roughly a third if TPS beneficiaries return to their homeland.)  The country has the highest deficit in adequate drinking water in the region.  Six out of 10 families who live there lack adequate housing.

The Salvadoran government is trying to put the best possible face on decision to terminate TPS, which it had previously lobbied against forcefully.  On January 8, the Foreign Ministry expressed “thanks to the government of the United States” for “postponing” the end of TPS for 18 months because it acknowledged the contribution of Salvadorans to the U.S. economy, culture, and society.  The government also thanked various non-governmental actors for supporting the “renewal” of TPS.  In closing, however, the government reiterated its commitment to push “alternatives” in the U.S. Congress that would promote Salvadorans’ “migratory stability” in the United States.

  • Think tanks and humanitarian organizations in Washington have condemned the Trump measure. The Washington Office on Latin America (WOLA) said ending TPS is a “senseless and inhumane policy.”  The Inter-American Dialogue notes that the Salvadoran MS-13 gang – one of President Trump’s most-stated enemies – will be a “primary beneficiary.”  Some fear that returnees, because of their perceived wealth, will be targets for extortion and other criminal activity at the hands of gangs.  A number of observers say that the resulting increase in instability in El Salvador will trigger more illegal migration into the United States.

Ending TPS for Salvadorans casts a shadow of uncertainty over the lives of 200,000 law-abiding, tax-paying migrants – half of whom have lived in the United States for more than 20 years and a third of whom have homes with mortgages, according to estimates.  That same uncertainty extends to TPS beneficiaries’ families, which include 192,000 U.S. citizen children. The Salvadoran government’s statement dodges the key issues of whether it can accommodate the influx of returnees and the loss of a significant portion of the roughly $4.5 billion (equivalent to 17 percent of El Salvador’s GDP) they send home each year.  There is no evidence that it can provide even basic protection for the returnees.  The Foreign Ministry’s unctuous thanks for Washington’s “extension” of TPS until the Salvadorans lose their status in 18 months suggests a mysterious confidence that the U.S. Congress will carve out exceptions for its compatriots in the United States.  However desirable that scenario might be, there’s precious little evidence that the U.S. legislature’s current leaders, who have shown support for most of Trump’s anti-migrant agenda, will help avoid the train wreck that Trump has now set in motion.

Click here for an in-depth review published by CLALS, The Washington College of Law, and ICEFI on the rationale behind TPS since 2001 and continuing need for protection.

January 10, 2018

Mexico: Changing the Narrative on Immigrants

By Carlos Díaz Barriga*

epn-welcoming-deportees

Mexican President Enrique Peña Nieto welcomed deported citizens at Mexico City’s airport two weeks ago, a first for the president. / Gobierno de México / Creative Commons

President Donald Trump’s decision to put Mexican immigrants at the top of his enemies list has prompted Mexico to become more active – and more creative – in reaching out to compatriots in the United States to help them remain there or to cushion the shock of deportation.  Largely because unauthorized Mexican immigration had been in decline for many years, it rarely made front-page news in Mexico, but since Trump’s rhetoric during last year’s campaign and since winning the presidency there has been no topic more popular in Mexico.  The 5.8 million unauthorized Mexican immigrants living in the United States, according to Pew Research Center estimates, have their home country worried about the economic impact their deportation could cause.  As Washington’s threat to deport millions looms ever larger, the Mexican government and other institutions are preparing for such a scenario.  Their game plan includes both helping Mexicans fight deportation and easing their transition if deported.

  • Mexican consulates in the United States are actively offering legal advice to any migrant facing deportation. President Enrique Peña Nieto announced the country would send $50 million to hire lawyers and set up outreach programs.  The consulates also set up a 24-hour hotline for immediate help and are actively sharing infographics on social media indicating how undocumented immigrants should react if they are detained.
  • Two weeks ago, President Peña Nieto personally received 135 deported Mexicans at Mexico City’s airport – the first time ever. Throughout the encounter he shared an upbeat and welcoming message.  He described Mexico as a “land of opportunities” and said, “The doors are always open.”  Dressed casually in a shirt without a tie, it was an image reminiscent of Canadian Prime Minister Justin Trudeau’s warm welcome of refugees.
  • Mexican political leaders have launched Operación Monarca, a multi-party movement to form alliances that benefit deported immigrants. A group of Mexican senators involved in the initiative participated in a forum last week in Phoenix, Arizona, entitled “Agenda Migrante,”at which dozens of undocumented immigrants shared anecdotes of their current situation, expressed their worries, and demanded Mexican officials and advocacy groups fight U.S. policy harder.
  • Universities in the country are also embracing the returning Mexicans. Universidad Iberoamericana, a private institution with various campuses around the country, offered 1,500 full-ride scholarships to incoming deported youths.  The public Universidad Nacional Autónoma de México, one of the country’s most prestigious institutions, also announced it’s starting to work with some U.S. colleges to assure that their students who are deported can continue their studies in Mexico.
  • Since Trump threatened to overhaul the tech-favored H1B visa work program, cities like Guadalajara have declared interest in becoming a technology hub. Mexicans hold a little more than one percent of the approximately 300,000 H1B visas (India has more than half), but the number of returning workers with technical qualifications could be significant.

President Trump’s border wall and its cost remain major irritants in the relationship, and there is great uncertainty over how the “renegotiation” of NAFTA will proceed, but Foreign Minister Luis Videgaray and President Peña Nieto continue to say Mexico is willing to cooperate with the United States wherever they can.  They are hopeful to keep a strong relationship, while staying firm in their conviction that Mexico will not pay for the wall.  Their shift on the undocumented in the United States reflects that commitment.  No longer are unauthorized immigrants considered a long-term and one-sided issue in U.S.-Mexico relations, but rather an immediate and mutual problem.  Mexico’s welcoming and warm message is probably small comfort to those being deported, and it is unclear if any of these actions could mitigate the economic and social impact for them, but the Peña Nieto government appears to be giving priority to avoiding a major train wreck with Trump over immigrants for now, and leaving the details for the future.

February 20, 2017

* Carlos Diaz Barriga is a CLALS Graduate Fellow.

Deciding Asylum: Challenges Remain As Claims Soar

By Dennis Stinchcomb and Eric Hershberg

asylum-blog-graph

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.

U.S. Immigration: In Need of Procedural Reform Too

By Maya Barak*

Photo Credit: Victoria Pickering / Flickr / Creative Commons

Photo Credit: Victoria Pickering / Flickr / Creative Commons

Migrants appear unlikely to get relief soon from President Obama’s appeal to the Supreme Court to overturn the November decision of the 5th Circuit Court of Appeals in New Orleans to continue blocking his 2014 executive actions on immigration.  With the injunction still in place, the President cannot go ahead with expansion of the President’s programs for Deferred Action for Childhood Arrivals (DACA) and the creation of Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA).  Assuming that the court will grant the case a writ of certiorari (which is not certain), it is unlikely to hear it before June 2016 – at the height of the U.S. presidential campaign.  Furthermore, as AULABLOG has reported, even if the Supreme Court upholds the President’s authorities on DACA and DAPA, it would also be confirming his successor’s power to reverse them.  The next President could easily terminate these actions, leaving many DACA and DAPA recipients in a precarious legal state.  Immigrants, activists, and scholars alike are following the Democratic and Republican primaries with baited breath.

While the uncertainty demoralizes immigrants and their attorneys, so too do the many procedural problems they face.  In 45 in-depth interviews I have conducted over the past two years with Central American immigrants and their lawyers, the need for procedural reform ranked high among the concerns of attorneys.

  • The processes of the Executive Office for Immigration Review, or “immigration court,” are the subject of strident complaints. Good and affordable legal representation and guidance are lacking.  Cultural and linguistic barriers preclude adequate communication between immigrants and judges in the courtroom, as well as between immigrants and asylum officers.  Videoteleconferences during removal (deportation) hearings, wherein the immigrant – and in some cases the judge – appear in a “virtual” courtroom via a two-way video, are often characterized by poor sound quality and shoddy images.
  • Detention during removal proceedings pose particularly serious difficulties for migrants and their attorneys. Accessing legal representation, case information, and necessary documents such as passports or birth certificates is extremely difficult.  Detention centers are often in distant rural areas, far from attorneys.
  • Immigration court backlogs have skyrocketed in recent years, with many courts scheduling hearings as far out as 2020 – forcing immigrants to put their lives “on hold,” unable to obtain a driver’s license or permission to work.

Despite these problems, immigrants say they feel listened to and respected by interpreters, judges, and government attorneys, which increases their belief in the legitimacy of the immigration system.  As problematic as the procedural issues are, immigrants’ greatest concern is that U.S. law as it currently stands does not afford the vast majority pathways to legalization.  Immigrants who truly want to be law-abiding – attracted to the U.S. because it is a country where the “rule of law” exists – regret that they must violate the law to escape the violent and unstable countries from which they come.  Immigration reform and procedural reform are complementary objectives and should go hand-in-hand.  While attorneys’ fixation with due process is understandable, so are immigrants’ desires for a chance to fully (and legally) participate in American society.  Just as U.S. political infighting has prevented comprehensive immigration reform and delayed – and could kill – implementation of DAPA and DACA, so too do the prospects for procedural reforms look bleak as the country enters an extremely political year.

January 14, 2016

* Maya Barak is a PhD candidate at American University’s School of Public Affairs specializing in Justice, Law and Criminology.

Judicial Activism Prolongs Immigrants’ Angst

By Maya Barak*

Photo Credit: Justin Valas and David Schexnaydre / Flickr / Creative Commons

Photo Credit: Justin Valas and David Schexnaydre / Flickr / Creative Commons

Legal maneuvering to block President Obama’s executive actions on immigration is keeping up to 4 million undocumented immigrants in limbo and, with the U.S. election campaign gaining momentum, dims prospects for them to participate in society more fully and openly anytime soon.  Texas and 25 other states filed suit in February hoping to overturn Obama’s expansion of his 2012 Deferred Action for Childhood Arrivals (DACA) and creation of Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA).  A panel of three judges for the 5th Circuit Court of Appeals (New Orleans), one of the most conservative courts in the country, heard the case in July, but the case is still pending – and the court’s temporary injunction remains in place.  Observers call their behavior judicial activism because the panel has deliberately eschewed its normal practice of 60-day decisions in order to prevent a rapid appeal by the Obama administration from reaching the Supreme Court during the Court’s current term.  The deadline for appeals to the Supreme Court was October 23.

If the courts – the 5th Circuit Court of Appeals (unlikely) or the Supreme Court (unknown), ultimately decide in favor of the Obama orders, DACA and DAPA would permit undocumented immigrants who entered the U.S. prior to 16 years of age and have lived in the U.S. continuously since 2010, along with eligible parents of U.S. citizens and lawful permanent residents, to apply for temporary relief from removal (deportation) and a work permit for three years.  In any case, the next President, who takes office in January 2017, could terminate the actions, throwing applicants for DACA and DAPA protections back into a precarious legal state – with their identities and whereabouts registered with immigration authorities and lacking relief from deportability.  A Central American asylee told me his immigration process, if all goes well, will have taken him 21 years.  “That’s a lifetime,” he said.  “To really feel like a citizen, like this is my home, that they can’t kick me out … So that’s where the system is failing me, is failing us.”

The delay for President Obama’s executive actions to take effect is just one of many lengthy waits individuals, both with and without legal status, experience while caught up in the U.S. immigration system.  Wait times for visa applicants can extend into the double digits – more than 20 years for family-sponsored visas for Filipinos, for example.  Not only are the U.S. Customs and Immigration Services (USCIS) and the State Department, which are primarily responsible for visa processing, backed up; the Executive Office for Immigration Review (EOIR), the nation’s immigration court system, is experiencing multi-year delays as well.  Fifty-nine immigration courts handle an average of 300,000-400,000 cases per year.  Detained immigrants spend months in detention waiting for hearing continuances and final hearings, while non-detained immigrants spend years awaiting their final case outcomes.  These individuals are forced to put their lives on hold, not sure if they will be allowed to stay or forced to leave, many unable to obtain work permits or driver’s licenses.  The expansion of DACA and creation of DAPA would alleviate some of the tension on America’s overburdened immigration system while individuals around the country and the world await meaningful and comprehensive immigration reform.  In the meantime, agencies managing U.S. immigration have little incentive and too few resources to speed up processing.  Like millions of immigrants, they are simply biding time.

October 29, 2015

* Maya Barak is  PhD candidate at American University’s School of Public Affairs specializing in Justice, Law and Criminology.

U.S. Immigration Reform: Stuck Again

By Aaron T. Bell

Steve Rhodes / Flickr / Creative Commons

Steve Rhodes / Flickr / Creative Commons

Opponents of the Obama administration’s executive actions on immigration – measures the President announced last November – have successfully blocked their implementation, setting the stage for a renewed political battle over the issue during next year’s U.S. elections.  Citing frustration with congressional inaction on immigration, Obama had announced that he would use his authority to expand the age limit of the Deferred Action for Childhood Arrivals (DACA) program, which temporarily defers deportation and allows undocumented immigrants to work, and to create a similar program for the undocumented parents of U.S. citizens and permanent residents.  Twenty-six states, led by Texas, filed a lawsuit in response, claiming that Obama violated a constitutional requirement to enforce the law and that he committed a technical violation of the Administrative Procedure Act (APA).  On February 16, the day before DACA was set to expand, a federal judge in Texas issued an injunction on the executive action programs.  The administration filed for a temporary stay of the injunction, which would allow it to begin implementing the programs while the court weighed their legality, but two weeks ago a Court of Appeals panel turned it down.  A long legal process in the 5th Circuit Appeals Court (based in Louisiana) will follow.

Despite this setback, recent precedents suggest that the Administration may yet win its case.  Arizona Sheriff Joe Arpaio, an outspoken opponent of reform, filed a lawsuit against the administration shortly after Obama announced his executive action, but a federal judge threw out the case in December on the grounds that Arpaio had not suffered direct injury from these actions and was thus ineligible to file suit.  Two months ago the 5th Circuit, which has a conservative reputation, unanimously dismissed a lawsuit filed by Mississippi and several Immigration and Customs Enforcement officers that challenged the original DACA program.  As in the Arpaio suit, the court reasoned that the plaintiffs lacked legal standing to bring the case, and – rejecting an argument also embraced by the Texas lawsuit that Obama’s executive action will cost taxpayers thousands of dollars in processing fees for driver’s licenses – the court recognized the economic benefits of the DACA program.  Fourteen states and the District of Columbia filed a brief in court in favor of the government’s case arguing that Texas and its co-plaintiffs have underestimated the fiscal benefits of the executive action programs.

Although the Courts may in the end reject the arguments of Obama’s opponents, they can claim at least short-term success.  Implementation has come to a complete halt, and immigration activists worry that the longer the legal process drags out, the less willing undocumented immigrants will be to apply to the programs and increase their risk of future deportation.  A subsequent appeal to the Supreme Court may push the executive actions back to mid-2016, reinvigorating immigration reform as a campaign issue just as election season is heating up.  Pew Research announced last week that its most recent polling data show that 72 percent of Americans support a path to legal citizenship for undocumented workers in the country, including 56 percent of Republicans.  Presumptive Democratic candidate Hillary Clinton has already pledged her support for reforms that go further than what Obama has tried to accomplish.  Republican candidates have slammed the President’s executive actions as “overreach” but are divided on where to go from there.  Former Florida governor Jeb Bush and Senator Marco Rubio have expressed support for a legislative replacement for DACA, while Senators Ted Cruz and Rand Paul have said they would make reversing Obama’s executive actions on immigration one of their first acts as president.  Wisconsin Governor Scott Walker recently expressed a desire to limit legal immigration as well in order to protect American jobs. Delaying immigration reform may ultimately put the Republican Party’s candidates in a difficult position next year.  If Obama’s executive action benefits family and friends of tens of thousands of Latino immigrants in the months preceding the November elections, the weak Hispanic voter turnout for Democratic candidates in the 2014 midterms is likely to be replaced by enthusiastic and potentially decisive support for a Democratic presidency, particularly if the Republican candidate focuses on appealing to the party’s nativist faction.

June 6, 2015