Over the last week there have been several advances as well as setbacks in the evolution of immigration policy under the Biden administration. The process of bringing the Migration Protection Protocols to a close was launched and the administration’s immigration reform legislation was finally introduced in Congress. Meanwhile, new operational guidance concerning enforcement priorities for Immigration and Customs Enforcement was released to mixed reviews, while a District Court judge overturned the Biden administration’s efforts to implement a 100-day moratorium on most deportations. After 10-months of being largely ignored in Congress, Title 42 is finally getting some attention, with calls for its rescision from 61 members of the House. Finally, as a reminder that U.S. border enforcement extends to Panama an agreement among Central America’s migration authorities was reached on February 23rd to block the entrance of Haitians and others traveling to the United States from South America.
Here’s what’s happening...
Migration Protection Protocol is rolled back
On Friday, the administration began implementation of its unwinding of the Trump era (error?) “Remain in Mexico” program. Outside of white nationalist circles, MPP has been a widely unpopular move with deadly consequences. Under the program, people seeking asylum in the United States were enrolled in MPP and then told to wait in Mexico for asylum hearings. The program was launched in January of 2019 and ultimately led over 70,000 people made to wait in Mexico. Hearings did not really begin until April of 2019, and when they did begin, it was something of a farcical process whereby people were escorted from the border into tents for a hearing with a judge via video conference. No legal observers or press were permitted, and representation for people in the MPP program was nearly impossible to organize. Very few people received asylum (only 643). In April of 2020 the hearings were suspended because of COVID-19.
As a result of people being turned back to wait, informal refugee camps were set up near the Mexico side of ports of entry as people were afraid to leave the area and miss their hearing. People in these settings frequently became victims of cartels. Over the course of the two years MPP was in place, Human Rights First has documented 1,300 victims of murder, rape and assault among those enrolled in MPP.
As of January 2021, estimates were that 25,000 people remained on the border waiting for hearings. Upon taking office, Biden suspended new enrollments into MPP, and set about creating a protocol for processing people already enrolled in MPP. That process was announced on February 11, and implementation began on Friday, February 19. People will be screened for COVID-19, and those who test negative allowed entry into the United States to await their asylum hearings. The administration has indicated it will seek to minimize the use of detention, using community support programs and possibly ankle bracelets as alternatives.
The official roll back of MPP began on Friday, as people began to be admitted in California. For some, this comes after two years of waiting.
The Citizenship Act of 2021
On the first day of Biden’s presidency, a summary of proposed immigration reform legislation was released to the media. Though submitted to the Senate a couple of days later, it has taken nearly a month for the full text of the legislation to be made public. Now it is. We did a high level review of the contents of the legislation when announced in January. A more thorough review of the details is still to come. Vox’s excellent summary from January is here. Some other analysis and responses to the bill: Detention Watch Network, National Immigration Law Center, and Alianza Americas and Presente.
The full text of the Senate version here. The texts in the House and Senate are essentially the same for now. As the bill proceeds in both chambers, and is sliced up and amended the versions will no doubt begin to drift apart.
Congressional letter calling on Biden administration to Rescind Title 42
On February 23, 61 members of the House of Representatives called on the Biden administration to end the use of a Centers for Disease Control and Prevention order invoking Title 42 of the U.S. code as a means to shut out asylum seekers. The letter was organized by Congresswoman Frederica S. Wilson (FL-24), House Foreign Affairs Committee Chair Gregory W. Meeks (NY-5), Congresswoman Pramila Jayapal (WA-7), and Homeland Security Committee Chair Bennie G. Thompson (MS-2). The letter says,
We write out of deep concern about continued Title 42 expulsions and deportations that have taken place in recent weeks, seemingly regardless of whether these migrants meet priorities for removals,” the letter reads. “In many cases these deportees are families and children who likely pose no security threat. The Trump administration misused Title 42 to summarily expel hundreds of thousands of migrants while denying them due process and access to the asylum system in contravention of international legal obligations.
The criticism of Title 42 is long overdue. It was inspired in part by the Biden administration’s use of Title 42 to expel close to 1,000 people to Haiti over the first three weeks of February despite the ongoing political crisis.
You can read the press release, and see a full list of Congressional signers, here. If your member of Congress is on the list, be sure to thank them for taking this stand!
The full text of the letter is here.
New Operational Guidance for Immigration and Customs Enforcement
On Biden’s first day in office, the then acting director of the Department of Homeland Security, David Pekoske, issued a memo that mandated a system-wide review of immigration enforcement policy and practice. The memo also included language on re-orienting enforcement priorities to focus primarily on people with criminal backgrounds. On Thursday, February 18, the acting head of Immigration and Customs Enforcement issued temporary guidance to ICE officers on implementing these new enforcement priorities. This interim guidance is only in place for 90-days. The director of Homeland Security, now Mayorkas, will be issuing new operation guidance at that point, following the review mandated in January.
So, what is in the new guidance? Enforcement priorities are defined under three categories: People who are deemed a threat to 1. national security, 2. border security, and 3. public safety. The priorities:
- National security: people possibly engaging in acts of terrorism, espionage, or whose arrest is otherwise deemed necessary to protect national security;
- Border security: people apprehended after illegally crossing the border since November 1, 2020, or otherwise not present in the United States on or before November 1, 2020;
- Public safety: people convicted of “aggravated felonies” or thought to be involved in gang activity
Behind each of these definitions is a long history of questionable practices and abuses. For example, aggravated felonies as defined under Clinton era immigration law is overly broad. It is one reason why the single largest basis for “criminal” removals are traffic violations. Which is to say, the narrowed focus in the interim guidance will lead to fewer arrests and deportations, but is still problematic. A statement from the We Are Home Campaign, for example, said of the new priorities:
they continue to rely on flawed and racist frameworks that stigmatize all immigrants as potential threats to national security or public safety, with vague and sweeping criteria for identifying such “threats” that will disproportionately harm Black and Brown immigrants, including Muslims. The guidelines also fail to make an explicit commitment to providing meaningful access to asylum for recent border crossers.
Texas refuses to come in from the cold…
I’ll admit my first take at a headline came out something like this, %#^@%$!^& Texas!!!, but I was overruled. “Why the frustration?” you ask. Back on January 20, the acting director of the Department of Homeland Security, issued a memo - the same memo mentioned above - that also included a 100 day moratorium on deportations. To be clear, the moratorium did not cover all deportations, and did not include people expelled under Title 42, which is the basis upon which the vast majority of people have been removed from the U.S. over the last ten months. But, it was a start. The temporary moratorium was envisioned as part of the system-wide review of immigration enforcement procedures. Halt most deportations, while reviewing the policy. Makes sense, right?
Enter the Attorney General of Texas, Ken Paxton. He decided to make some right wing hay out of this order, (he referred to it as a “ seditious left-wing insurrection”) and sued to block it. His main argument (at least the one out of six specious arguments the court accepted) was that Texas would suffer tremendous cost from the detention of immigrants not deported.* Absolute. Nonsense. There is always executive discretion on who gets deported and when, and most detention costs are carried by the Federal Government, not the state of Texas (whose localities, sadly, actually make money hosting detention facilities). Yet, a district judge, Drew Tipton, appointed by Trump, agreed, and on January 26 to issue a temporary restraining order (TRO) against the order. The TRO was extended until February 23rd. Then, late in the evening on February 23rd, Tipton issued a national injunction on the moratorium.
It is not clear if the Biden administration will appeal.
*Update: To clarify: The question of costs incurred by Texas is the basis upon which Texas claims to have standing in this case as an injured party. The actual legal questions at hand are largely procedural. Texas claims, in various ways, that the Biden Administration did not follow agreed upon procedures in terms of informing/consulting with Texas, seeking alternative measures and so on. For those interested you can read the ruling here.