TPS for Haiti and Title 42 both extended by Biden, ICE still likes to hide

It has been over a year since we discontinued the Daily Dispatch, which served as our regular  (indeed, daily) summary of immigration policy. We are not bringing it back any time soon, but this week feels like one where we need to offer some news briefs and updates from a few areas of immigration policy. So in this installment of the Occasionally Recurring Dispatch!

Biden strings together some good news….

Last week we took Biden’s team to task for raising the specter of “boat people” regarding the current crisis unfolding in Haiti. We, along with other organizations, have been pushing the administration to actually do a handful of things about immigration and Haiti that would be helpful (instead of pulling out racist tropes). Last Friday he did - and for a few days we were all excited. And then….well the good news first.

Biden did extend Temporary Protected Status to Haiti in May. A large coalition has been pressing for (at least) two things regarding TPS and Haiti. The first is that the re-designation date be moved forward. The original announcement came on May 21, so only people from Haiti already in the United States on or before that date could apply for TPS. The second thing was to get the Federal Register notice posted quickly, so that people could begin the process of applying. 

On Friday Biden’s team finally did both things - they posted the Federal Register notice and also extended the re-designation date to July 29. The new date is significant - as there were a number of Haitians (exact number is not clear but hundreds) in ICE custody that were facing removal having arrived after May 21. Most can now make a claim under TPS to be released.

There is still work to be done on TPS - including a permanent solution that includes permanent residency. We are still fighting to get people who were made to wait in Mexico access to TPS - as under normal procedures, they would have been present in the United States before the designation date. There is also the concern that people who arrived via Brazil or Chile may be denied TPS on the grounds that they had, in effect, resettled in one of those countries first. That said, as a first step, getting TPS in place, the date extended, and the Federal Register Notice live so people can begin the process of applying, is all great news. 

And then….

Biden’s much anticipated decision regarding the extension of the Trump era (error?) policy, “Title 42” came down this week, and Biden blew it. At least if you care about access to asylum and human rights. This week Biden announced that the administration would continue enforcing Title 42 restrictions, including summary expulsions.

Title 42 refers to a section of the Federal code under which a public health order was issued by the Centers for Disease Control and Protection under intense pressure from Trump’s immigration advisor Stephen Miller in March of 2020. The order denies anyone encountered by Border Patrol the ability to apply for asylum. They are simply expelled back into Mexico immediately - or in the case of Haitians and others not from Central America - they are detained until they can be expelled. But at no point do they have access to regular asylum screening.

It was assumed that Biden would at least suspend the expulsion of families under Title 42 (he did agree to halt the expulsion of unaccompanied minors back in January). But he did not even do that. Admittedly, Biden has expelled a lower percent of those encountered than Trump, and much of this is due to a decision to expel fewer families. Why he would waffle on the family question is baffling. We can only assume that the nativist/racist backlash to anything deemed a “softening” of immigration policy scares even the Democrats.

Title 42 has been updated before. Biden’s update requires that the policy be reviewed every 60 days. 

A letter coordinated by Human Rights First prior to the decision lays out some of our concerns. 

Rational, science-based measures, recommended by public health experts exist to mitigate COVID-19 concerns and safely process asylum seekers at the border. The use of Title 42 – described as a “Stephen Miller special” by a former Trump administration official – was implemented over the objections of senior Centers for Disease Control and Prevention (CDC) experts and has been widely discredited by epidemiologists and public health experts who have confirmed it has “no scientific basis as a public health measure.” These experts provided detailed recommendations for the safe processing of asylum seekers to your transition team, the CDC, and other officials in your administration. In May 2021, medical experts for the Department of Homeland Security (DHS) filed a whistleblower disclosure condemning the policy for lacking a public health justification and for fueling widespread family separation and detention of children. Medical professionals providing care in encampments and shelters in Tijuana have also decried the expulsion policy as threatening the health and safety of migrants.

We join in with other organizations in calling on the administration to end Title 42 immediately.

ICE is still a rogue agency….

“Judge Mehta responded: ‘It’s as if nobody heard a word I had to say last time we were here. I am literally at a loss right now. I am at a loss. I have never, in my judicial career, had an agency respond to a judicial order in the way that ICE has responded to this order in this case.’”

Immigration Customs Enforcement (ICE) has a long history of avoiding any kind of scrutiny, be that from members of Congress, inspector generals or Federal judges. Even though there is new leadership at the top appointed by Biden, ICE’s penchant for secrecy remains firmly in place. As an example, ICE has been fighting the disclosure of its full “data dictionary” in response to a Freedom of Information Act Request from the Transactional Records Access Clearinghouse (TRAC) located at Syracuse University. A data dictionary is a database tool by which data points and their relationships are defined. So, ICE is not fighting the release of data per se. They are fighting the release of details on how they codify relationships between data points.  

A Federal Judge refused to let ICE of the hook back in July. Things got interesting:

When Judge Mehta refused, ICE continued to drag its feet. Then at the previous July 12 hearing to review progress in the identification and release of the data dictionaries, ICE official Ryan C. Stubbs had told the judge that “the agency’s [i.e. ICE’s] position is that these complete data dictionaries…are [to be] withheld in full.” Judge Mehta advised Stubbs, “…if that’s what the agency’s position is, then I think the agency needs to rethink it, because I will tell you…that’s a nonstarter with me.” But at the following July 29 hearing, openly flaunting the judge’s opinion and order, ICE produced samples where virtually all of the data dictionaries’ contents had been redacted and blacked out.

Judge Mehta responded: “It’s as if nobody heard a word I had to say last time we were here. I am literally at a loss right now. I am at a loss. I have never, in my judicial career, had an agency respond to a judicial order in the way that ICE has responded to this order in this case.” (See page 9 of transcript.) And he ordered “the head of the Civil Division…and whoever it is at the agency in the [ICE] general counsel’s office that can actually respond to meaningful questions from the Court, need to be [present at] this next hearing.”

This is the same agency that ignored repeated requests for explanations concerning conditions and practices at ICE detention facilities during the early months of the COVID-19 pandemic, despite repeated requests from members of Congress. The agency has basically ignored (by refusing to meaningfully enforce) years of recommendations by the Office of Inspector General on any number of issues - but perhaps most crucially the provision of health services in ICE’s network of privately run prisons. ICE always just adds a footnote to its press releases about how much they care, and how much is spent on health care when responding to criticism - when they bother to respond at all. So, secrecy is the culture of the place, and remains so under Mayorkas.

The TRAC suit is very important as TRAC is one of the few entities with the capacity to assimilate data on immigration enforcement, including detailed analytics about immigration court, detention and removal proceedings. They do this very well - perhaps too well for ICE’s comfort zone. It will be interesting to see what comes next.