Immigration in the News 5/3/2021
Surprise in the Supreme Court, DHS launches "Operation Sentinel", Texas sheriff nominated for ICE Director
Comments
This weekly edition was a slightly difficult one to put together, as American mass media seems to have temporarily found a new “shiny” and immigration-related coverage was a bit scattershot. Fortunately, that environment usually means that some actual journalism gets done and there are several long-form stories below that transcend the normal coverage to offer more insightful takes. I have tried to highlight them with short comments.
It is hard to say what the overall impact of Niz-Chavez vs. Garland will be. In a perfect world, it would serve as warning to all government agencies that obtuse, kafka-esque bureaucratic policies are not constitutional or lawful. In practice it is likely to mean that “notice to appear” forms sent to immigrants in removal proceedings contain all the statutorily required information in the first notice, which will be important in preserving their ability to seek relief from removal. As a follower of immigration jurisprudence, I am more interested in whether this unusual constellation of judges (Gorsuch, Thomas, Breyer, Sotomayor, Kagan, and Barrett) represents a new approach to matters of immigration law. If they apply this thinking to other types of immigration-related cases it may lead to a significant shift in how our immigration system does business.
I have been agitating for weeks for a more focused attempt to combat human trafficking, and it appears to have worked! No, honestly it wasn’t my prodding, but DHS has seen fit to form a task force on this matter and is shifting resources around to address the issue. While these kinds of shifts are generally treated with cynicism at first, the reorienting of an agency or department to focus on a certain type of crime can be very significant over time. In particular, the change of focus by U.S. intelligence agencies from organized crime to terrorism after 9/11 had huge positive and negative impacts.
With the ICE Director nomination in place this week, Biden’s DHS team looks very solid. Mayorkas as Secretary, Ur Jaddou as USCIS Director, Chris Magnus at CBP, and Ed Gonzalez at ICE. Tried and true immigration professionals, who would have thunk it? Fingers crossed we spend the next four years with these folks at the helm, instead of handing out limited-edition naturalization certificates to new citizens with names signed by people who were only in office for less than two weeks.
There are also some comments below regarding specific stories of interest or recommendations. Going forward if there are any stories you would like to see featured here please reach out via email at immiwonk@gmail.com or shoot us a DM on Twitter at @immiwonk. Thanks for reading!
Big Topics this Week:
Supreme Court Surprise
Biden and the border
Undocumented Immigrants
Department of Homeland Security/Department of State
Refugee and Asylum Policy
While the Biden administration has dialed back the blanket targeting of undocumented immigrants that defined the Trump years, it has also reasserted focus on immigrants with gang affiliations — the kind of enforcement that Democrats and Republicans alike have supported for decades. On paper, Cruz-Zavala’s case would read to many as a concrete example of the kind of individual ICE and the Biden administration should seek to deport: five DUIs, a firearms conviction, a gang linkage, and a giant MS-13 tattoo. What those datapoints fail to capture, argues Raha Jorjani, Cruz-Zavala’s attorney, is everything else.
This is just such a crazy, in-depth article that touches on almost every theme in the Central American migration debate. This one man has basically hit every roadblock thrown up by geopolitical events beyond his control. Makes you wonder how many people are out there that had exactly this kind of experience.
Supreme Court Surprise
Supreme Court Decides Niz-Chavez v. Garland
The Supreme Court reversed and held the required notice to appear must be a single document containing all statutorily required information. The Supreme Court began by noting that an ordinary reader would interpret the IIRIRA’s use of the indefinite article “a” in requiring service of “a notice” as calling for “‘a’ single document containing the required information.” The Court emphasized that a notice to appear is the basis for commencing a legal proceeding, and other case-initiating pleadings “often use the indefinite article to refer to a single document.”
Supreme Court sides with undocumented immigrant fighting deportation
"If men must turn square corners when they deal with the government, it cannot be too much to expect the government to turn square corners when it deals with them," Gorsuch wrote in an opinion joined by a remarkable alignment of justices -- Clarence Thomas, Stephen Breyer, Sonia Sotomayor, Elena Kagan and Amy Coney Barrett.
The "square corners" doctrine of fairness and due process Gorsuch cited was penned by Justice Oliver Wendell Holmes, who said in a 1920 decision that a private company could not challenge its tax bill. In subsequent years, lower courts invoked similar language to describe government obligations to citizens.
Neil Gorsuch’s Persnickety Libertarianism Gave Immigrants a Win at the Supreme Court
To balance his grammatical geek-out, Gorsuch heaped on his usual libertarian rhetoric. Under these circumstances, it hit the right notes. “If the government finds filling out forms a chore, it has good company,” he quipped. “The world is awash in forms, and rarely do agencies afford individuals the same latitude in completing them that the government seeks for itself today.” Gorsuch cited the example of asylum applicants, who must “use a 12-page form and comply with 14 single-spaced pages of instructions,” pointing out that “failure to do so properly risks having an application returned, losing any chance of relief, or even criminal penalties.” Really, though, “anyone who has applied for a passport, filed for Social Security benefits, or sought a license understands the government’s affinity for forms,” and the “penalty” for making a mistake. Just because the government “finds some of its forms frustrating” doesn’t mean it can take a shortcut.
Reeling in the “bureaucratic big state” would be an interesting aspect of the current court. More power to them.
Biden and the border
Biden immigration moves under scrutiny from left and right
The slow pace of change has created a disconnect between Biden officials, many of whom were immigration advocates before joining the administration, and the advocacy community, which has sometimes reacted with disbelief at Biden’s perceived foot-dragging on immigration.
"The disconnect is an operational one, as boring as that may be. I think the administration aims to [open more legal avenues of immigration], but they are not yet staffed, and those channels are not open yet," said Marielena Hincapié, executive director of the National Immigration Law Center.
Bottom line: They need 18 months to staff and fund for the changes people want. Judge their progress as we approach the mid-terms.
Biden Immigration Policies Saw Wins, Setbacks in First 100 Days
Biden has added funds for investigating misconduct and for training in his proposed immigration bill and in the budget he sent to Congress. The Biden administration said it wanted to make sure immigration law enforcement officials were held accountable for misconduct or inhumane treatment.
The administration is already facing allegations of abuse in one Texas detention facility.
Officials from the U.S. Department of Health and Human Services said in a statement that they were not allowed to comment on specific cases but that the department “has a zero-tolerance policy for all forms of sexual abuse, sexual harassment and inappropriate sexual behavior.”
Opinion: Hey, whatever happened to the border crisis?
But for the most part, immigration seems to have disappeared from media coverage. What happened? CNN on Friday thankfully caught us up to speed: “The number of unaccompanied migrant children held in jail-like conditions by US Customs and Border Protection dropped nearly 84% in the span of a month, according to a White House official, underscoring the significant progress made by the administration after reaching record high custody figures.” Moreover, there has been “a nearly 80% reduction in time spent in Border Patrol detention.”
I know, ugh Rubin, but she makes some good points here.
Biden calls for path to citizenship for dreamers, farmworkers
"Let's end our exhausting war over immigration," Biden said to a sparse chamber.
Biden showed openness to changing his comprehensive immigration proposal, but laid out a baseline on who should receive legalization with a path to citizenship.
"Congress needs to pass legislation this year to finally secure protection for Dreamers, the young people who've only known America as their home and permanent protections for immigrants who are here on Temporary Protected Status [TPS], who came from countries beset by man manmade and natural-made violence and disaster, as well as a pathway to citizenship for farmworkers who put food on our tables," said Biden.
Citizenship path for farmworkers and Dreamers is realistically all we can probably expect from this administration. That’s not to say they wouldn’t love to do more, but they have sent a lot of signals indicating that this is all they think is achievable.
Undocumented Immigrants
Undocumented immigrants risk deportation to protest Biden in DC
Many undocumented immigrants and their American families are incensed over what they see as a pattern of pandering and abandonment, and the Biden administration's potential to repeat it.
Over the past three decades, Congress has failed at attempts to reform the immigration system, while funding immigration law enforcement.
While both Republican and Democratic administrations have called for reform, often including some form of status relief for undocumented immigrants, only smaller programs have granted temporary relief to select groups.
Undocumented immigrants now eligible for driver's licenses in NJ
The Motor Vehicle Commission changed the application process to accommodate people without a Social Security number. The state is warning that it may be hard to get an appointment because of high demand. At least 400,000 people are becoming eligible for a license under this new program.
Why California’s Undocumented Immigrants Remain Vaccine-Resistant
Like almost everything else associated with California’s vaccine rollout, though, the directive’s execution has been spotty, and in some cases it has resulted in people being turned away for vaccines. In part, that’s because of the state’s midstream shift to the MyTurn web portal and Gov. Gavin Newsom’s awarding of the vaccine distribution contract to Blue Shield, a longtime political contributor.
Those decisions functionally removed community and rural clinics, and their institutional knowledge of their patients’ needs, from the state’s officially designated vaccination campaign. In so doing, they took the process largely out of human hands and into a realm dictated by connectivity.
Not a whole lot here this week. I was personally surprised to see that only 12 states offer undocumented people driver’s licenses, it felt more widespread to me. The extension of free vaccine benefits to undocumented people makes sense on a practical level but I fear it would not pass muster in many other countries, Americans should be proud that we are forward-looking on this front.
DOS/DHS
DHS launches Operation Sentinel to fight human trafficking of migrants
"Transnational criminal organizations put profit over human life, with devastating consequences," Mayorkas said in a statement. "With the help of our federal and foreign partners, we aim to cut off access to that profit by denying these criminals the ability to engage in travel, trade, and finance in the United States.
"We intend to disrupt every facet of the logistical network that these organizations use to succeed."
In addition to sanctions, the U.S. government will revoke travel documents and freeze financial assets for those found to be involved in human smuggling, and suspend trade entities.
Biden to nominate Texas sheriff and Trump critic to lead immigration enforcement agency
Biden will tap Harris County Sheriff Ed Gonzalez, a veteran law enforcement officer and Democrat who has served since 2017 as sheriff of the most populous county in Texas, the White House said.
In a July 2019 Facebook post, Gonzalez said he opposed sweeping immigration raids after former President Donald Trump, a Republican, a month earlier tweeted hyperbolically that ICE would begin deporting "millions of illegal aliens."
"I do not support ICE raids that threaten to deport millions of undocumented immigrants, the vast majority of whom do not represent a threat to the U.S.," Gonzalez wrote. "The focus should always be on clear & immediate safety threats."
Apologize for missing the news last week about the nomination of Chris Magnus for CBP Director, also.
To lead ICE, Biden picks Texas sheriff who criticized Trump’s immigration policies
Gonzalez withdrew his department from a voluntary federal program that for years helped to detain and deport immigrants, and has expressed concern that involving local law enforcement in civil deportation efforts “silences witnesses & victims” by making immigrants afraid to report crimes.
“I do not support #ICERaids that threaten to deport millions of undocumented immigrants, the vast majority of whom do not represent a threat to the U.S.,” Gonzalez said in a tweet in July 2019, amid reports of immigration roundups. “The focus should always be on clear & immediate safety threats. Not others who are not threats.”
Opinion: ICE is the superspreader agency
At La Palma Correctional Center in Arizona, which houses roughly 1,100 ICE detainees, more than 170 are currently suffering from covid-19. As infections began to spread a year ago, a small group of La Palma detainees protested the lack of protective equipment. Guards at the facility responded with volleys of pepper spray and chemical agents, according to a report by the Homeland Security Department’s inspector general, which published a photo of the assault. Some were also punished with lengthy stays in segregation.
Nominating an Arizona and Texas cop to run the immigration enforcement agencies is a strong statement. While both these people were critical of Trump (probably a pre-requisite) they also have extensive experience working and living in the region that they will spend time dealing with. Biden continues to impress with his nominations at DHS. As a Texas native, I can say in particular that Ed comes highly recommended and is exactly what ICE needs right now.
Refugee and Asylum Policy
Refugee advocates question Biden's commitment to reviving resettlement program
Hoping to bounce back after seeing its refugee arrivals slow to a trickle under the Trump administration, the International Center proposed resettling up to 500 refugees in the fiscal year beginning Oct. 1, 2021.
Under Trump, nongovernmental agencies like the International Center saw federal funding decline as admissions dwindled to historic lows. Many scaled back their programs and made staffing cuts, and more than 100 offices closed.
The International Center escaped that fate, and its leader was cautiously optimistic in early March that it was witnessing the gradual rebirth of the nation’s refugee program.
A Refugee Who Fought Back Against the Hard Right
In February, in response to another suit filed by Mr. Mfouapon, a German court ruled that aspects of the police’s handling of the Ellwangen raid were illegal. The court did not rule entirely in his favor — it said, for example, that his 2018 deportation to Italy was legal, and that people in refugee facilities like Ellwangen cannot expect the same privacy rights as ordinary citizens. But his case has spurred a re-examination of the treatment of the Ellwangen incident in the German news media, drawing more attention to the voices of the refugees involved.
This concerns a refugee in Germany but is still quite interesting as it explores many issues that are salient to the refugee experience in America.
I Asked Obama’s Refugee Chief: The US Really Can Handle Both Unaccompanied Kids and More Refugees
I think all of us—not just government, all of us—could actually help talking about the issue of how the process works. And I think that’s part of the challenge because sometimes the media focuses on DHS sites [run by the Border Patrol] and seeing those pictures and that will be the narrative. But HHS is different. There are close to 200 shelters around the country, and they are licensed by the state, the state’s health department, the fire department. There are ratios for how many case managers and clinicians per child; it’s really well organized, and I don’t think that gets enough credit.