By - Tim Rosado
Here are the latest developments on rapidly-evolving immigration policy matters.
Judicial Ruling on Detention
A judge in a Federal district court in Florida issued a ruling (May 12) denying the ability of the Department of Homeland Security (DHS) to implement its plans to release migrants from detention and parole them conditionally into the US, which the Administration has argued is ncessary to prevent detention facility overcrowding, particularly during this current surge. The State of Florida had sued the Federal Government to prevent this practice.
The Federal Government's detention capacity is limited but usually is not significantly extended unless there are border surges, including large numbers of migrants claiming asylum. Persons claiming asylum have an opportunity under Federal law to be heard on the legitimacy of their claim.
The initial processing of asylum-based detainees can take time. Both the sheer number of persons in detention waiting for removal or waiting for an asylum case to be processed (not necessarily approved) can strain detention facilities often beyond a safe capacity. And, DHS has been criticized in the past, under different Administrations, for failing to maintain safe and healthy conditions in its facilities.
In light of the current surge, DHS has been planning to allow some migrants to leave detention (i.e., parole) without a set asylum court date. It is important to note that most migrants with a pending asylum case deemed credible would have, irrespective of this current surge, usually been permitted to be paroled into the US after security checks and other screening, until their asylum case could be heard formally.
The District Court judge suggested that returning persons to detention after the purposes of parole are served, and/or overcrowding is eased, would be more consistent with the law. DHS had no plan to do this.
Consequently, the DHS practice is on hold under a preliminary injunction for two weeks until an injunction hearing on May 19. The Justice Department has not yet indicated if it will appeal the decision, including the temporary injunction, to a Federal appeals court.
House Republican Immigration Bill
House Republicans passed (May 11) passed an immigration reform bill by a vote of 219-213, with all but 2 Republicans voting for the bill and all Democrats voting in opposition. Three representatives did not vote.
The “Secure the Border Act of 2023,” focuses on two aspects of system reform: border security and illegal migration, and includes some asylum system reforms. Among other reform aspects that have mostly not been addressed in the proposal include legal immigration reforms (e.g., temporary workers, agricultural workers, family reunification), so called "Dreamers" (persons brought here years, sometimes decades, ago as children who do not have permanent legal status in the US), and immigration pathways for the millions of non-dreamer illegal migrants already living and working in the US.
The core proposals in the House bill include:
A restart of construction of a southern border wall with a 200 miles-per-year construction goal.
No fewer than 22,000 Border Patrol (BP) agents. (Note: this is a nationwide total, not just for the southern border. There are about 20,000 Border Patrol (BP) agents today, with about 17,000 at the southern US border. The Department of Homeland Security (DHS) uses a 24,000 agent number at the southern border, but this includes customs agents at ports of entry as well as BP agents who focus on preventing illegal immigration.)
Authority to remove persons seeking asylum to third countries while their asylum case is being considered (e.g. the Remain in Mexico policy), and deem persons ineligible for asylum (with limited exceptions) if they transited another country outside of their citizenship.
Tightening asylum claims by changing the current credible fear standard for claiming asylum from requiring that a person merely show a significant possibility of harm and/or persecution under current law, to showing that it is more likely than not that a person can meet asylum requirements and establish that their asylum claims are true.
A DHS requirement to return to service any detention capacity that was taken out of service at the end of the Trump Administration, and require the resumption of family detention.
A requirement to return unaccompanied children to their countries of origin unless they were victims of trafficking.
A limit on the ability of DHS to grant humanitarian parole, which is being used today for significant populations of persons in the US including evacuated Afghans, Ukrainians fleeing the war with Russia, and Venezuelans fleeing the turmoil in that country. An exception is specifically provided for the Cuban Family Humanitarian Parole program.
One of the key challenges with the proposal is that it requires potentially massive new funding investments in people, a border wall, detention capacity, and border security technology. But the Republican leadership is, at the same time, pushing for massive budget cuts in non-defense, Federal program spending to address the budget deficit. Irrespective of views on immigration policy, significant spending cuts would make much of this proposal unworkable.
Though there is talk of new efforts in the presence of the current border crisis to come up with a bipartisan compromise on immigration, especially now that the House has passed a bill, that is unlikely to happen. There simply is no will on the part of most Republican House members (and some in the Senate) to compromise on bipartisan immigration reform proposals, which have failed in the past after initially gaining traction with some Republican Senators and/or House members.
Ultimately, the Senate is unlikely to consider the House-passed bill, making it unlikely that a significant immigration bill will pass the Congress before the 2024 election.
Troops to the Border
The Department of Defense (DOD) announced (May 2) the addition of 1,500 active-duty troops to support southern border operations, on top of the existing 2,500 National Guardsmen supporting border operations in the region.
The troops will be there for up to 90 days to help manage border management and processing with the end of COVID-19 immigration restrictions on May 11, the official end of the Public Health Emergency. DOD says that it is evaluating options of replacing the troops with Reservists and contract support, presumably if there is a continuing need for help.
Reporting, not confirmed by the DOD announcement, has indicated that the troops will help address specific needs that include detection and monitoring, data entry, and warehouse support.
New Migration Management Actions
The Department of Homeland Security (DHS) and the State Department announced (April 27) new immigration management actions in anticipation of a likely border surge with the end of the COVID-19 Public Health Emergency on May 11.
The new measures will cover actions occurring at, and beyond, the US southern border. Specifically, the agencies will collaborate to:
Implement previously-announced new border processes for persons, to include the rapid processing of removals of those deemed ineligible for asylum and the barring for at least 5 years for persons removed; expanded access to CBPOne to help migrants make appointments to appear at a US Port of Entry; and a new family reunification parole processes for El Salvador, Guatemala, Honduras and Colombia that will enable vetted persons to be paroled into the US on a case-by-case basis.
Open regional processing centers in foreign locations to "reduce irregular migration and facilitate safe, orderly, humane, and lawful pathways from the Americas," including in Colombia and Guatemala. Personnel will pre-screen persons to determine legal US immigration pathways, including refugee resettlement, parole programs, family reunification or labor-based visas. DHS says it expects to process between 5,000 to 6,000 persons per month in the centers. Spain and Canada are reportedly willing to take some migrants processed at the centers.
Launch a 60-day "surge campaign" with Panama and Columbia to disrupt criminal smuggling networks, particularly through the Darien corridor. The State Department will also work to combat smuggler misinformation by broadcasting accurate information about US migration laws and engaging with regional audiences to counter smuggler narratives.
Increase removals for persons already in the US illegally by scaling up the number of removal flights per week, including those to Cuba which paused during COVID-19. DHS claims that the number of weekly flights will double or triple for some countries.
Detention of Families
Reporting in March indicated that the Biden Administration was considering the return of temporary detention for families crossing the US border illegally, but the idea has been dropped for now. A DHS official stated at a House hearing (April 18) that that "at this time, there's certainly no plan to restart family detention in any way, shape or form."
The Administration dropped family detention in early 2021, using family-designated detention facilities for single-person detention use. Alternatives to detention for families have been used since that time, such as ankle bracelets and traceable cell phones, to ensure immigration process compliance while their cases are adjudicated.
The prior reporting indicated that the Administration was considering family detention limited to a maximum of 20 days (per previous court-imposed limitation) instead of the many weeks and sometimes months of detention some families faced encountered under prior Administrations. Investigations conducted during both the Obama and Trump Administrations found numerous issues–food, sanitation, security, and medical care–that caused physical and potentially mental harm to immigrant children.
TPS for Nicaraguan Immigrants
The Biden Administration is reportedly considering re-designating Nicaraguan immigrants as eligible for Temporary Protected Status (TPS). TPS-designated persons can live and work in the US as long as the designation is in force.
Persons from 16 countries currently have approved TPS designations; the current Nicaraguan designation covers 4,450 persons. For the Nicaraguan group, persons must have been in the US since 1998. More recent persons will require a new designation to be eligible.
Similar to other immigrant groups, a record number of Nicaraguans fled Nicaragua in 2022 to try and enter the US–nearly 164,000–due to political persecution and poor economic conditions. If the Administration moves forward, the number of persons deemed eligible to stay in the US legally will depend on the specifics of the TPS designation (e.g., the dates a person must have arrived).
Rule on Immigration “Circumvention”
The Department of Homeland Security (DHS) published (February 21) a proposed rule– “Circumvention of Lawful Pathways”–that is intended to further discourage persons from arriving at US borders without any advance notice.
In January as part of a broader set of border control actions, DHS had said it would propose a regulation to address asylum-seekers who cross illegally without participating in a parole program, and without requesting protection in advance of showing up at the southern US border.
Overall, this proposed rule puts a process in place that would deem persons ineligible for asylum (with limited exceptions) if they cross the southwest land border without authorization, and without having (1) availed themselves of existing lawful processes, (2) presented at a port of entry in compliance with this rule’s requirements, or (3) been denied asylum in a third country through which they traveled. Such persons could face US expedited removal procedures.
That being the case, such persons will nevertheless still have the opportunity to seek a credible fear determination against removal to a country where they could face persecution or torture, which means that if ruled in their favor they could be eligible to enter and stay in the US while their case is fully adjudicated.
The proposed rule will undergo a 30 day public review and comment period. DHS is planning on implementing any final version of the rule on May 11, the end date of the current COVID-19 Public Health Emergency which also ends Title 42-based immigration restrictions.
New Border Actions
The Biden Administration, in advance of a planned Presidential visit to El Paso on the southern US border on January 8 and a leader meeting with Mexico and Canada in Mexico City (January 9-10), announced (January 5) a number of actions to address the border situation.
The key measures announced included:
Increasing the use of Expedited Removal procedures for persons attempting to illegally enter the US who do not have a legal basis to remain. Under Expedited Removal, such persons will be removed to their country of origin and subject to a five-year ban on reentry.
Extending the immigration parole process in place for Venezuelans, to nationals of Nicaragua, Haiti, and Cuba. Under the expanded program, up to 30K persons per month from these four countries will be eligible, but they will need to have an eligible sponsor and pass vetting and background checks. If approved, they can come to the US for a period of two years and have a work authorization. Persons attempting to illegally cross will be ineligible for the parole process and will be subject to expulsion to Mexico, which will accept up to 30K persons per month tied to such expulsions.
DHS and DOJ will propose a regulation intended to encourage persons to seek orderly and lawful pathways to migration and reduce overcrowding along the southwest border and the strain on the immigration system. DHS Secretary Mayorkas indicated the rule would address asylum-seekers who cross illegally without participating in a parole program and without first requesting protection in another country on their way to the US.
DHS will enable the use of the CBP One app for noncitizens to schedule appointments to present themselves at ports of entry. The initial focus of the app’s use will be for persons seeking an exception to the Title 42 public health order.
Increasing refugee resettlement from Latin America and the Caribbean this year and next year––up to 20K refugees. There were only about 2,500 refugee admissions in FY 2022 from Latin America and the Caribbean off of a 15K ceiling.
Help and encourage partners in the region meet commitments under the Los Angeles Declaration, some of which the Administration claims are already taking actions to implement “new regularization or temporary protection policies” to migrants, such as Columbia, Ecuador, Costa Rica, and Belize. Mexico and Guatemala have “significantly grown” their asylum system, according to the Administration.
Provide $23 million worth of additional humanitarian assistance for Mexico and Central America to help support shelter, health, legal assistance, mental health and psychosocial support, water, sanitation, hygiene products, gender-based violence response, livelihoods, other protection related activities, and capacity building for partners.
DHS and DOJ will surge asylum officers and immigration judges to review asylum cases at the border more quickly. The agencies will also expand capabilities to support faster processing, including by installing phone lines and privacy booths to conduct interviews and proceedings. DHS is hiring additional border agents and officers, and is scaling up immigrant removal transportation capacity.
The State Department is expanding media outreach to ensure timely and accurate information is reaching migrants about US immigration policy. Messaging and outreach will target high out-migration communities and migrant routes through relevant communications channels with an estimated reach of over 85 million potential migrants.
Remain in Mexico Policy
A District Court ruled (December 15) that the Trump Administration's "Remain in Mexico Policy" must remain in place while the Court considers litigation that seeks to keep the policy in place.
The Department of Homeland Security (DHS) moved to end the policy in August, after a 5-4 majority opinion by the Supreme Court in June held that the Biden Administration does have discretionary authority under current immigration law to cancel the policy. The policy generally kept asylum-seekers in Mexico while their asylum cases were considered (even though adjudication of any single case could take months or years).
While the Supreme Court ruled on DHS authority, it left to the lower District Court a decision on DHS compliance with Federal administrative procedures with respect to its decision to drop the policy. It is not clear how long the District Court will take to rule on the matter.
“Dreamers” Program Uncertainty
The Deferred Action for Childhood Arrivals (DACA) program faces new uncertainty in light of a Federal Appeals Court decision (October 5) which held that DHS does not have legal authority for the DACA program as articulated under the 2012 DACA policy memorandum developed and implemented by the Obama Administration.
The Court did not, however, make a decision on DHS’s final DACA program regulation implemented in August (2022), therefore leaving the DACA program in place and sending the matter back to a lower District Court for its consideration of the regulation and program.
Ultimately, however, DACA could be ruled invalid based on the Appeals Court decision, or the matter could eventually be elevated to the Supreme Court. If elevated to the Supreme Court, it is possible that the Court could consider this issue in the spring of 2023. Or, it could be deferred to the 2023-2024 Court session, with a ruling sometime in 2024.
The DACA program only applies to those persons who, among other things, arrived in the U.S. by age 16 and before June 2007 and have continuously resided in the United States since that time. Persons granted DACA status can legally access a renewable, two-year work permit.
An estimated 616K DACA holders (a.k.a "Dreamers") exist today. Another 55K holders are currently in the adjudication process but are on hold pending the final outcome of court cases. DACA is not available to the many tens of thousands of children brought to the United States (or arriving unaccompanied) since June 2007. Such children may be eligible to stay in the United States because of other immigration authorities, or may not and may eventually be required to leave.
Ultimately, Congressional action on new/modified immigration laws is necessary to address this immigration issue and overcome decisions of the courts. Republican leaders have not supported immigration reform laws in the recent past, only increased immigration enforcement, and Republicans will lead the House of Representatives starting in 2023.
A group of major businesses sent a letter (October 20) to Congressional leaders urging action on legislation to permanently ensure residency protections for those in the DACA program. Businesses cited the significant potential job losses for such persons if the program were to expire.
Special Process Implemented for Venezuelans
DHS announced (October 12) the implementation of a special process for Venezuelans trying to cross the southern U.S. border. The process is similar to the one implemented when Ukrainians started showing up at the southern border following Russia’s invasion of Ukraine in February.
Venezuelans seeking to enter the U.S. via asylum laws using the new special process will have the opportunity to be granted immigration parole while their asylum case is adjudicated, but those merely trying to enter the southern border outside of the process will be returned to Mexico and will be deemed ineligible for parole in the future.
Among other things, to be eligible for parole under the process a Venezuelan needs to have a U.S. supporter to provide financial and other support, and pass background checks. Persons will be deemed ineligible, among other reasons, if they tried to illegally enter the U.S. during the previous five years and were removed, or if they “irregularly entered” Mexico and Panama after the date of the announcement of the special process.
DHS said at the time of the process announcement that it is targeting an estimated 24,000 Venezuelans to legally enter the United States under the process, though it is not clear for what time period this estimate covers. In addition, the agency believes that more than 25% of Venezuela’s entire population has left the country, with many residing in nearby countries. Panama said it was seeing more than 3,000 people, mostly Venezuelan nations, cross into its territory per day via Colombia. And, the U.S. saw average monthly unique encounters of Venezuelan nationals at the southern border exceed 25,000 in August and 33,000 in September. Unique encounters of Venezuelan nationals rose 293 percent between FY 2021 and FY 2022, while unique encounters of all other nationalities combined increased 45 percent.