Migrant Center September Newsletter

MIGRANT CENTER FOR HUMAN RIGHTS

Providing Free and Low-Cost Legal Services to

Detained Asylum Seekers in Texas

SEPTEMBER
NEWSLETTER

IMMIGRANT VOICE:

ICE Deports Me: What Happened on My Flight Home

-- By Alexander (name changed to protect confidentiality)

To deport us, immigration takes us out of the dorm rooms at the detention center around 3:00am. They tell us at this same time that they are going to deport us. Attorney, because of the problems we have, our worry is great.

They give us back the clothes that we arrived in and they put chains on our feet and hands. Being tied up feels bad, truly. They treat us like we are dangerous criminals even though this is supposed to be just a deportation.

Continue Reading Here

BACKGROUND: Alexander, who has a strong case for protection, was ordered deported at a pro se hearing before the Immigration Judge. Denial rates in Immigration Court have skyrocketed recently (see green line in chart below). The Board of Immigration Appeals subsequently affirmed the decision in a brief two-page statement that parroted several material factual errors nowhere supported in the record. See Important News below for more about how the current Administration has been stacking the Board with immigration hardliners.

Stay Tuned for a Special Report: The Migrant Center is traveling to the border in October (Laredo, TX) to help refugees stranded in Mexico under the Remain in Mexico program fight for protection in U.S. Immigration Court.

Of the 45,000 refugees forced to wait for their court hearings in dangerous conditions in Mexico, often without regular access to shelter or food, less than 2% have been able to obtain the legal representation of a U.S. immigration attorney.

80% OF CREDIBLE FEAR INTERVIEWS PREPARED GRANTED

The Migrant Center helped six detainees seeking asylum prepare for their Credible Fear Interviews during the month of August from Niger, the Democratic Republic of the Congo, Nigeria, Guinea, and Angola. Of the six detainees who we prepared for their Credible Fear Interviews during August, five received a positive determination (one was denied due to having left his country years ago and we are currently working on a Request for Reconsideration for him based on future fear of political persecution). The Credible Fear Interview is the first step toward applying for asylum withholding of removal, or protection under the Convention Against Torture for detained immigrants who would otherwise be subjected to expedited removal and a quick deportation without the right to see a judge. In this interview, an asylum seeker who has expressed fear of returning to their home country is interviewed by a USCIS Asylum Officer, who makes a determination of whether s/he has a significant possibility of prevailing on their claim for protection. Read more about this process here. Receiving a positive decision also often makes an asylum seeker eligible for release from detention.

MIGRATION MONTH EVENTS

To increase awareness of the immigrant experience in our community, to create spaces for reflection and discussion on our country’s policies, to provide asylum trainings to legal professionals, and to kick off our end-of-year giving campaign, the Migrant Center is hosting a Migration Month in collaboration with Cherrity Bar and other partners in the community. We hope that you will be able to make one or all of these events. And please spread the word.

October 3^rd:

Whether you can attend in person or via livestream, please consider making a donation to support someone in ICE detention. We rely entirely on individual contributions to provide “grants” for legal services to detained migrants. Many nonprofits raise a significant portion of their annual budget during the last several months of the year. The Migrant Center’s 2020 proposed budget is $100,000 and we are seeking to raise half this before December 31^st. As a 501(c)(3) nonprofit all donations are tax-deductible. Thank you for your consideration.

APPEAL OF THE MONTH

We are looking for Legal Service Sponsors to underwrite the cost of declaration preparation for asylum seekers from Guinea, Angola, the Democratic Republic of the Congo, and Cameroon who have requested our assistance. Each declaration requires five visits to the detention center (10 hours of travel plus wait time) and about 10 hours of client-meeting time and 10 hours of office preparation time to review and type everything up in English. Our cost is $500 per declaration.

Here’s what one of our volunteers says about the declaration writing process:

Assisting an asylum seeker in preparing their declaration is one of more challenging aspects of our work. The immigrants we assist are under the burden of a difficult legal process and the pressure to explain to a judge from an unfamiliar culture why they fear for their lives. This means that discussing the most important part of their case – the reason they fled their countries and are seeking safety – can be emotionally and physically draining for them. Despite their best intentions, it is often difficult for them to open up initially to someone assisting them, much less a judge or opposing counsel, to explain what they’ve been through and why they fear deportation. This is one of the reasons writing a declaration takes time.

I recently assisted a young Honduran man who had been kidnapped by a criminal organization that received assistance from government officials and was forced to work for them. Following his escape, he eventually reached the United States, where he assisted law enforcement in uncovering the operations of the criminal organization that persecuted him.

While the father’s asylum case was being processed, the criminal organization continued to threaten his family. We helped relate these events to the court in a supplemental declaration, which involved several sessions of interviewing him and drafting a brief recounting these events. Having already suffered threats, torture, and multiple family deaths, the young man faced great difficulty speaking about the danger that his daughter and father continued to face. It was also painful to relate the psychological effects of these events on him and his family – like many detainees, he responded to the burden of detention and the possibility of returning to a dangerous situation by initially guarding himself and repressing his anxiety, which then resurfaced during our interviews helping us explain his fear to the court.

As attorneys, we help asylum seekers accurately, effectively, and completely convey their testimony. Our duty is to continue inquiring about and investigating the most traumatic events in these migrants’ lives – events that would simply seem unimaginable in the United States – and then help them present this information accurately and honestly in a way that will be understood by a U.S. immigration judge when s/he reads the declaration (these interviews also help them prepare to testimony in court). Guiding asylum seekers through this process remains a necessary and crucial step to seek protection from persecution.

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Pro Bono Attorney Tony Ortega speaks to attendees at a Bihl Haus Arts gallery opening for work by Rocío Alvarado Lockwood, an immigrant artist from Ciudad Juarez, Mexico and El Paso, Texas. We had the opprtunity to speak to over 50 museum attendees and artists about current immigration and detention challenges and how our organization helps.

DHS DOES NOT REDESIGNATE SYRIA FOR TPS BUT EXTENDS IT FOR SOME

August 1 – DHS announced it will extend Temporary Protected Status (TPS) for the 7,000 Syrians who already have it for another 18 months due to the ongoing armed conflict but will not re-designate Syria for individuals who have arrived in the U.S. after the most recent re-designation dating back to 2016. TPS protects foreign nationals from being deported back to a country that is facing ongoing armed conflict, environmental disaster, or other temporarily dangerous conditions. Syria was first designated for TPS in 2012 after violence erupted in the country. By 2018, at least 511,000 people had been killed and nearly 7 million were displaced. In a travel advisory released April 2019, the U.S. government warns: “No part of Syria is safe from violence. Kidnappings, the use of chemical warfare, shelling, and aerial bombardment pose significant risk of death or serious injury.” You can read about the TPS program here.

DISTRICT COURT UPHOLDS RIGHT OF REFUGEES TO SEEK ASYLUM REGARDLESS OF MANNER OF ENTRY

August 2 – The U.S. District Court for the District of Columbia vacated the Trump administration’s interim final rule which said that refugees who crossed into the United States away from a port of entry after November 9, 2018, are ineligible for asylum. The court found that the rule violated federal immigration laws and the Administrative Procedure Act. The case is O.A., et al., v. Trump, et al. Here is the plaintiff’s complaint and the government’s argument in the Federal Register. The United Nations has issued a study explaining the right to asylum regardless of “illegal” presence.

August 2 – Federal District Judge Hazel issued a Temporary Restraining Order blocking implementation of USCIS’ May 31^st policy limiting protections for children under the Trafficking Victims Protection Reauthorization Act (TVPRA). The four plaintiffs also argued violations of the Administrative Procedure Act, and the 5th Amendment to the Constitution. The court’s decision applies retroactively. The USCIS policy, adopted without advance notice or opportunity for public comment, requires asylum officers to re-determine whether an asylum applicant who had already been found to be an “unaccompanied” child continued to meet the statutory definition of that term on the date of filing for asylum. The policy applies to all USCIS decisions issued on or after June 30, 2019. This means that child asylum applicants who submitted their filing after they had turned 18, or after reunifying with a parent or legal guardian, face the prospect of having USCIS refuse to decide their asylum applications, even those filed long ago. The TVPRA exempts children who arrive in the United States without a parent or legal guardian from the one-year deadline to file asylum, allowing them more time to find an attorney and make their case.

DHS RESTRICTS ACCESS TO U VISA PROTECTION FOR VICTIMS OF CRIME

August 2 – ICE released a new fact sheet – but not the actual policy intended to replace long-standing guidance – limiting when they will grant “stays” of deportation to crime victims who have cooperated with law enforcement investigations applying for a U visa. ICE will no longer follow its policies to ask USCIS – the agency in charge of granting U-visas – what the likelihood is that a pending case will be approved before denying a stay of removal request and proceeding with deportation. Instead of considering a positive USCIS determination of prima facie eligibility, ICE officers will have sole discretion to "review the totality of the circumstances." One 2018 survey of 140 immigration attorneys representing U-visa applicants in 30 states showed how ICE was already not requesting prima facie determinations at all or, in some jurisdictions, would only consider it for applicants in detention. Although federal statute INA 237(d) specifically mentions the “prima facie” analysis when considering U visa applicants’ stay requests. ICE will now require that USCIS waitlist the petitioner and grant them deferred action first. USCIS currently taking between 51.5 and 52 months to decide cases from the time of filing to consideration on the waitlist. This means that survivors who cooperate with law enforcement to increase public safety will now risk potential deportation before their cases are ever heard and, knowing this, may be more hesitant to report crime. There have been reports that more abusers are using the threat of deportation to control their victims and that victims are too scared to call the police for fear of being deported and/or separated from their children.

Last year, the Attorney General limited immigration judges' authority to close cases administratively while a U-visa applicant awaits a USCIS decision on their case. Watch our Executive Director speak about this case. The Third Circuit has also held that U visas for derivative applicants may be denied if processing delays mean that the derivative “ages out”, i.e. gets older than the eligibility cut off after the date of application. In other areas of the law USCIS processing delays are not allowed to divest an otherwise eligible applicant under the Child Status Protection Act. And since last November, applying for a U-visa in the first place has gotten riskier, as a denied application might lead to removal proceedings. Read our Policy Analysis for why the way U-visas are adjudicated makes no senses and is harmful to immigrants.

DHS ENCOURAGES LAW ENFORCEMENT TO NOT HELP CRIME VICTIMS

August 5 – DHS published a new U visa Law Enforcement Resource Guide which encourages law enforcement to limit their issuance of U visa certifications for victims of crime who assist law enforcement including by encouraging them to not issue certifications if a lot of time has passed (often times, survivors may not know that U visa protections exist, or else may be impacted by the trauma following their victimization to learn more about the program so this suggestion is ultra vires to the U visa statute and regulations and counter to DHS purported dedication to “promoting a Victim-Centered Approach”). Furthermore, it creates unnecessary barriers for survivors to access U visa certifications such as strongly recommending additional background checks, conflicts with existing authority, and contravenes bipartisan Congressional intent in establishing this critical protection. In 2000, when a bipartisan majority of Congress created the U-visa for immigrant victims of crimes as part of the Trafficking Victims Protection Act (TVPA), the move was intended to encourage undocumented survivors who suffered "substantial physical or mental abuse" to come forward, thereby strengthening public safety efforts. The understanding was that, in being allowed to remain in the country, they would be able to cooperate with law enforcement in criminal investigations, therefore helping improve public safety.

DOJ SETTLES DISCRIMINATION SUIT AGAINST TEXAS FOOD COMPANY

August 5 – DOJ reached a settlement agreement with R.E.E. Inc., which owns and operates McDonald’s restaurants in the Texas Rio Grande Valley, resolving claims that its restaurants violated the anti-discrimination provision of the Immigration and Nationality Act by requesting specific work authorization documents from non-U.S. citizens.

DENVER VOTES TO NOT WORK WITH CORECIVIC AND GEO GROUP

August 5 – Denver City Council voted to not sign $10.6 million in renewal contracts for CoreCivic and GEO Group. The companies run a total of six community corrections facilities, or “halfway houses,” where people can live and work as an alternative to prison. The state Department of Corrections will have to decide whether to find prison space for more than 500 people or grant them parole. The two companies have the “lion’s share” of the ICE detention contracts. GEO runs the ICE detention facility in Aurora, where federal inspectors recently found violations such as the unnecessary use of handcuffs.

JUDGE CERTIFIES CLASS IN SUIT ALLEGING GOVERNMENT BARES THE BURDEN OF PROOF THAT AN IMMIGRANT NEEDS TO BE DETAINED

August 6 – Federal district judge Saris certified a class action complaint alleging the government is illegally detaining immigrants and not honoring their due process rights by placing the burden of proof on the immigrant to prove they are not a danger or flight risk. In the criminal justice system, the government must prove to a judge why a detainee needs to have their liberty taken away but, since a 1999 Board of Immigration Appeals decision, the burden has been on immigrants. The complaint alleges this is unconstitutional.

TRUMP MOVES TO DEPORT CHILDREN RECEIVING LIFE-SAVING MEDICAL CARE AND THEIR FAMILIES

August 7 – The Trump administration eliminated deferred action for immigrants and their relatives who receive life-saving medical treatments or endure other hardships. According to USCIS, the agency receives about 1,000 deferred action requests per year that are related to medical or financial hardships, such as cancer, cystic fibrosis, HIV, cerebral palsy, muscular dystrophy, epilepsy and other serious conditions, many which cannot be treated as effectively in the immigrants’ home countries. Immigration officials issued letters issued to families in Massachusetts, California, North Carolina and elsewhere, giving them 33 days to depart the U.S. or face deportation proceeding, which can hurt future visa and immigration requests. These letters did not explain that the individuals can seek deferred action with ICE. Deferred action can qualify someone for government-funded health benefits and permission to work while their children receive medical treatment. The new policy affects all pending requests, including renewal requests. The only exception is for military members and their families.

August 30 – 110 members of Congress sent a letter asking DHS to clarify the policy shift, explain the rationale behind it, say why the public and Congress were not notified. USCIS says it denies the majority of these requests for temporary relief from deportation. ICE said it does not accept "applications" for deferred action although the agency can choose not to prosecute a case.

September 2 – USCIS announced that it will re-open deferred action cases “that were pending on August 7."

DOJ MOVES TO DECERTIFY IMMIGRATION JUDGE’S UNION

August 9 – The DOJ moved to decertify the National Association of Immigration Judges, the 40-year-old collective bargaining union that represents federal immigration judges. The union has publicly pushed for judges to have more independence and has been critical of the DOJ’s imposition of numeric quotas, among other things. Legislation to eliminate the quotas – which can pressure judges to move cases too quickly at the expense of due process – is pending. Judge Ashley Tabaddor, the association’s president, thinks that the petition’s intent is to “take full control of judges without having a balancing force.” The House Judiciary Committee stated that: “The Trump Administration has taken unprecedented steps to strip immigration judges of judicial independence by limiting their ability to manage their dockets and make informed discretionary decisions.”

USCIS PUBLISHES PUBLIC CHARGE RULE TO EXCLUDE MORE PEOPLE FROM VISAS AND GREEN CARDS

August 14 – After making an announcement on August 12, USCIS published a final rule that sets new standards for how DHS will determine inadmissibility to the United States based on an individual’s likelihood of becoming a public charge. DHS, which oversees USCIS, has said that 382,000 residency petitions will be affected.

Regulations put in place in 1996 define "public charge" as someone who is "primarily dependent" on government assistance, meaning it supplies more than half their income. The new rule defines as a public charge any person who “receives one or more public benefits [from the list]… for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months).” This includes food stamps, Medicaid, and Section 8 housing.

Furthermore, immigration officials are directed to look more closely at a variety of circumstances including income, age, education, skills, health, family status, language, and whether the immigrant has an affidavit of support. Negative factors include:

Exceptions exist for refugees, active duty military, Medicaid for pregnant women, children under 21 years old, and emergency medical care. The American Immigration Lawyer Association has summed up the rule here. The policy will become effective 60 days later, on October 15, 2019.

Already, the proposed version of the rule has exerted a chilling effect on immigrant families who are forgoing the essential services they are legally eligible for. For example, parents of children with disabilities who receive special services at school are considering removing them from school. One study found that about one in seven adults, or nearly 14% of 1,950 individuals, in immigrant families reported that either they or a family member did not participate in a safety net program because of fear of risking residency status in the future. In short, immigrant parents must make tough choices between getting their children the nutrition, healthcare, and housing they need, and fears that they are reducing the odds that their families will be permitted to remain together in the country.

Additionally, schools that serve low-income students could lose funding when the percentage of students who qualify for free and reduced-price meals decreases, resulting in the school’s official – if not actual – poverty rate decreasing and consequent cuts to funding that will affect all children. Loss of nutrition and health benefits, like loss of housing, leads to poorer educational outcomes. 275,000 students could be affected.

STATES FILE SUIT ON NEW DEFINITION OF PUBLIC CHARGE

In several lawsuits, 17 states plus DC and at least one county are arguing that the new definition of “public charge” is inconsistent with Congress’ intent in the Immigration and Nationality Act, that it violates constitutional equal protection guarantees by effectively targeting immigrants from poorer countries, that it infringes on states’ rights to protect their own residents, and that it punitively, arbitrarily and capriciously targets immigrants for using public benefits programs that are used by about half of the U.S.’s residents.

August 13 – San Francisco and Santa Clara county in California filed a lawsuit.

August 14 – 13 states sued saying that the rule change is a "radical overhaul" of federal immigration law that gives wealthy immigrants an advantage. The states argue that, although the INA allows immigration authorities to deny admission to the U.S. to someone likely to become a “public charge” – a term that has been understood for centuries to mean someone primarily dependent on the government for support –the new rule expands the definition to deny admission to adults who make nearly any use of various government assistance programs. The states claim the new rules will cause "irreparable harm to the working families and children" who live in each of the states. The states are: Colorado, Delaware, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, Rhode Island, Virginia and Washington.

August 20 – New York, Connecticut, and Vermont announced a lawsuit arguing that the new rule is against congressional intent and longstanding case law, which has held that immigrants who use basic, noncash benefits are not considered public charges. The plaintiffs allege that the rule "weaponizes the public charge inquiry to specifically target immigrants of color, immigrants with disabilities, and low-income immigrants." Furthermore, the lawsuit claims, the rule "fundamentally misunderstands" that noncash programs aim to help immigrants with limited resources to achieve upward mobility.

NINTH CIRCUIT UPHOLDS FLORES SETTLEMENT AGREEMENT

August 15 – The Ninth Circuit U.S. Court of Appeals upheld the Flores Settlement Agreement, which upholds important rights of immigrant children in federal custody to safe and appropriate placement during federal immigration custody, as well as a fair opportunity for release pending proceedings to determine whether they may remain in the United States. The Court of Appeals "emphatically disagreed" with the Government's position, finding that minors (1) were "not receiving hot, edible, or a sufficient number of meals during a given day," (2) "had no adequate access to clean drinking water," (3) experienced "unsanitary conditions with respect to the holding cells and bathroom facilities," (4) lacked "access to clean bedding, and access to hygiene products (i.e., toothbrushes, soap, towels)," and (5) endured "sleep deprivation" as a result of "cold temperatures, overcrowding, lack of proper bedding (i.e., blankets, mats), [and] constant lighting." After so finding, the district court concluded that these conditions fall short of paragraph 12A's requirement that facilities be "safe and sanitary," especially given "the particular vulnerability of minors." A lawsuit challenging detention conditions in CBP custody remains pending.

Previously, in 2017 the district court ruled that the government was violating the 1997 Flores Settlement by detaining minors in unsanitary and unsafe conditions at Border Patrol stations. These findings were based on evidence that minors in border patrol custody were held in conditions that deprived them of sleep and did not provide adequate access to food, clean water, and basic hygiene items. Numerous reports document the poor conditions in custody, including the cold temperatures in CBP holding cells, called hieleras (Spanish for “iceboxes”), lack of mattresses, pillows, or blankets, overcrowding, needing to sleep on cold concrete floors and benches in constantly lit rooms, and denial of medical care. The district court found that although the Flores Settlement "makes no mention of the words 'soap,' 'towels,' 'showers,' 'dry clothing,' or 'toothbrushes,'" these hygiene products fall within the rubric of the Agreement's language requiring 'safe and sanitary' conditions. The government appealed arguing that the lower court had improperly "modified" the terms of agreement. The government argued children were not entitled to soap, blankets, or toothbrushes.

TRUMP ISSUES RULE TO DETAIN CHILDREN LONGER

August 23 – The Trump administration released a regulation that would allow migrant children to be detained indefinitely. The new rule, which goes into effect in 60 days if approved by the court, would end the 1997 Flores Settlement Agreement, which put in place protections for migrant children who arrive at the border including that they be placed in the least restrictive setting possible and that detention not exceed 20 days. In December 2018, the average stay in the children’s detention facility at Tornillo, Texas, was 50 days, caused in part by a Trump policy of increased background checks. A 2017 American Academy of Pediatrics report concluded that detained immigrant children experience high levels of mental health problems such as anxiety, depression and post-traumatic stress disorder during and after detention. Detaining children with their families does not significantly mitigate this severe mental health impact. Long-term detention only increases the likelihood of lasting effects. Doctors who inspect the facilities have sent a letter to Congress about their concerns in an effort to get the government to improve medical care. The government claims that eliminating the Flores Settlement and detaining families longer will deter immigration and therefore ease overcrowding at CBP facilities.

NINTH CIRCUIT LIFTS NATIONWIDE INJUNCTION HALTING REMAIN IN MEXICO

August 16 – The Ninth Circuit Court of Appeals decided to allow the Remain in Mexico policy to continue outside the jurisdiction of Ninth Circuit,. As a result the Administration can continue returning asylum seekers to Mexico if they arrive at the border in either New Mexico and Texas.

August 17 – USCIS emailed incorrect guidance to asylum officers saying to apply the policy to all individuals who have filed affirmative asylum applications on or after the date the policy was implemented on July 16, instead of correctly applying the policy to those who entered on or after July 16. Many people filing applications after this date arrived in the U.S. before this date and so should not be subject to this policy.

DHS LISTS FACTORS THAT USCIS SHOULD USE TO DECIDE WHETHER TO GRANT WORK PERMITS TO IMMIGRANTS PAROLED INTO THE U.S.

August 19 – DHS issued new guidance to USCIS officers on when they can use their discretion to deny work authorization to immigrants paroled into the country for urgent humanitarian reasons or significant public benefit under 212(d)(5). This is the category under which asylum seekers who present themselves at a port of entry are released after showing a significant possibility of winning their asylum case. DHS gives a list of factors DHS cites the “crisis” at the border as the reason for needing to issue this directive.

ORGANIZATIONS SUE FOR “DELIBERATE AND SYSTEMATIC” DENIAL OF MEDICAL CARE IN DETENTION – READ WHAT OUR CLIENTS HAVE TO SAY

August 19 – A group of organizations sued the Trump administration stating that official policies and lack of oversight have led to major lapses in medical and mental health care, and accommodations for those with disabilities, in nearly 160 detention facilities across the country, including delays and denials of medical care and overuse of solitary confinement. The complaint alleges that a deliberate and systematic denial of care has let to permanent harm and 24 deaths in the last two years. Many other lawsuits have been filed on behalf of particular individuals and against conditions at specific facilities, without noticeable improvement.

There are currently about 55,000 migrants at both privately and publicly run detention centers and county jails. The Trump Administration has grown the detention population more than 60 percent over the past two years, without additional staff or resources for health care, including by increasing the use of county jails and privately contracted facilities, where medical care is often worse and oversight less (a nurse may be the most senior medical staff at some facilities). ICE continues to work with private medical providers that have faced numerous lawsuits and accusations of serious medical neglect, has failed to maintain records, and has persistently ignored internal oversight and Government Accountability Office reports calling out deficiencies in health care that led to deaths.

Infectious diseases, like outbreaks of mumps and chickenpox, that were previously rare have also spiked in overcrowded facilities. Read here for Jeovany’s story about the effects of the multiple times he’s been put into medical quarantine. Jeovany is not alone in facing extended time in detention due to medical incompetence. Read David’s story here about medical care at Pearsall and read here for Marta’s story about psychological support services at Pearsall. The Migrant Center has filed release requests in collaboration with external medical professionals that have been uniformly denied by ICE. This is part of a pattern of release denials increasing under the Trump Administration. The average cost for ICE to detain someone for one day is $126.52.

NORTH CAROLINA GOVERNOR VETOS ANTI-IMMIGRANT LAW

August 21 – North Carolina Governor Cooper vetoed HB 370, which would have instituted laws that force sheriffs and police to collaborate with a deeply problematic agency like ICE disrupt important accountability work with law enforcement and sowed divisions amongst communities that North Carolina can no longer afford.

ICE DETAINS ANOTHER IMMIGRATION ACTIVIST

August 22 – Marcos Baltazar, an undocumented immigrant from Guatemala who sits on the board of the Alabama-based immigrants’ rights group Adelante, was arrested during a routine check-in on Thursday. Since Trump took office, ICE has arrested at least 20 undocumented activists. DHS has also kept tabs on journalists and lawyers in both the U.S. and Mexico. In March, NBC San Diego obtained internal DHS files on dozens of journalists and activists the department was monitoring as part of Operation Secure Line.

Previously, in a separate case, an appeals court ruled that “public expression of [Ragbir’s] criticism, and its prominence, played a significant role in [ICE’s] recent attempts to remove him.” ICE deported New Sanctuary Coalition founder Jean Montrevil a week before Ragbir was arrested. And the week before Montrevil was deported, immigration officers in Colorado detained Eliseo Jurado, the husband of an undocumented woman who was taking sanctuary in a local church. In another case, Maru Mora-Villalpando, a founding member of the immigrants’ rights group Mijente, was served with a notice to appear in immigration court in December 2017. According to the ICE field office in Seattle, she came to the government’s attention after her “extensive involvement in anti-ICE protests and Latino advocacy programs” showed up online. And a 2018 lawsuit filed claims that ICE planted informants in Migrant Justice, a Vermont-based immigrant advocacy group, as part of a broader attempt to surveil its members and target them for deportation.

DOJ INCREASES ITS POWER TO ADJUDICATE

August 23 – The Department of Justice published a new interim final rule to give the director of the Executive Office for Immigration Review (EOIR)—a political appointee—the power to adjudicate cases and appeals that “cannot be completed in a timely fashion”, defined as within 90 days for detained cases and 180 days for non-detained cases. The director, who is currently James McHenry – a Trump administration appointee who spent much of his career as an ICE attorney – reports to Attorney General. The National Association of Immigration Judges said that “DOJ’s action ends any transparency and assurance of independent decision making over individual cases” and that "It's the final nail in the coffin of any semblance of independent decision making," Read our op-ed on why the immigration court system must be independent. This summer, the National Association of Immigration Judges (NAIJ), American Immigration Lawyers Association (AILA), and others sent a letter to Congress, calling for an independent immigration court system. There are 66 immigration courts in the United States, and about 430 judges.

The rule also formalizes the creation of the Office of Policy, which is housed within EOIR and has been in operation since 2017. The Office of Policy has initiated some of the more problematic policies issued by EOIR over the past year—including initiatives to speed up deportations and weaken due process protections—and has remained largely unresponsive to stakeholders seeking information. DOJ will accept public comments on the rule for 60 days after its publication in the Federal Register.

DUE PROCESS DECREASES AT THE BOARD OF IMMIGRATION APPPEALS

August 27 – A new rule takes effect that gives judges at the Board of Immigration Appeals – officially referred to as Panel Members – more authority to summarily deny appeals without providing any justification. The Trump administration has expanded the Board of Immigration Appeals from 17 to 21 members, thereby allowing the Attorney General to fill the panel with immigration hardliners. Six newly promoted judges grant a far lower percentage of asylum claims than the national average, including two judges who at various points in time had the lowest asylum grant rate in the country. Between 2013 and 2018, the average immigration judge in the country approved about 45 percent of asylum claims. The six judges newly promoted to the board have all approved fewer than 20 percent. Two of the new judges have suggested that asylum seekers are dishonest and trying to scam their way into the country. One of the judges issued the original decision in Matter of A-B- denying protection to domestic violence survivors. The case was reversed on appeal but then was halted by Attorney General Sessions in June 2018.

DHS TRANSFERS $271 MILLION TO IMMIGRATION ENFORCEMENT FROM OTHER PROGRAMS

August 27 – The Department of Homeland Security has informed Congress it will reprogram and transfer $271 million to ICE from elsewhere in the department, including least $155 million from the FEMA (Federal Emergency Management Agency) disaster relief fund to support its policy of returning asylum seekers to Mexico. The department plans to transfer around $116 million for ICE detention beds, as well as transportation and deportation, $23.8 million from the TSA (Transportation Security Administration) for immigration enforcement, and $4.3 million will be transferred from DHS' cyber agency. The reprogramming of funds will increase ICE's official detention capacity to roughly 50,000, whereas Congress had determined earlier this year to only fund an average of 45,274 detention beds per day, with the intent to return to 40,520 by the end of the fiscal year. According to DHS, as of August 10, 55,530 people were in immigration detention.

TRUMP MAKES CITIZENSHIP HARDER FOR CHILDREN OF MILITARY FAMILIES AND GOVERNMENT WORKERS

August 28 – The Administration issued a policy stating that children born overseas to U.S. citizen parents serving in the military or working for the federal government may no longer automatically claim U.S. citizenship. For children born after October 29, U.S. citizen parents must now prove that they lived in the United States for five years, including for two years after turning 14 and apply for their children before they turn 18. In the past, immigration officials created exceptions for members of the military and government employees who did not meet that standard because they left the United States to serve the U.S. government overseas.

Separately, the Trump administration all but ended a program that recruited immigrants with key language and medical abilities (the Military Accessions Vital to the National Interest program, suspended in late 2016), in June suspended deferred action and parole-in-place programs that gave immigrants time to sort out their status, expelling some recruits because of their family backgrounds, and deporting veterans, including those convicted of minor crimes. A Government Accountability Office report released in June found that ICE did not always follow a policy requiring them to consider military service when initiating a deportation case.

PADILLA CLASS CLARIFIED TO PROVIDE BOND HEARINGS TO THOSE SEEKING PROTECTION UNDER THE U.N. CONVENTION AGAINST TORTURE

August 29 – A federal judge approved a stipulated agreement as part of a nationwide preliminary injunction that the government must continue to provide bond hearings in immigration court to asylum seekers who are apprehended inside the U.S. who establish a credible fear of persecution or torture despite the Attorney General’s decision in Matter of M-S-.

ADMINISTRATION BLOCKS OVERSIGHT OF DETENTION CENTERS

August 29 – The House Committee on Oversight and Reform said DHS blocked them from visiting 11 CBP facilities and severely restricted access to ICE facilities after previous inspections "revealed potentially serious ongoing problems" of how migrants are treated, including staff pressuring people into signing documents in English without translation and denying them access to telephones. Reports of abuse were in line with those documented by Human Rights Watch, as well as physicians, attorneys, lawmakers, journalists, the government’s own watchdog, and even border agents themselves, describing inadequate medical care, rooms too cold for children to sleep comfortably, and rotten food or food that is not proper for young children.

Meanwhile, a lawsuit filed by 19 US states against the Trump administration documented reports of girls on their period being given just one sanitary napkin per day, even when they'd visibly bled through their underwear. They were not offered showers and were left to continue wearing soiled clothing.

STUDENT VISAS DECREASE 42.5% IN THREE YEARS

Recent State Department statistics indicate that the United States is issuing less student visas. The number fell from 677,928 in Fiscal Year 2015 to 389,579 in Fiscal Year 2018—a decline of 42.5% over three years. Much of this decline stems from new and onerous screening procedures introduced by the Trump administration. Foreign students are consequently missing entire semesters or choosing to go to college in countries that are more welcoming. The 1.1 million international students studying in U.S. colleges and universities during the 2017-2018 academic year added $39 billion to the U.S. economy through tuition, room and board—and created or supported more than 455,000 U.S. jobs in the process. Additionally, delays in processing work authorization under the Optional Practical Training Program, which allows students to work in jobs related to their major for one to three years after graduation, have increased, making it more difficult for them to contribute to the U.S. Leaders at prominent universities such as Harvard, MIT, Princeton, and Yale have written to the Department of Homeland Security, Secretary of State, and Congress urging them to remedy visa processing delays.

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