December 2020
In the final days of 2020, there is reason for hope: the end of both the pandemic and the Trump presidency are in sight. But while this grueling year is ending, its crises are not. For immigrants and immigration, the damage can be measured in both restrictive policies — of which there are nearly 1,000 over the last four years — and in the people who were denied the opportunity to migrate. We are confident that the Biden Administration will work towards undoing the harm and rebuilding our immigration system, but that change will come gradually. Here are just a few developing stories we encourage you to keep an eye on in the new year:
DACA
After a federal judge ordered the Trump Administration to fully reinstate the DACA program, USCIS confirmed that they would once again accept applications for first-time DACA, two-year renewals, and advance parole. Six months after the Supreme Court’s ruling in June, the DACA program is finally restored.
But the ruling provides what could be only temporary relief for Dreamers, who have spent the entirety of Trump’s presidency in legal limbo. A separate lawsuit is still pending in Texas, and this time the court will be asked to evaluate the legality of DACA itself — a question the Supreme Court avoided, ruling instead on the process through which it was rescinded. Judge Hanen, a Bush appointee who ruled against the DAPA case in 2015, will hear the case on December 22. His decision could shape what the Biden Administration is legally able to do for Dreamers after inauguration.
Asylum
On December 9, the Trump Administration issued new, sweeping asylum restrictions in an effort to further decimate the system on their way out the door. The new rule makes it easier for immigration judges to dismiss asylum applications as “frivolous”, raises the legal burden of proof for asylum seekers — who now have to prove they will suffer “a severe level of harm” if returned to their home country — and effectively eliminates asylum for those fleeing gang or gender-based violence. After the Remain in Mexico policy, a suite of restrictions brought on by the pandemic, and years of piecemeal restrictions on the asylum system — including an agreement finalized on December 15 that allows the United States to deport asylum seekers to El Salvador — this is the final nail in the coffin.
The Executive Office for Immigration Review issued a memo providing guidance on the final rule on December 11, which warns that the new regulations can be applied to pending cases filed before their implementation. The process cements the rule as the new status quo and definitively shifts the burden of proof onto the administration seeking to revoke it.
The rule will take effect on January 11, 2021, with just nine days left in President Trump’s term. But because this rule went through the full regulatory process, unwinding it will be slow and burdensome, leaving the new restrictions intact for the foreseeable future.
TPS
Temporary Protected Status (TPS) benefits for an estimated 400,000 immigrants from El Salvador, Honduras, Haiti, Nepal, Nicaragua, and Sudan will be extended for another nine months. The protections were set to expire in early January. Litigation regarding the Trump Administration’s rationales for ending the TPS designations has been delayed, and as a result, the injunction ordered in Ramos v. Nielsen remains in place.
The recent extensions are not a response to Hurricanes Eta and Iota, which devastated Central America last month. Honduras and Guatemala have both appealed to the Trump Administration asking that citizens of their countries who are currently in the United States be spared deportation in light of the disaster. The extension announced by the Trump Administration is unrelated to those requests and only coincidentally includes Honduras. Both requests will likely remain pending for a Biden Administration.
Climate disasters are sure to intensify with global warming, and without sweeping policy change, millions of Central Americans will make their way to the U.S.-Mexico border with no functioning asylum or immigration system to appeal to.
Vaccine Rollout
As vaccinations begin, states are still designing ad hoc distribution plans and a federal distribution and data tracking project raises some concerns over patient privacy. Several state leaders are uneasy about the CDC’s instruction for states to sign data use agreements that require them to collect and share personal information with the federal government. Many fear that data could be shared with immigration enforcement, and undocumented immigrants would therefore be dissuaded from getting vaccinated.
New York Governor Cuomo issued a letter to the Secretary of Health and Human Services urging the federal vaccination program to fund outreach to Black, Brown, Asian, and low-income communities and eliminate data sharing that could put undocumented immigrants at risk. The letter proposes a modified system that tracks vaccinated individuals without revealing private information like Social Security numbers, passport numbers, or driver’s license numbers.
The federal government claims no identification numbers will be requested, but that collecting personal data on name, ZIP code, race, ethnicity, age, and address is critical to track potential complications and ensure every patient receives a second dose of the vaccine.
This vaccine promises to end a pandemic that has disproportionately harmed immigrants, low-income communities, and people of color. Distribution efforts must intentionally build trust between those administering and receiving the vaccine, a process that will require culturally sensitive and linguistically diverse communication efforts and a guarantee that personal data will not be shared with federal immigration agencies.
I hope you and yours stay healthy and enjoy the holidays as this year comes to a close. Thank you for your partnership as we continue to fight for the future of immigrants and immigration in 2021.
In deep solidarity,
Marshall Fitz
