Immigration Update — August 2020

As summer draws to a close, America’s future sits at an existential crossroads. More than 180,000 people have died from COVID-19, which continues to infect and kill Black and Brown people at disproportionate rates. A national reckoning on racism and police brutality has erupted, most recently over the shooting of Jacob Blake by police in Wisconsin and the subsequent murder of two protestors by a white supremacist. But instead of calling for unity and expressing compassion, the president stokes fear and division in relentless pursuit of his “us vs them” electoral strategy. The GOP has willingly submitted to this bleak narrative and followed the president down this dark road, seemingly indifferent to the destruction it portends for the country.

Immigration might not be front of mind for most voters right now, but the administration’s crusade against immigrants and immigration remains a centerpiece of his closing campaign strategy. Here is how that played out in August:

1. Two Visions for America

This month, both parties laid out their vision for America at their respective conventions. At the DNC, Kamala Harris’ historic nomination took center stage. The daughter of immigrants, Harris is the first Black woman or Asian-American to run for vice president on a major party ticket. The DNC sharpened the contrast between its coalition of transformation and the RNC’s coalition of restoration by profiling Trump’s relentless immigration crackdown in a video narrated by Estela Juarez, an American citizen whose mother was deported to Mexico. Estela’s father, an American marine, voted for Trump in 2016. But the next four years ripped his family apart; they became collateral damage in an indiscriminate effort to deliver on a campaign promise.

The Democrats’ historically progressive policy platform promises to roll back four years of immigration onslaughts: first and foremost, a Biden-Harris Administration would drive a legislative agenda that formally recognizes undocumented immigrants as the Americans they already are. But the array of serious administrative harms that must be redressed is long; more than 1,000 immigration policies and practices have been adopted since January 20, 2017, nearly all punitive and restrictive. Among the critical reforms they have committed to include:

• Ending family separation
• Reinstituting and expanding the DACA program
• Rescinding discriminatory travel bans
• Ending wasteful border wall construction projects
• Terminating contracts with for-profit detention centers and shifting to community-based alternatives
• Rescinding the restrictive public charge rule
• Rebuilding our devastated refugee and asylum systems

And this is just the beginning. Our colleagues at the Immigration Hub and America’s Voice laid out a more complete vision for the future of immigration, in which Trump’s harms are undone and we aspire to more than a return to the status quo.

The RNC, by contrast, affirmed that a second term for the Trump Administration will yield more of the same. In lieu of a policy platform, the GOP pledged “enthusiastic support” for the President’s America-first agenda. That means:

• Continued family separation
• Further attempts to terminate DACA
• Continued Islamophobic and racist travel bans
• More wasteful wall construction and border militarization
• Escalating increases in detention, deportation, and private prison profits
• Deeper cuts to legal immigration including through continuation of public charge rule
• Anti-immigrant executive orders justified by the pandemic and a rejection of international law and our commitment to asylum seekers and refugees

Given the pandemic, a ravaged economy, and national protests over police brutality, immigration isn’t at the forefront of this election cycle. But out of sight is not out of mind, and Trump’s re-election campaign is following the 2016 playbook: anti-immigrant ads continue to dominate his battleground digital strategy. The Trump campaign has spent roughly $4 million just on immigration-related Facebook ads in 2020 — more than all other candidates and political groups combined. Our colleagues at the Immigration Hub tracked Trump’s anti-immigrant ads this month falsely claiming that a Biden Administration would grant free healthcare to and prioritize jobs for undocumented immigrants.

Immigration features prominently in the vision each party posits for the next four years. The direction we choose will define who we are, what we value, and the future of America.

2. Hundreds of Refugee Children are Detained in Hotels

The Trump Administration issued an emergency order in March that granted federal agents sweeping power to immediately return anyone — adults and children — at the border. U.S. immigration officials have expelled more than 2,000 unaccompanied children without due process since the implementation of the policy. These children are not granted registration numbers, making it virtually impossible for lawyers and advocates to locate them.

Because unaccompanied minors from countries other than Mexico must be flown home, their expulsion has been delayed by the pandemic’s travel limitations. But rather than transferring them to ORR custody — as they are required to within 72 hours under the Flores settlement agreement — CBP moved hundreds of refugee children into a clandestine network of hotels. Some are infants as young as two months old. And when these children are eventually expelled, advocates are unable to track the removal, meaning upon arrival in their home countries, most simply disappear.

While they are illicitly detained, CBP actively prevents them from accessing counsel. When an immigration lawyer tried to enter a Texas hotel holding 17 immigrants (adults and children), he was forcibly removed. Children held up signs from hotel windows saying they had no phone access but needed help; the legal counsel they are entitled to stood helplessly on the sidewalk below. As the result of an emergency lawsuit filed by the ACLU on behalf of the Texas Civil Rights Project, this group of 17 was protected from immediate expulsion — but they are only a small portion of those secretly detained.

While legal challenges mount, the administration is trying to stay one step ahead. Trump officials drafted a rule that would block asylum seekers from accessing legal protections if they had been in Mexico or Canada within two weeks prior to arrival. If implemented, it would add yet another barrier for asylum seekers and serve as another layer in the administration’s efforts to fully dismantle the asylum system.

3. The Administration Makes Its Noncompliance with the SCOTUS Decision Official. Meanwhile, Dreamers Sue for Their Right to Equal Employment Opportunities.

On August 21 — two months after the Supreme Court ruled that the DACA program must be reinstated in full — USCIS issued official guidance saying that the agency will reject all initial DACA applications and cut renewal periods from two years to one. The statement is a stopgap measure attempting to buy the administration time to find a way to rescind the program in compliance with the Administrative Procedures Act, which was violated in its first attempt.

Meanwhile, a related legal battle is winding its way through the courts: Dreamers are suing the companies who rejected them for jobs and internships due to their immigration status. The plaintiffs argue that rejections based solely on immigration status — when they have valid work permits — is a form of alienage discrimination prohibited by the Civil Rights Act of 1866. Merrill Lynch (owned by Bank of America), Procter & Gamble, Allied Wealth Partners, and VMware are all facing lawsuits for discrimination based on immigration status. The outcomes of these lawsuits have major implications for groups in addition to DACA recipients. A ruling in favor of Dreamers would likely open doors for other groups of authorized workers facing similar types of discrimination, including asylum seekers and TPS holders.

4. A Nationwide Public Charge Injunction is Narrowed to Three States

On July 29, a federal judge in New York blocked the Trump Administration from enforcing the public charge rule during the pandemic. The rule, which took effect on February 24 — when there were 14 confirmed cases of COVID-19 in the United States — allows the government to deny permanent residence to immigrants they believe are likely to use public benefits. For the undocumented, accessing critical public services might hurt their chances of obtaining legal status.

U.S. COVID cases ballooned in the weeks and months following the rule’s implementation, and it posed yet another barrier for immigrants who, like their citizen neighbors, found themselves in dire need of medical care and economic assistance. U.S. District Judge George Daniels, who issued the nationwide injunction, wrote that “as a direct result of the rule, immigrants are forced to make an impossible choice between jeopardizing health and personal safety or their immigration status.”

On August 12, however, the U.S. Court of Appeals for the Second Circuit limited the nationwide injunction to apply only to the three states in its jurisdiction: Connecticut, New York, and Vermont. The public charge rule remains in effect in all remaining states and the District of Columbia.

Despite the best efforts of the courts to hold the administration accountable, the systemic damages and human toll of nearly four years under Trump continue to mount. Please make sure you register to vote and make a plan to vote early this fall. Our immigration system — and democracy — cannot withstand a second term.