June 2020 Immigration Update

Joy. Shock. Relief. A flood of emotion. That’s what the Supreme Court decision protecting DACA produced on June 18. The stunning victory ensures that Dreamers can continue to live in and contribute to the country they call home until a more permanent solution is reached.

The DACA decision — alongside the historic LGBT ruling the same week — brought hope to an otherwise grim national outlook: The COVID-19 crisis and continued police brutality against Black Americans have revealed canyon-deep fissures in America’s social structures. Unvanquished systemic racism, nurtured by a failing, unresponsive democracy has finally forced a national reckoning. The question is whether we have the political will — and the governance tools — to redress the manifest inequities facing systemically marginalized and oppressed communities.

While the country reels, the Trump Administration quietly continues its unrelenting efforts to torch the immigration system. Aside from the DACA decision and a couple of other court rulings, the rest of the month’s immigration-related developments are uniformly dangerous:

The Supreme Court Rules in Favor of Dreamers

After months of bracing ourselves for the worst, the Supreme Court miraculously ruled that the Department of Homeland Security improperly rescinded the DACA program. DHS violated the terms of the Administrative Procedures Act by failing to account for the immense reliance interests of DACA recipients, their 200,000 U.S.-citizen children, and the broader communities they support.

By rejecting the Trump Administration’s attempt to end the program, the Supreme Court’s decision reinstates the DACA program as it had been implemented in 2012. That means individuals who hadn’t been able to apply for DACA before DHS attempted to end the program are now eligible (theoretically) to submit first-time applications. However, USCIS has yet to issue any guidelines on the matter and we encourage all those considering a first-time application to seek legal counsel. In any case, those who already have DACA should continue to renew their status.

Although this is a monumental victory for Dreamers, their communities, and activists across the immigrants’ rights movement, the work is far from over. The Supreme Court affirmed that DHS has legal authority to end the program, should it provide sufficient rationale for doing so. What’s more, the president and the agency have indicated their intent to do just that. Fortunately, the administration would be hard-pressed to complete all the necessary processes to rescind DACA before November, buying DACA recipients some much-needed time and, of course, raising the stakes for the already immensely consequential election.

DACA — and the future of our immigration system writ large — will be on the ballot. The demonization of immigrants and weaponization of immigration helped propel Trump to the White House in 2016, and he is deploying that strategy again in 2020. For example, Trump continues to far outspend everyone else on immigration Facebook ads (Democrats and Republicans alike). Between May 18 and June 6 of this year, the Trump campaign funneled $1.4 million into anti-immigrant campaign ads. To counteract this, we have to capitalize on the momentum from the Supreme Court victory and ensure that voters understand that the lives and livelihoods of Dreamers — and all immigrants — are on the line.

CBP and ICE Agents Police BLM Protests

Over the past few weeks, the murders of George Floyd, Ahmaud Arbery, Breonna Taylor, and countless others have spurred millions of Americans into action: All 50 states and dozens of countries have held protests calling to defund and demilitarize the police. In response, local police were joined by border patrol agents in cities across the country to monitor and harass protestors. CBP deployed airborne surveillance devices designed for war — like predator drones — in Buffalo, Chicago, Detroit, El Paso, Miami and Washington. In addition to escalating tensions between protestors and police, CBP and ICE agents are exploiting the protests to arrest and deport undocumented demonstrators.

The presence of immigration enforcement at police-brutality protests highlights one of the Trump Administration’s disturbing authoritarian initiatives: To merge the operations of local police with those of federal immigration agencies. ICE and CBP are the largest law enforcement agencies in the country, with combined annual spending of over $20 billion a year, and they operate within a system of limited constitutional constraints. Both local police and federal immigration agencies have long track records of lethal discrimination against communities of color. In the last decade, over 100 people have died as a result of an encounter with border patrol agents.

The threat of being profiled, detained, and deported is, of course, magnified when police can serve as immigration agents and immigration agents, can be deployed as police. That leads immigrant communities to eschew engagement with public officials, and chills the exercise of constitutional rights. Fortunately, the Supreme Court recently negated the administration’s attempts to coerce local police into assisting immigration enforcement by refusing to hear the administration’s challenge to California’s sanctuary laws, which prohibit local officials from enforcing federal immigration policy.

A Federal Judge Demands that ICE Free Migrant Children from Family Detention — But the Order Doesn’t Extend to Their Parents

Judge Dolly Gee ordered that children who have been detained for longer than 20 days in family detention centers in Texas and Pennsylvania must be freed by July 17, either by release with their parents or to an appropriate sponsor. Some have been detained since last year. Her decision declared that, due to the rampant spread of the coronavirus, the family detention centers “are ‘on fire’ and there is no more time for half measures.”

The ruling comes after lawsuits over ICE’s failure to comply with the Flores settlement, which sets a national standard for the treatment of minors in custody. ICE manipulated the terms of the agreement by forcing detained parents to choose between allowing their children to leave detention without them — often, to someone the children have never met — or remaining indefinitely detained together. The only humane and practical alternative is to release families together. ICE, however, has provided no indication that it will follow that path. Instead, ICE is poised to use this court order to yet again tear children away from their parents. We must speak out to demand the release of these children along with their families.

Trump Extends and Expands April’s Immigration Ban

In April, the president signed an executive order with sweeping immigration restrictions, a transparently xenophobic move made possible by the expanded executive authority he has asserted during the pandemic. This month, Trump not only extended those restrictions through the end of the year, he added to them: high-skilled employment visas are now largely frozen along with green cards, a move purportedly intended to safeguard American jobs but one that will likely result in overseas remote work, further depressing tax revenue. Immigrants already in the United States should be unaffected by the order.

Although migration has already slowed drastically during the pandemic, these executive orders amount to a values statement by an administration that prioritizes immigration restrictions over public health, economic recovery, and racial justice. The latest visa restrictions add to at least 48 immigration policy changes the administration has implemented since the onset of the pandemic that continue the systematic gutting of our immigration system. As our colleagues at America’s Voice aptly describe it, they appear to be burning it down on the way out the door.

This Month’s Onslaughts to the Asylum System

In addition to the broader immigration policy changes, the president’s efforts to eviscerate our asylum system persist. The Remain in Mexico policy, coupled with a near total shutdown of asylum processing based on a pretext of public-health concerns, have effectively sealed off the country to asylum seekers arriving on our southern border.

Most recently, on June 26, the Department of Homeland Security released a new asylum regulation that would limit work authorization for asylum seekers (for example, those on visas who arrive by air) while they wait for their applications to be adjudicated.

The rule would increase to a full year the wait time for asylum seekers to apply for work permits, bar asylum seekers who crossed the border without authorization from obtaining work permits, and impose a one-year asylum filing deadline on refugees who hope to qualify for work authorization. These regulations cruelly punish asylum seekers, and discourage future applicants from seeking shelter here. And the administration does so with blatant callousness: In response to a draft of the rule released in November, critics argued that it could force asylum seekers into homelessness. The Department of Homeland Security responded by advising asylum seekers to “become familiar with the homelessness resources provided by the state where they intend to reside.” The rule is set to take effect on August 25.

This announcement follows the administration’s proposed rule that would make it even harder to obtain asylum in the first place. The rule would eliminate multiple grounds of eligibility, allow immigration judges to reject applications without a hearing, and block nearly all asylum seekers who pass through other countries without pursuing asylum in those countries first. Legal challenges are sure to slow the rule’s implementation, but the proposal itself is harrowing.

And, of course, legal challenges by no means guarantee just conclusions. On June 25, the Supreme Court ruled that the habeas corpus rights enshrined in the Constitution do not extend to noncitizens; after migrants’ initial requests for asylum are rejected by immigration officials, they have no right to a court hearing. Justice Sotomayor’s dissent warns of the broader, institutional damage of this ruling: “Today’s decision handcuffs the judiciary’s ability to perform its constitutional duty to safeguard individual liberty, and dismantles a critical component of the separation of powers.”

Appeals Court Enables Massive Expansion of Fast-Tracked Deportations

A federal appeals court recently allowed the Trump Administration to dramatically expand the practice of rapidly deporting certain noncitizens without due process. While the case, Make the Road New York v. Wolf, is still ongoing, the court lifted a preliminary injunction that had been in place since September. Because Congress gave the secretary of Homeland Security “sole and unreviewable discretion” over the expansion of expedited removal, the court found that there was insufficient legal standing to justify the injunction. That discretion, however, is being manifestly abused. Since 2004, expedited deportations have been limited to migrants who are apprehended within 100 miles of a land border or within 14 days of entering the country. This policy would expand those limitations to include undocumented immigrants apprehended anywhere in the country within two years of an unauthorized border crossing.

Plaintiffs in the case have 45 days to challenge the ruling before the policy can be implemented. It would would rob hundreds of thousands of undocumented immigrants, who are deeply entrenched in American communities, of a fair hearing. Instead, deportations could happen in a matter of hours.

COVID-19 Continues To Disproportionately Impact Immigrants

This month, despite our failure to contain the coronavirus, the country is reopening — and caseloads are once again ticking upwards. The demographic data reinforces the divide between those who are able (and willing) to shelter in place, and those who have no choice and must continue to work. This burden falls disproportionately on communities of color and particularly on Black people. Undocumented immigrants, who are likely to be uninsured essential workers, have also been hit particularly hard recently. In the last two weeks, counties with at least a 25% Latinx population have recorded a 32% jump in cases — more than double the increase in all other counties. The immigrant labor that has kept the country afloat has come at a high cost: The Latinx workers who have risked their lives to fuel a bare-bones economy are now most affected by the new surge in cases.

The most recent spike is devastating rural communities that had been largely spared at the onset of the pandemic — now marginalized communities again bear the brunt of it. Of the 25 rural counties with the highest per-capita case rates, 20 have a meatpacking plant or a prison, where the virus first spread like wildfire. Working conditions at meatpacking plants, which disproportionately employ immigrant laborers, allow the virus to spread quickly, and close living conditions of many workers make it impossible not to spread to their families and the broader community. Prisons and immigrant detention centers have been coronavirus hotspots for almost the full duration of the pandemic; over 48,000 inmates and almost 800 immigrant detainees have tested positive. These numbers surely undercount the true number of cases.

It is easy to chalk up 2020’s cataclysmic developments to forces beyond our control. But the reality is that the scope and intensity of the pandemic and the unequal distribution of pain and suffering were both foreseeable and preventable. They are the ineluctable byproduct of a society built on racism, and acquiescent in the perpetuation of social and economic inequities; and of a failing democracy, ill-equipped for structural reform. With our foundational flaws laid bare, and the choices before us clear, Emerson Collective is more motivated than ever to stand with all of you in demanding more.