This month, America ended the reign of terror on immigrants. Despite President Trump’s refusal to formally concede, the results are clear: 2021 will usher in new leadership and, hopefully, a new immigration system. President-elect Biden promises to send an immigration bill to Congress that includes a path to citizenship for undocumented immigrants on day one. He also pledged to implement a 100-day deportation moratorium; rescind the Muslim and African bans and Trump’s pandemic restrictions on legal immigration; raise the annual refugee cap from 15,000 to 125,000; end the diversion of Pentagon funds to the border wall efforts; and withdraw from agreements to send asylum seekers to Central American countries.
The next four years offer hope for rebuilding our decimated immigration system now that the American people have evicted Donald Trump from the White House. This month’s immigration news highlights just a few of the crises a Biden Administration will inherit.
1. 666 migrant children are still separated from their parents — an increase from last month’s report of 545
Last month, news broke that the government still couldn’t locate the parents of 545 children who were separated at the border under an early iteration of Trump’s Zero Tolerance policy. That number has since risen to 666 — and given the administration’s gross negligence in monitoring and tracking these families, it seems likely that the true number is far higher.
The additional 121 children have missing parents for which the government has provided no information that would allow for meaningful searches (the original 545 remain missing despite some information, lawyers attempted contact but were unsuccessful). The majority of these families were separated in 2017 when the policy was still considered a “pilot program” and were therefore technically exempted from a federal judge’s mandate that all families separated under the Zero Tolerance policy be reunified. The total does, however, include some families separated under the formal policy.
129 of these children — nearly 20 percent of the group — were under five years old at the time of separation. Lawyers remain determined to reunify these families and President-elect Biden has committed to creating a government task force that would work to reunite all migrant families separated by the Trump Administration’s policies.
2. A federal judge rules that the Secretary of DHS was unlawfully appointed and therefore could not legally issue the recent DACA memo — but a new hearing on DACA’s legality is scheduled in another court
On November 14, a federal judge ruled that Chad Wolf, the acting secretary of the Department of Homeland Security, was unlawfully serving in his position when he issued a memorandum limiting the DACA program in response to the Supreme Court decision. The judge concluded that Wolf’s appointment violated the agency succession rules: because he was serving in an “acting” rather than official capacity, challengers say that all of his actions in this position are not legal.
The ruling did not invalidate the July memo, which said that DHS would continue to accept renewals but not new applications, but it did order scheduling of the parties to determine next steps in the litigation — and an imminent invalidation appears likely.
But there is a simultaneous legal battle that could invalidate DACA before inauguration. Judge Hanen, a Bush appointee who blocked President Obama’s expansion of the program in 2015, will oversee a hearing on the program’s legality on December 22. If Hanen rules that the program is illegal — a question the Supreme Court did not reach — it could prevent the Biden administration from reinstating, much less expanding, the program.
3. ICE is trying to deport women who came forward about nonconsensual gynecological procedures at a Georgia detention center
In September, a whistleblower reported that immigrant women being held at a Georgia ICE detention center operated by LaSalle Corrections, a private prison company, underwent invasive, unwanted, or medically unnecessary gynecological procedures while detained. The reports quickly multiplied — at least 43 women at Irwin County Detention Center have come forward — and the story gained national attention. ICE, it appears, is feeling the pressure: before a new administration comes in, the agency has attempted to deport as many witnesses as possible.
Of the 43 women who say they underwent unnecessary and/or nonconsensual procedures, 17 remain detained and just one has received a request to be interviewed by federal investigators. At least six women who reported abuse have already been deported; only four of them spoke briefly with the Justice Department. Several attempted deportations have been blocked by legal advocates.
On November 24, the U.S. government agreed to freeze deportations for victims of abuse until after Biden’s inauguration, leaving time for the investigation to continue. Even still, ICE’s attempts to deport witnesses are likely to silence those who remain: fearing retaliation, victims will likely be apprehensive to cooperate with investigators. In truth, these women should not only be shielded from deportation while they cooperate with investigators, but should also be granted eligibility to apply for a U visa, which gives undocumented immigrants who report crimes and work with law enforcement protection and a path to permanent residency. That is not happening.
4. Harris County, Texas approves a $2.5 million taxpayer-funded deportation defense fund for immigrants in deportation proceedings
The Harris County Commissioners Court approved the allocation of $2.5 million taxpayer dollars to provide legal services for undocumented immigrants in the county over the next two years. The money consists of $2,050,000 to cover legal fees for undocumented Harris County residents in deportation proceedings and $500,000 for services to county residents who may be eligible for immigration relief due to their status as a victim of a crime. The county is also creating a position for a new full-time assistant director of immigration, who will help “ensure that the county better serves the needs of our immigrant residents.”
The Commissioners Court vote allows Harris County to apply to join our partners at the the Vera Institute for Justice’s Safety and Fairness for Everyone (SAFE) Network. The SAFE Initiative is a collaboration among governments, immigration legal service providers, and advocates working toward universal representation for indigent immigrants in deportation proceedings. And it is desperately needed — currently, 70 percent of people in detention lack government-funded legal representation, and in the past two decades, only 8 percent of those without a lawyer were spared deportation.
Before 2017, locally funded programs offering representation to those facing deportation existed in just two states. Today, there are nearly 40 jurisdictions — 21 of them are funded in part by the Vera Institute — across 18 states that provide free legal services to undocumented people. Harris County is the most recent addition to this growing movement.
Denver, Colorado is also part of the SAFE network and the city voted to increase funding for its Immigrant Legal Services Fund by $500,000 on November 9.
5. Twin Hurricanes hit Central America
Early this month — while the world was fixated on the U.S. presidential election — Hurricane Eta devastated Central America. Indigenous groups in Honduras, Nicaragua, and Guatemala were among the hardest hit. And just two weeks later, the already flooded region was hit by Hurricane Iota before rescue crews could even reach remote villages devastated by Eta.
The region was already undergoing a five-year drought, which has been pushing residents of agriculturally dependent rural villages out of their homes and ultimately towards the U.S. for years. In cruel irony, the crisis hit the same month that the U.S. formally withdrew from the Paris climate accord, a process Trump began in 2017.
President-elect Biden has promised to rejoin the accord on day one, but the consequences of our negligence on climate change are already here. The rapidly worsening climate crisis in Central America is sure to further strain the U.S. immigration and asylum systems and will be an immediate challenge for the Biden Administration. The Guatemalan president said he would ask the U.S. to grant TPS to Guatemalans after Hurricane Eta killed at least 44 people in the country and damaged more than 20,000 homes. Some 400,000 people in Honduras were also displaced from their homes, but it is unclear whether their president will make the same request.
6. Federal courts block two Trump policies on expelling migrant children without due process and restricting access to asylum for those accused of crimes
On November 18, a federal judge ordered border authorities to stop expelling migrant children apprehended at the border without letting them pursue asylum claims. The judge ordered that unaccompanied minors in federal custody must be placed in shelters and overseen by the government during their immigration hearings; he wrote that rapid expulsions put them at potentially life-threatening risk by returning them to the conditions they are fleeing. The judge’s decision was released minutes before a deportation flight left for Guatemala, carrying 33 unaccompanied children who were deported despite the injunction.
The policy, which was thinly veiled as an effort to contain the spread of COVID-19, has been in place since mid-March, and applied to people of all ages. Agents along the U.S.-Mexico border have already expelled at least 13,000 unaccompanied children in need of protection and approximately 200,000people total. The judge’s order does not prohibit the continued expulsion of adults or families with children.
On November 19, a different federal judge delivered another victory: the Trump Administration’s rule barring individuals convicted of any felony or a host of other crimes from obtaining asylum was blocked nationwide, just one day before it was set to take effect.
7. USCIS announces a new naturalization test sure to unnecessarily delay citizenship
The naturalization civics test taken by U.S. citizen applicants is being updated for the first time since 2008. The oral exam on U.S. history and government is one of the final stages of the naturalization process.
The new test will consist of 128 possible questions instead of the previous 100 and doubles the length of the test from 10 questions to 20. Starting December 1, applicants will be required to answer at least 12 of 20 questions correctly. The increased time could triple the amount each officer spends testing applicants — an unnecessary surge in expenses for an already struggling agency.
There are also some substantive edits to the questions. For example, the answer to the question of who U.S. senators represent was changed from “all people of the state” to “citizens in their state.” This is simply untrue: although senators are only elected by citizens, they represent everyone in their jurisdiction, regardless of immigration status.
USCIS claims the changes are an effort to keep the test “current and relevant,” but it makes an already tedious test (a 2018 survey showed that just 36 percent of citizens born in the U.S. could pass the test) even more complex and ideological. The Biden Administration can and should restore the previous version of the test immediately upon entering office.
This month, like every other over the past four years, brought an onslaught of attacks on immigrants and immigration. But it also brought some hard-won victories, and none more so than the end of President Trump’s term. To the many of you who fought so hard alongside us for this moment, thank you.