PROGRESSIVES –
DID DONALD TRUMP SUCCESSFULLY STYMIE PRESIDENT JOSEPH BIDEN ON IMMIGRATION?
COMPILATION AND
COMMENTARY
BY LUCY WARNERMARCH 1, 2021
BY LUCY WARNER
I LOOK AT THE NEWS STORIES FOR INTERESTING OR IMPORTANT CONTENT NEARLY EVERY DAY, BUT SOMETIMES I MISS ONE AS I DID THIS. FORMER PRESIDENT DONALD TRUMP PUT IN A CHANGE TO POLICY WHICH WAS MEANT TO PREVENT OR DELAY THE IMPLEMENTATION OF ICE REFORMS BY THE BIDEN ADMINISTRATION. WHILE STILL CLAIMING THAT THE 2020 PRESIDENTIAL ELECTION IS ILLEGITIMATE, TRUMP INSERTED A UNION AGREEMENT INTO THE WORKS THAT WOULD ALLOW THE ICE UNION TO REFUSE GOOD AND FAIR PROCESSING OF IMMIGRANTS. SEE THE ARTICLES BELOW.
DHS HAS ACTED
DECISIVELY TO PREVENT THIS HANDOVER OF POLICY MAKING DECISIONS OVER TO A
PRO-TRUMP UNION OF ICE WORKERS, THANK GOODNESS. WILL IT STAND? THERE ARE
ALREADY SOME LAWSUITS FROM TRUMP FOLLOWERS.
https://www.cbsnews.com/news/ice-officers-union-agreement-trump-homeland-security/
Homeland
Security officials scrap Trump-era union deal that could have stalled Biden's
immigration policies
BY NICOLE
SGANGA AND CAMILO MONTOYA-GALVEZ
FEBRUARY 16,
2021 / 5:41 PM / CBS NEWS
IMMIGRATION
*Biden admin
scrambles to expand housing for migrant children
*The facts
about how the U.S. processes unaccompanied migrant children
*Biden rescinds
Trump's pandemic-era ban on certain immigrant visas
*Judge
indefinitely blocks 100-day pause on most deportations
The Department
of Homeland Security on Tuesday moved to scrap a contract signed at the tail
end of the Trump administration that could have allowed a union of deportation
officers to stall the implementation of certain immigration policy changes.
The agreement, signed
the day before President Biden's inauguration by Ken Cuccinelli, the
second-in-command at DHS at the time, gave a union representing Immigration and
Customs Enforcement (ICE) deportation officers the ability to
"indefinitely delay" the implementation of agency policies,
according to a whistle-blower complaint filed by the Government
Accountability Project.
The complaint,
filed earlier this month, said the contract would effectively grant AFGE
National ICE Council 118, a 7,500-member organization that twice endorsed
former President Donald Trump, "veto authority" over certain
policy-making at ICE.
"The
agreements grant NIC 118 extraordinary power and benefits — far more than
what DHS agreed upon with its other employee unions which did not endorse
President Trump," the Government Accountability Project said in its
complaint.
A DHS
spokesperson said the Chief Human Capital Officer at DHS notified ICE and
the union in writing that the agreement had been "disapproved."
"As part
of routine process and provided for by statute, the Department conducted a
review of the terms of the agreement and determined that it was not negotiated
in the interest of DHS and has been disapproved because it is not in accordance
with applicable law," the DHS spokesperson told CBS News on Tuesday.
"DHS will
make policy decisions in accordance with the law and based on what's best
for national security, public safety, and border security while upholding our
nation's values," the spokesperson continued.
Under a federal
law, an agency head has 30 days to review and approve or disapprove such an
agreement once it is signed.
The
whistle-blower complaint accused Cuccinelli of "gross mismanagement,
gross waste of government funds and abuse of authority" over the labor
agreement.
"This
abuse of authority is shocking," wrote David Seide, a lawyer
representing the whistle-blower, who is described as a current federal employee
that "possesses information concerning significant acts of misconduct."
"We are
gratified that the head of the agency disapproved before it was too late,"
Seide said when reached for comment on Tuesday.
The Office of
the Special Counsel has opened an investigation into the whistleblower
complaint, sources familiar with the case tell CBS News.
Cuccinelli, an
outspoken defender of Mr. Trump's hardline immigration policies, was tapped to
be the deputy secretary at DHS in late 2019 after leading U.S. Citizenship and
Immigration Services. A federal court and the Government Accountability Office,
Congress' investigative arm, found that he had been unlawfully appointed to
the roles.
"We
resolved many long-lingering issues with the ICE union, and it was done with
strong legal guidance all along the way from the Office of the General
Counsel, so we know it was thoroughly legal," Cuccinelli told CBS News
in response to DHS' decision to scrap the agreement. "If I was not
confident that the contract was both legal and good policy for ICE, I would not
have signed off on it."
Moving forward,
the ICE union could appeal DHS' move to block its agreement with the
Federal Labor Relations Authority, challenging the Biden administration to a
prolonged legal fight.
CBS News
reached out to the ICE union that signed the agreement with the Trump
administration.
First published
on February 16, 2021 / 5:41 PM
© 2021 CBS
Interactive Inc. All Rights Reserved.
Trump Official’s Last-Day Deal With ICE Union Ties Biden’s Hands
A whistle-blower accused Kenneth T. Cuccinelli II of an abuse of power in making sweeping concessions to pro-Trump Immigration and Customs Enforcement agents.
By Zolan Kanno-Youngs and Charlie Savage
Feb. 1, 2021
WASHINGTON — A
whistle-blower complaint filed on Monday said a top Trump homeland security
official sought to constrain the Biden administration’s immigration agenda by
agreeing to hand policy controls to the pro-Trump union representing
Immigration and Customs Enforcement.
The complaint
accuses Kenneth T. Cuccinelli II of “gross mismanagement, gross waste of
government funds and abuse of authority” over the labor agreements he signed
with the immigration agents’ union the day before President Biden’s
inauguration.
Mr. Cuccinelli
— an immigration hard-liner whose legal legitimacy to serve in senior positions
at the Department of Homeland Security was contested — essentially sought to
tie Mr. Biden’s hands, according to the complaint.
“This abuse of
authority is shocking,” wrote David Z. Seide, a lawyer representing the
whistle-blower, whom he described as “a current federal employee who wishes to
remain anonymous” and who “possesses information concerning significant acts of
misconduct” by Mr. Cuccinelli.
LINK -- Read
the documents, The whistle-blower complaint and ICE labor agreements
A senior
homeland security official confirmed that since Mr. Biden’s inauguration,
officials have been meeting to discuss the implications of the ICE labor
agreements. The official spoke on the condition of anonymity to discuss
internal deliberations.
One clause in
the contract requires homeland security leaders to obtain “prior affirmative
consent” in writing from the union on changes to policies and functions
affecting agents. It also appears to allow the ICE union to argue that it can
reject changes such as Mr. Biden’s recent order to focus on violent criminals
and not prioritize other undocumented immigrants.
Under a federal
law, an agency head has 30 days to cancel such an agreement once it is signed,
after which it goes into effect.
The agreements
essentially require the homeland security secretary — currently David Pekoske
in an acting capacity — to notify the union in writing about any elements of
the agreements that he may disapprove. In each case, that element would be sent
back for further negotiations.
But the
agreements signed by Mr. Cuccinelli suggest that the union could appeal any
such rejection to the Federal Labor Relations Authority. And once the
agreements take effect, they purport to “irrevocably” block the government’s
ability to challenge anything about the concessions to the ICE union for the
next eight years.
Mr. Cuccinelli
said in an email that the previous labor agreement with the ICE union had
“languished for many years, through several administrations” and argued that
the new deal he signed was in the best interest of the agency.
“I absolutely
deny any mismanagement, waste of government funds and any misuse of authority,”
Mr. Cuccinelli said. “The agreement is entirely legal and appropriate, or we
wouldn’t have executed it.”
He declined to
respond to a question inquiring how the agreement would affect Mr. Biden’s
directives to ICE.
Chris Crane,
the union president who signed the agreements with Mr. Cuccinelli, did not
respond to a request for comment. The ICE union, which represents
more than 7,500 agents and employees, endorsed Donald J. Trump in the 2016 and
2020 elections.
Mr. Seide, a
senior counsel at the Government Accountability Project, which represents
whistle-blowers, filed the six-page complaint with Congress, the Department of
Homeland Security’s inspector general and the Office of the Special Counsel,
which protects whistle-blowers. He attached copies of three “memorandums of
understanding” signed on Jan. 19 by Mr. Cuccinelli and Mr. Crane.
Among other
things, Mr. Seide’s complaint portrayed the agreements as “effectively giving
the union unprecedented veto authority in many areas,” including enhancing its
power “to slow and impede agency activities by requiring its express written
approval prior to implementing changes in the conditions of employment” for
agents.
One of the
agreements, for example, says: “No modifications whatsoever concerning the
policies, hours, functions, alternate work schedules, resources, tools,
compensation and the like of or afforded employees or contractors shall be implemented
or occur without the prior affirmative consent” in writing by the union.
The complaint
also characterized the agreements as granting “outsize” levels of “official
time” — compensation for time spent on union activities — that vastly exceeded
what other public employee unions received, the complaint said. Mr. Seide
estimated that these concessions by Mr. Cuccinelli would cost taxpayers several
million dollars a year.
The agreements
also require the government to cover union-related travel expenses, granting it
a benefit that Mr. Trump had banned in 2018.
“When the
evidence is collected — the agreements’ last-second timing, their outsized
conveyance of power and benefits, their purported invulnerability and Mr.
Cuccinelli’s extraordinary involvement — it is clear that they are another
example of the prior administration’s effort in its waning hours to cement a
legacy at taxpayer expense,” Mr. Seide wrote in the complaint.
The last-minute
labor deal is one of several ways the departing Trump administration sought to
tie its successors’ hands on policy. On Jan. 8, for example, Mr. Cuccinelli
signed an agreement with the government of Texas that he hoped would block the
Department of Homeland Security from changing deportation policy without giving
the state 180 days’ advance notice.
Citing that
agreement, Attorney General Ken Paxton of Texas, a Republican, said that Mr.
Biden’s 100-day moratorium on most removals of undocumented immigrants was
“illegal.”
Texas filed a
lawsuit, and a Trump-appointed federal judge last week issued a nationwide
restraining order blocking the moratorium. But Mr. Biden’s directive to
immigration agents to prioritize undocumented immigrants who recently crossed
the border or those with a violent criminal history remains in effect.
Notably, the
acting head of ICE at the end of the Trump administration did not sign the new
labor agreement, which came together during a period of bureaucratic turmoil.
One acting director of ICE, Tony Pham, abruptly resigned at the end of
December. He was succeeded by Jonathan Fahey, who abruptly resigned on Jan. 13.
Mr. Fahey was
replaced by Tae D. Johnson, who did not sign the agreement. Instead, on the
signature lines, Mr. Cuccinelli is identified “for the agency” but without a
title. Mr. Cuccinelli said it was appropriate for him to sign as the acting
deputy secretary, and he did so after gathering guidance from the general
counsel.
Before he
resigned, Mr. Fahey had for days pushed back against the efforts to bolster the
ICE union and ultimately refused to sign the agreement, according to the senior
homeland security official familiar with the matter.
The Trump
administration had in various ways tried to give Mr. Cuccinelli a senior
leadership role in the Department of Homeland Security without going through
Senate confirmation, but the legal legitimacy of his appointment to various
positions was a recurring dispute.
In 2019, Mr.
Trump tried to make Mr. Cuccinelli the acting head of the department’s
Citizenship and Immigration Services agency. But in March 2020, a federal judge
ruled that his appointment had been illegal, nullifying policies he had made
because he lacked the legal authority to be in the position. The Trump
administration did not appeal that ruling.
The
administration also tried to make Mr. Cuccinelli the No. 2 at the department,
giving him the title of senior official performing the duties of deputy
secretary. In August, the Government Accountability Office issued an opinion
that this appointment was legally invalid as well, although it is not a court
ruling.
Mr. Cuccinelli
has repeatedly pressured ICE leadership to adopt tougher policies. Soon after
joining Citizenship and Immigration Services, Mr. Cuccinelli pushed the agency
to add new restrictions to the student visa program, which is under ICE’s
authority and not the agency he was supposed to be leading at the time. His
actions angered other department officials and prompted an intervention by
Kevin K. McAleenan, a former acting homeland security secretary.
The complaint
filed on Monday is the second major accusation against Mr. Cuccinelli by a
whistle-blower in recent months. Brian Murphy, the former intelligence chief
for the Homeland Security Department, claimed in September that Mr. Cuccinelli
had ordered him to modify intelligence assessments to make the threat of white
supremacy “appear less severe” and include information on violent “left-wing”
groups. Mr. Cuccinelli denied the accusations.
*Cuccinelli’s Appointment to Immigration Post Is Illegal, Judge Rules, March 1, 2020
*D.H.S. Downplayed Threats From Russia and White Supremacists, Whistle-Blower Says, Sept. 9, 2020
*Ken Cuccinelli Emerges as Public Face, and Irritant, of Homeland Security, Sept. 5, 2019
Zolan
Kanno-Youngs is the homeland security correspondent, based in Washington. He
covers the Department of Homeland Security, immigration, border issues,
transnational crime and the federal government's response to national
emergencies and security threats. @KannoYoungs
A Federal Defender System for Immigrants Is Long Overdue
Posted by Jocelyn Dyer | Feb 26, 2021 | Due Process & the Courts, Immigration Courts, Right to Counsel
A new policy
brief from the Vera Institute of Justice explains why this needs to change now.
An attorney can
make a tremendous difference in someone’s immigration case. And unlike the
criminal justice system, those in the immigration removal process do not have
the right to a public defender. Even children are forced to defend themselves
in immigration court alone.
The challenges
for those in immigration detention are even worse. The majority are cut off
from legal resources and are often unable to communicate with and obtain
evidence from the outside world.
The Numbers on
Legal Representation
Despite the
importance of having legal representation, many immigrants are unable to access
it.
In fiscal year
2019, a staggering 77% of people with completed immigration court cases did not
have lawyers. The need in immigration
detention is particularly high—70% of individuals in detention over the past
five years have not had lawyers.
Vera’s policy
brief calls for a federal defender system that is universal, zealous, and
person-centered. It explains that this service is necessary to address our
immigration system’s racist history and current harms.
Our immigration
system has a long history of excluding immigrants of color, dating back to the
Chinese Exclusion Act in the 19th century. Since then, racism has continued to
permeate all facets of the immigration system.
More recently,
the Trump administration worsened racial inequities through its actions and
policies. This included its Muslim ban, family separation policy, and the
Migrant Protection Protocols—a program that forced asylum seekers to wait in
dangerous conditions in Mexico while their immigration court cases proceeded in
the U.S. A federal defender service for
immigrants is necessary to begin addressing this ugly history.
The harmful
effects of our closely linked criminal and deportation systems can be reduced
by guaranteeing that immigrants have legal representation at every step of the
process.
Jocelyn Dyer
Jocelyn Dyer is
the Senior Managing Attorney for the Immigration Justice Campaign at the
American Immigration Council, where she oversees the training and mentorship
program. Jocelyn helps ensure that all lawyers volunteering with the Campaign
have the training, resources, and mentorship required to succeed in their pro
bono cases. Jocelyn joined the Campaign from Human Rights First, where she
mentored and trained pro bono attorneys representing asylum seekers. Prior to
that, she practiced corporate litigation at private law firms in Boston while
maintaining a robust pro bono practice. Jocelyn graduated from the University
of Pennsylvania Law School cum laude and clerked for the Honorable Judge F.
Dennis Saylor, IV of the U.S. District Court, District of Massachusetts.
Jocelyn earned her B.A. with distinction from Cornell University.
FILED UNDER:
immigration lawyers
NOTHING IN
GOVERNMENT IS A DONE DEAL: SOME LEGAL ISSUES, FEBRUARY 25, 2021
Legal Snags and Possible Increases in Border Arrivals Complicate Biden’s Immigration Agenda
Muzaffar Chishti and Jessica Bolter, Feb. 25, 2021
"Though
eager to move on from the policies of its predecessor, President Joe Biden’s
administration is facing challenges enacting its immigration enforcement
agenda, both in the interior and at the U.S.-Mexico border. Court injunctions,
administrative resistance, and novel bureaucratic hurdles put in place by the
Trump administration shortly before its end, as well as mounting pressures at
the southwest border, have complicated the Biden administration’s efforts to
roll back the Trump legacy. Though Biden’s presidency is still in its infancy
and leaders have yet to be confirmed at some agencies with key roles in the
immigration system, these challenges demonstrate the difficulties of achieving
quick results that some of his supporters had taken for granted.
The Biden team
began with an ambitious plan to soften some elements of the enforcement-first
approach that characterized the Trump administration. In the interior, it
established a 100-day moratorium on most deportations while it worked on a
review of policies for the longer term and issued interim guidelines with
narrowed immigration enforcement priorities. At the border, it has temporarily
kept intact the Trump administration policy that permits expulsions of almost
all border crossers, while also ending the Migrant Protection Protocols (MPP,
also known as the “Remain in Mexico” policy) and working to develop a revised
system to receive and process new asylum seekers.
The
administration has advanced some elements of its agenda, but the challenges of
redirecting the enforcement apparatus, the tangled web of legal agreements
signed by prior Department of Homeland Security (DHS) leadership, and anxieties
about a new large-scale influx of migrants and asylum seekers have posed early challenges.
Narrowing
Interior Enforcement, but Not Without Stumbles
On Inauguration
Day, DHS issued a 100-day freeze on deportations, with narrow exceptions for
noncitizens believed to pose threats to national security as well as those who
entered the United States on or after November 1, 2020, who waived their rights
to remain, or whose removal was required under law. The moratorium was
immediately challenged by the state of Texas and subsequently temporarily
blocked by a federal judge within a week, then indefinitely halted by a
preliminary injunction on February 23. U.S. District Judge Drew Tipton of the
Southern District of Texas found that the pause in deportations likely violated
a statutory requirement that noncitizens with final removal orders be removed
within 90 days, and was likely arbitrary and capricious under the
Administrative Procedures Act because DHS failed to provide a sufficient
explanation for the new policStill, the administration has imposed constraints
on some removals. For example, on February 3 a flight carrying Angolan,
Cameroonian, and Congolese deportees was cancelled at the last minute to allow
those on board to be interviewed as part of an investigation of alleged assault
by Immigration and Customs Enforcement (ICE) agents. Such last-minute holds on
deportations of potential witnesses are not themselves a change; the Trump
administration, for example, pulled several witnesses off a flight in November
2020 during an investigation into alleged sexual assault by an ICE-contracted gynecologist.
But that happened only after lawmakers and the witnesses’ lawyers intervened in
the cases. The February 3 flight suspension, on the other hand, was pursuant to
internal agency instructions and could indicate a high-level agency review.
Enforcement
Guidelines Represent Narrowest Focus in Years
Adjustments to
DHS enforcement priorities are critical in carrying out Biden’s agenda in the
long run. New interim priorities went into effect February 1, were amended and
operationalized with a February 18 memorandum, and will remain in place until
DHS completes a review of its enforcement policies and issues final guidelines
(expected before the end of May). The priorities set out whom U.S. Immigration
and Customs Enforcement (ICE) targets for arrest and detention as well as to
whom it might grant discretionary relief in removal proceedings. ICE’s new
guidelines thus promise that fewer noncitizens will be apprehended and placed
in the removal system, instead of just focusing on removals, as the moratorium
did.
The February 18
interim guidelines, although slightly broader than those that the Biden
administration initially put into effect, represent the narrowest enforcement
priorities that have been implemented in recent years (see Table 1). They
ensure that the overwhelming majority of unauthorized immigrants are not a
priority for arrest and removal, as was the case toward the end of the Obama
administration. The Migration Policy Institute (MPI) has estimated that 87
percent of the unauthorized population was not a target for enforcement under
the 2014 enforcement guidelines, which were later reversed by the Trump
administration. That share remains at least as high under the interim Biden
priorities.
TO READ TABLE, SEE WEBSITE: Table
1. Interior Immigration Enforcement Priorities under Presidents Obama, Trump,
and Biden
Table Sources: Memorandum from Jeh Charles Johnson, Secretary of Homeland Security, to Thomas S. Winkowski, Acting Director, U.S. Immigration and Customs Enforcement (ICE); R. Gil Kerlikowske, Commissioner, U.S. Customs and Border Protection (CBP); Leon Rodriguez, Director, U.S. Citizenship and Immigration Services (USCIS); and Alan D. Bersin, Acting Assistant Secretary for Policy, Policies for the Apprehension, Detention and Removal of Undocumented Immigrants, November 20, 2014, available online; Memorandum from John Kelly, Secretary of Homeland Security, to Kevin McAleenan, Acting Commissioner, CBP; Thomas D. Homan, Acting Director, ICE; Lori Scialabba, Acting Director, USCIS; Joseph B. Maher, Acting General Counsel; Dimple Shah, Acting Assistant Secretary for International Affairs; and Chip Fulghum, Acting Undersecretary for Management, Enforcement of the Immigration Laws to Serve the National Interest, February 20, 2017, available online; and Memorandum from Tae D. Johnson, Acting Director, ICE, to All ICE Employees, Interim Guidance: Civil Immigration Enforcement and Removal Priorities, February 18, 2021 available online.
Yet there are
instances where, despite the new guidelines, enforcement has gone forward
against noncitizens who would appear to be lower priorities. Since Biden took
office, a witness in the case against the alleged perpetrator of the 2019
shooting that killed 23 people at an El Paso Walmart was deported to Mexico,
and a stateless man was deported to Haiti despite the intervention of lawmakers
and advocates. Members of the Congressional Black and Hispanic Caucuses have
called on the Biden administration to rein in deportations of people who may
face dangerous conditions in their countries of origin, including Haiti and
Cameroon, and adhere to the new enforcement priorities. These instances—while
not violations of the February 1 enforcement guidelines in effect at the time,
which allowed agents to use their discretion to conduct enforcement outside the
stated priorities—demonstrate the disconnect between the president’s agenda and
ICE practices, and the difficulty of dramatically and instantaneously
reorienting the culture of an agency that had previously been encouraged to
maximize enforcement at all costs and does not yet have a Biden-appointed
director in place.
Notably, the
updated February 18 guidelines do not allow agents to exercise such broad
discretion, requiring agents to get preapproval from their field office
directors to conduct non-priority enforcement actions. And even with these
highly visible examples of enforcement that may be at odds with the goals of
the Biden administration, preliminary ICE data indicate that in the first two
weeks of February, detention of noncitizens arrested by ICE were occurring at
roughly half the rate as in January. While the new enforcement strategy may not
yet be universally followed, these initial data show they are likely having a
real effect.
Trump
Administration Obstacles to Biden’s Changes
Though the new
enforcement guidelines have escaped legal challenge thus far, the rapid
litigation over the deportation freeze is evidence that many of the Biden
administration’s policy changes will be challenged in court, continuing a trend
of increased and multipronged immigration litigation. This trend started in the
Obama administration, with the number of immigration lawsuits spiking during
Trump’s presidency. The University of Michigan’s Civil Rights Litigation
Clearinghouse catalogued 122 immigration or border-related lawsuits filed
during Obama’s eight years in office, compared to 333 during the four-year
Trump term.
Trump
administration officials seeded their own legal maneuvers to make it more
difficult for the Biden administration to implement its agenda. Two of these actions
were the unprecedented agreements signed by Ken Cuccinelli, who at the time was
the senior official performing the duties of the deputy secretary of Homeland
Security, with at least four states and one local sheriff’s office, and with
the union representing 7,600 ICE employees, the National ICE Council, in the
final two weeks of the Trump presidency.
The agreements
with the states and locality—Arizona, Indiana, Louisiana, Texas, and the
sheriff’s office in Rockingham County, North Carolina—are known as Sanctuary
for Americans First Enactment (SAFE) agreements. Although not all have been
made public, those that have require DHS to notify the states six months in
advance of any policies that would reduce immigration enforcement or relax the
standards for granting relief from deportation, review states’ feedback on the
proposed policy changes, and, if the department chooses not to accept the
response, provide an explanation. The Texas lawsuit challenging the deportation
moratorium argued that DHS had violated this agreement, but the judge declined
to take a position on that question even as he accepted the challenge on other
grounds. On February 2, DHS notified Texas that it would terminate the
agreement immediately, though the text requires 180 days’ notice.
These
agreements effectively give the signatories unprecedented power over
immigration policy, furthering what has been an ongoing partisan divide between
states and the federal government over the issue. This divide has deepened over
the past decade as state attorneys general—both Republicans and Democrats—have
taken a more activist stance in challenging federal immigration policy and
asserting a bigger role in making their own local policies that affect
immigration enforcement.
The agreement
with the ICE union, signed the day before Trump left office, gave the union
broad powers to delay ICE policy changes. DHS disapproved the agreement on
February 16, within its 30-day period for review, thereby preventing it from
being implemented. Had the deal gone into effect, ICE would have had to work
with the union to agree on the terms of any policy changes prior to
implementation. There remains the possibility that the union, which endorsed
Trump’s presidential campaigns, could appeal the rejection of the agreement to
the Federal Labor Relations Authority.
These
agreements may initially impede the Biden administration’s policymaking, but
they are unlikely to survive court challenges. And though the deportation
moratorium—Biden’s most symbolic interior enforcement effort—has been halted in
its tracks, other longer-lasting policies such as the narrower enforcement
guidelines so far have proceeded unchallenged.
Continuity of
Border Enforcement in the Face of Possible Increases in Arrivals
Despite its
hopes for a slower pace of border crossings, the Biden administration is facing
signs that suggest increased arrivals may be forthcoming. In January, there
were 75,000 interceptions of migrants at the southwest border, outpacing every
January since 2006. And the number of migrants traveling as families
apprehended at the U.S.-Mexico border increased 62 percent from December to
January, one of the biggest month-to-month increases since 2014, indicating
that arrivals may be growing rapidly. Though many of these incidents may have
been of the same people trying to cross multiple times—DHS has acknowledged
that 38 percent of those encountered between March 2020 and February 2021 had
tried to enter before in the same year, up from 7 percent in fiscal year
2019—anecdotal reports indicate the number of fresh arrivals is increasing as
well.
The
administration has kept in place the federal Centers for Disease Control and
Prevention (CDC) order issued in March 2020 allowing the United States to expel
almost everyone who crosses the border illegally without giving them the
opportunity to seek asylum or other relief. In addition to continuing
public-health concerns surrounding COVID-19, maintaining the order was meant to
deter a predicted surge of migrants trying to reach the United States after
Biden’s inauguration, on the theory that his administration would relax border
enforcement. Biden himself warned against such a surge, and his spokeswoman
argued that the new administration needed time to put in place a fairer and
more efficient asylum system at the border. “Asylum processes at the border will
not occur immediately; it will take time to implement,” White House Press
Secretary Jen Psaki said in mid-February.
Still, the
administration has made some exceptions under circumstances that remain
unclear. In late January, some migrant families apprehended along certain
border sectors began to be released to U.S. communities rather than expelled to
Mexico under the CDC order. This may be due to at least two factors: increased
space restrictions in U.S. Customs and Border Protection (CBP) holding facilities
due to COVID-19 protocols and Mexican localities’ refusal to accept expelled
families due to a new law prohibiting holding migrant children in detention.
However, the Biden administration has not communicated exactly where and under
what circumstances it is releasing families into U.S. communities, and it is
unclear whether they are part of a pattern or are policy exceptions. The
administration also declared it will not expel unaccompanied children under the
CDC order, in a switch from the Trump era. But it is not moving fast enough for
some: in late February, 61 Democratic House members sent a letter to Homeland
Security Secretary Alejandro Mayorkas urging him to end all expulsions under
the order “as soon as practicable.”
A Slow End to
Remain in Mexico
Unlike its
tinkering around the edges of the CDC order, the administration has begun to
roll back some of the most restrictive policies of the Trump administration. It
started with ending MPP, announcing a process for those enrolled in the program
with open immigration court cases to enter the United States. However, MPP
enrollees allowed back into the United States through this system are not
processed in special courts empaneled to hear their asylum claims, but funneled
into the same immigration court backlogs that have been plaguing the system for
years. Of course, there are arguments for moving swiftly: the population
waiting in Mexico under MPP is one of the most vulnerable and Biden had
promised to end the program as one of his first actions. But the administration
has done so without also creating a dedicated system to process the asylum
cases of recent border crossers. This could incentivize increases in flows.
Finally, Biden
has ended policies that the Trump administration enacted in 2019 and paused
during the pandemic, including the Asylum Cooperation Agreements with El
Salvador, Guatemala, and Honduras, which allowed U.S. asylum seekers arriving
at the border to be sent to seek asylum in those countries, as well as
implementation of two rapid asylum adjudication programs: the Prompt Asylum
Claim Review program and the Humanitarian Asylum Review Process. Both sets of
policies blocked access to U.S. territory and the asylum system. Ending these
programs has no effect in practice while the CDC order remains in place, since
the public-health rule blocks access to the U.S. asylum system more broadly.
But once it is lifted, these policies will not encumber the new
administration’s intended border policies. And while the administration has not
yet begun the process of revoking the regulation making ineligible for asylum
anyone who had traveled through a third country before reaching the U.S.-Mexico
border without seeking and being denied asylum there, a federal judge
preliminarily blocked it on February 16, and the government is likely to choose
not to continue defending it in court.
Once the CDC
order is lifted, none of the Trump policies that explicitly blocked access to
the asylum system for border crossers will remain. Still, the narrower grounds
on which asylum can be granted that were enacted during the Trump
administration will continue to apply in proceedings before immigration courts.
In all, Biden’s
administration has dismantled critical elements of Trump’s strictest policies
on illegal border crossings and is adjusting the implementation of those that
remain. It continues to face the challenge of building an asylum processing
system that provides quick protection to those who qualify and humanely returns
those who do not, without applicants spending years in the immigration court
backlogs.
Such
much-needed reform of the asylum system could be frustrated by large border
arrivals in coming weeks and months, although over the long term the
administration has committed to countering these types of movement with a
greater attention to root causes of migration and a regional migration
management system. And in the interior of the country, the administration is
still struggling to wrap its arms around the enforcement machinery that was
left to run at full steam and without guardrails under Trump, creating a
climate of fear that overshadowed its mixed results because of pushback from
state and local jurisdictions. The Biden administration’s supporters have been
eager to see a sharp reversal of the policies of the Trump era, but the
realities at the border and the impediments to advancing Biden’s enforcement
agenda in the interior suggest the need for a long-term plan.
SOURCES
Aleaziz, Hamed.
2021. The DHS Has Signed Unusual Agreements with States That Could Hamper
Biden’s Future Immigration Policies. BuzzFeed News, January 15, 2021. Available
online.
Borger, Julian.
2021. Exclusive: ICE Cancels Deportation Flight to Africa After Claims of
Brutality. The Guardian, February 4, 2021. Available online.
Carrasquillo,
Adrian. 2021. Black, Hispanic Caucuses Apply Pressure to Biden to Reign in ICE,
Deportations. Newsweek. February 11, 2021. Available online.
Charles,
Jacqueline. 2021. He Wasn’t Born in Haiti. But That Didn’t Stop ICE from
Deporting Him There, Lawyer Says. Miami Herald, February 2, 2021. Available
online.
Flores, Adolfo
and Hamed Aleaziz. 2021. Border Agents in Texas Have Started Releasing Some
Immigrant Families after Mexico Refused to Take Them Back. BuzzFeed News,
February 5, 2021. Available online.
Gamboa, Suzanne
and Associated Press. 2021. ICE Defies Biden, Deports El Paso Massacre Witness,
Hundreds of Others. NBC News, February 2, 2021. Available online.
O’Toole, Molly.
2020. ICE Is Deporting Women at Irwin Amid Criminal Investigation into Georgia
Doctor. Los Angeles Times, November 18, 2020. Available online.
**** ****
**** ****
