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Immigration Policy Update



Frontera Facts Immigration policy updates


In our latest Frontera Facts we take a look at the ongoing immigration challenges at the border.


The current federal policy initiatives explored in greater detail below reflect the most regressive tendencies in national and global migration policy. They contrast sharply with the kinds of best practices incorporated in frameworks such as the final draft of the proposed Global Compact for Safe, Orderly and Regular Migration and the Inter-American Commission on Human Rights’ Human Mobility Standards


1) Family Separation 


The federal government failed to meet the deadline for family reunification of families separated at the border set by U.S District Court judge Sabraw for July 26, 2018.  Scores of separated families have not yet been reunified and, disturbingly, many may never be. The crisis of family separation may evolve into a broader crisis triggered by the administration’s insistence on indefinite family detention in improvised settings on military bases such as Fort Bliss in El Paso, TX and Goodfellow Air Force base in San Angelo, TX.


Two federal court cases in California play a leading role in shaping current issues related to family separation and family detention. These include the Ms. L et. al vs. ICE case brought by the ACLU, and the court-ordered settlement agreement in the Flores case which defines the standards applicable to the detention of migrant youth.


There are a minimum of 410 cases of ongoing family separation involving parents who have already been deported and there are 68 cases of parents who are within the U.S. but have not been located. There are approximately 200 parents who have been either deemed “ineligible” for reunification (allegedly because of criminal records or records of abuse) or who the government claims “waived” their rights to reunification. In both of these kinds of cases the plaintiffs have argued that the government’s actions have been vague, arbitrary, and inconsistent.


As Judge Sabraw (the judge in the Ms. L case) has noted: “(f)or every parent who is not located, there will be a permanently orphaned child. And that is 100 percent the responsibility of the administration.”


This was the first time that Sabraw publicly acknowledged the reality that the government’s family separation policy could result in the permanent separation of a significant number of children from their parents. The ACLU and other advocates are mobilizing meanwhile to locate the parents who have been deported, primarily in Honduras and Guatemala. 


A largely unknown number of families were also separated prior to the full implementation of “Zero Tolerance” in May, especially in the El Paso sector where this policy was first tested, and there are others that have been separated since this policy was ostensibly reversed by President Trump’s Executive Order in late June.


2) Immigration in the Federal Budget and a Potential Government Shutdown


On July 25 the House Appropriations Committee approved $51.4 billion in discretionary funding for DHS,  a 7% increase over last year. This includes: 


  • $5 billion for border security assets and infrastructure, including over 200 miles of new physical barrier construction along the southern border and $126 million for border technology

  • $142 million for new aircraft and sensors to include one new large unmanned aircraft system and three multi-role enforcement aircraft

  • $223 million for new non-intrusive inspection equipment and 140 new CBP canine teams to initiate a five-year strategy towards achieving 100 percent scanning on the southern border

  • 375 new CBP Officers above the number originally requested by the administration


This appropriation also includes $7.4 billion for U.S. Immigration and Customs Enforcement (ICE), $328 million above the FY 2018 enacted level. This includes:


  • $78 million to hire over 400 additional law enforcement officers and support staff

  • $1.9 billion – an increase of $275 million above the requested level – for domestic and international investigations programs, including efforts to combat human trafficking, child exploitation, cybercrime, visa screening and drug smuggling

  • $4.1 billion for detention and removal programs, including 44,000 detention beds, an increase of 3,480 beds over fiscal year 2018


President Trump has threatened a government shutdown in September if Congress doesn’t approve “full funding” for the border wall. 


A new GAO report regarding the costs of the proposed border wall has found that the administration “could potentially waste billions of dollars on a border wall because it failed to fully account for factors like varying terrain and land ownership along the Southwest border.” The GAO report also found that Customs and Border Protection (CBP) “selected locations for barriers without fully assessing where they were needed to prevent illegal border crossings. Without assessing costs, consistent with leading practices for capital decision making, C.B.P. does not have complete information for prioritizing locations to use its resources in the most cost-effective manner”. 

3)  New Border Crossing Data


The CBP’s most recent data regarding apprehensions of border crossers reports that the number of apprehensions is down overall, at the lowest levels since 1971, and down 7% in July 2018 compared to June of the same year, but up compared to July of last year. The largest increases in apprehensions was between July 2017 and July 2018, most of them family units and unaccompanied minors, although there were notable decreases (23%) as to the latter between June and July 2018. Based on a comparison between data for the periods between Sept 2016 to July 2017 and Sept 2017 to July 2018, there was a 29% increase reported for family units and 16% for unaccompanied minors. The new CBP data also indicated that the number of migrant families who presented themselves at U.S. ports of entry border increased slightly from June to July, when 3,027 sought legal entry into the U.S.


The CBP data also indicates that since the beginning of the current fiscal year last October, more than 77,800 immigrants traveling in family units and more than 41,000 unaccompanied immigrant children were apprehended at the border. Overall more than 40,000 families and 7,000 unaccompanied children have sought asylum refuge at the border.

4) Threats to Asylum Rights


The administration seems to be committed to do everything possible to undermine and restrict access to asylum. This includes persistent intermittent reports of turnaways of asylum seekers at ports of entry from San Ysidro and Nogales to El Paso, McAllen, and Brownsville. There are also apparently well founded news reports in Mexico that the U.S. and authorities in Mexico’s outgoing government continue to consider an agreement designating Mexico as a “safe third country”, which would in practice delegate the processing of asylum claims to Mexican authorities and prevent the presentation of such claims in the U.S. This may be discussed at upcoming talks regarding NAFTA and other key bilateral issues between the two countries in Washington August 16 and 17.  Such an agreement would further deepen longstanding trends reflecting the large scale transfer of the burden of immigration enforcement from the U.S. to Mexican authorities, with severe impact on the human rights of migrants in transit on Mexican territory.


New data from the Transactional Records Access Clearinghouse (TRAC) at Syracuse University confirms a sharp drop in credible fear findings in asylum cases from 32.7% approval in June 2017 to only 14.7% in June 2018), which, combined with the effects of the elimination of claims of persecution based on domestic and gang violence, implies a notable overall decrease in the fair consideration of asylum claims. 

5) Limits on access to public services by immigrants with legal status 


The administration is also ramping up its initiatives to penalize immigrants who utilize public services and programs (such as welfare or Obamacare), by denying them access to permanent residency or citizenship, through its proposed approach to “public charges”. If implemented, advocates estimate that this measure might bar as many as 20 million immigrants with legal status from legal permanent residency or citizenship, without any congressional action. 



6) Status of DACA 


Federal trial courts in the 2d, 9th, and DC circuits have ruled that President Trump’s termination of DACA was unlawful, and the California court has gone further and ordered that the program be reinstated. These cases are likely to be upheld eventually on appeal by their respective circuits. More recently a suit instigated by Texas’ Attorney General together with others in states supportive of the administration’s stance regarding the termination of this crucial program benefiting 700,000 migrant youth, is pending, that will eventually be decided upon by the much more conservative Court of Appeals for the 5th circuit. The resulting division between the circuits favorable to DACA on the one hand and those opposed is likely to result in a Supreme Court battle over the program, while the rights and prospects of hundreds of thousands of migrant youth hang in the balance.



7) Rights of Victims of Border Patrol Abuse and Violence


Federal courts are also divided as to whether the fatal victims of Border Patrol violence have the right to seek relief from U.S. courts within the context of trans-border shootings. Recent cases arose out of the abuse of deadly force by Border Patrol agents in Nogales and El Paso/Ciudad Juárez the José Antonio Elena Rodríguez and Sergio Hernández Guereca cases. Diverging decisions both supporting (Nogales case, 9th circuit) and opposing (El Paso/Ciudad Juárez case, 5th circuit) the vindication of victims’ rights in such contexts mean the U.S. Supreme Court may weigh in on the issue during its next term.

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