Chaos Defines Immigration Law in 2019

The chaos that follows our president through almost every other phase of his political life extends to immigration as well. Other stories understandably get more attention, and there’s almost always so much going on that it’s hard to know what to respond to with genuine concern and what deserves a dismissive “Of course he did.” Immigration lawyers in New Orleans and around the country are left trying to find answers to the same questions that immigrants and news watchers are searching for as well. We have to wonder:

• - What is happening? - The Justice Department announced this week that it plans to begin collecting DNA samples from immigrants crossing the border with the goal of creating a database that authorities can use to fight crime and apprehend those who have been returned to their home countries and re-entered the United States without authorization. It’s an extension of the mindset toward immigrants that candidate Donald Trump exhibited when he announced his run for president—that immigrants are inherently suspicious and dangerous—and it follows a pattern of behavior on the part of the U.S. government designed to make migrants south of the U.S./Mexico border think twice about crossing it. The cruelty and hostility in the measures aren’t byproducts; they’re the point. 
• U.S. Deputy Attorney General Jeffrey A. Rosen rationalized the measure as he and the administration a number of similar measures—saving lives. “The proposed rule change would help to save lives and bring criminals to justice by restoring the authority of the Attorney General to authorize and direct the collection of DNA from non-United States persons detained at the border and the interior by DHS, with the ultimate goal of reducing victimization of innocent citizens,” he said. 

Civil rights attorney Henry Sias doubts that this move will make migrants fleeing dangerous homes think twice if many of the other measures the Trump Administration has tried to implement haven’t. 

"It's hard for me to believe that a woman who is on a journey of 1,000 miles in broken flip-flops with a two-year-old on her hip, doing everything she can and sacrificing everything ... is going to be deterred by DNA collection," he said.

At this point, harvesting DNA sounds outrageous, but it’s also likely to be challenged in court, so it’s hard to know how outraged to get about it now. 

• - Is it still happening? - An executive order that levied punitive fines of up to $500,000 on migrants has been quietly rescinded, or at least unofficially un-enforced. The January 2017 executive order spelled out a plan to collect “all fines and penalties that the Secretary is authorized under the law to assess and collect from aliens unlawfully present in the United States." 

According to NPR’s Franco Ordoñez, some immigrants who were assessed five- and six-figure fines received letters recently saying that they no longer owed the money. “Following consideration of matters you forwarded for ICE review, and in the exercise of the its discretion under applicable regulations, ICE hereby withdraws the Notice of Intention to Fine," wrote Lisa Hoechst, U.S. Immigration and Customs Enforcement officer, in the October 17 letter to one of those who had been fined.

• - Did it ever happen? - The Trump Administration changed its policy for asylum in July 2019 when it ruled that asylum seekers can’t apply in the United States if they passed through a safe country on the way. Since the U.S. considers Mexico a safe country, that should have stopped all asylum seekers from entering the country from Mexico. But earlier this month, NBC News reported that no asylum seekers have been deported yet for violation of this policy. Some are in detention as Immigration and Customs Enforcement (ICE) decides where to deport them too—their country of origin or the safe country where they could have sought asylum. 

"Returns under the IFR policy have not started," said ICE spokeswoman Paige Hughes said this summer. “IFR” is an appropriately Orwellian piece of language—"interim final rule,” and it leaves detainees in limbo, unable to be released but unable to be deported. And considering the fluidity of the situation and the accompanying confusion, there’s no guarantee it will ever be implemented.

• - Can it happen? - The Clinton Administration, not the Trump Administration, came up with a procedure for “expedited removal,” which according to The Washington Post, “provides quick removal of thousands of people who are arrested within 100 miles of the border, less than two weeks after arrival, when U.S. officials do not find they make a credible case that they would be persecuted if returned to their home countries.” The Supreme Court will hear a case challenging expedited removal this term, and if the plaintiff, a Sri Lankan man seeking asylum in the United States, prevails, another tool used to quickly turn back immigrants will be gone.

The offshoot of all of this is confusion, which is problematic at a number of levels. For immigration attorneys, it means they have to check regularly to make sure that the strategies they choose with clients still comport with the conditions they actually face, and for immigrants, it means uncertainty about their future. When they commiserate with others, speculation about what is happening and why it’s happening can easily graduate from guesswork to fact in people’s minds, and that misinformation can easily spread and inadvertently make their efforts to change their status worse instead of better. 

Confusion can also affect the functioning of the courts and agencies themselves. Observers watching hearings for asylum seekers waiting in Mexico report that many court dates have had to be rescheduled because the necessary translators were not available the day of the hearing. (Observers also report that many of the supporting documents that asylum seekers are asked for are to be written in English, and any translation needs to be accompanied by a Certificate of Translation, a document many living in migrant encampments near the border can’t afford.)

Another possible offshoot of the confusion is that the administration’s get tough approach to immigration hasn’t had the deterrence factor that it hoped for. Many factors contribute to this including the likely possibility that the communities that the Trump Administration is trying to deter doesn’t get cable news and doesn’t follow American politics. What people know comes secondhand and is likely filtered by hope, desperation, and disbelief. But the confusion and chaos that manifest in the practice of immigration law enforcement make it easier for people looking to escape the dangerous and hopeless situations they’re in to believe the things they want to believe and try anyway. 

As a result, all of the get tough policies have failed to stem the tide of people seeking to enter the United States across the Mexico border. U.S. Customs and Border Protection reports that this fiscal year (starting last October) it apprehended more than 780,000 people along the southern border. In fiscal 2018—the year that brought us family separation—it apprehended more than 521,000, and 415,000 in fiscal 2017.

In 2014, Kathleen started PB&J—Pro Bono for Juveniles—to help children who had made the kind of journey that Sias described find immigration lawyers in Louisiana, and Catholic Charities, ISLA, and the Pro Bono Project are similarly working to find immigration lawyers for detainees in Louisiana to help them deal with not only the laws on the books but the confusion created by the current administration. 

Those who are concerned need to do the hardest thing to do under this administration: Be patient. Jumping online to worry about every new outrage on social media only adds another layer of confusion. Many of Trump’s executive orders and the Department of Justice’s policy changes have been unconstitutional, or close enough to unconstitutional that they’ll have to journey through the courts for a while before they go into practice. And as always, if some of this confusion might affect you or people you are close to, consult an experienced immigration attorney. Relying on second- or third-hand information only adds to the confusion.