Changes Leave Asylum Seekers Jobless

Originally produced by The American Immigration Council this story is reprinted with its permission

Posted by | Jan 13, 2020  


People who come to the United States in search of protection must be allowed to work during the often-lengthy asylum application process. They need to be able to support themselves and their families.

Yet the Trump administration wants to make it harder for asylum seekers to get a work permit.

The Department of Homeland Security has proposed a new regulation that would add several barriers to receiving employment authorization. If implemented, the regulation would strip asylum seekers of their financial independence. The employers and communities that rely on their contributions would suffer as well.

If finalized, the regulation would make several changes to work authorization, which would apply to both new work permit applications and those applying for a renewal of their permits. These include:

Entering the United States Without Inspection

A person seeking asylum would be denied a work permit if they entered or attempted to enter the United States without inspection at a port of entry. This would apply to any employment authorization application or renewal filed on or after the regulation changes, with limited exceptions.

This is a major departure from past practice.

The 1951 Refugee Convention—a legal document that outlines the rights of asylum seekers and our country’s obligations to protect them—prohibits the United States from penalizing asylum seekers based on how they entered the country.

Under the new regulation, nearly all those who enter without inspection will be deemed ineligible to work. This will prevent many from legally working for years while their cases wind their way through the system.

Failing to File for Asylum by the One-Year Deadline

People who don’t apply for asylum within one year of arriving to the United States will automatically have their work permit application denied.

The government will determine on a case-by-case basis if an asylum seeker qualifies for an exception to the deadline. But individuals will not be eligible to work while the government is reviewing their case for an exception.

This is particularly harmful since there are many reasons why someone might be unable to apply for asylum within a year. An individual may suffer from Post-Traumatic Stress Disorder after fleeing their home or be too preoccupied with surviving in a new country, unable to work. They might not even realize the one-year deadline exists.

Waiting Longer to Work

The regulation would also extend the waiting period to apply for a work permit.

Currently, those with a pending asylum application are eligible for a work permit 180 days after filing the application. The regulation would extend that period to 365 calendar days after filing.

Asylum seekers want to be self-sufficient and move on with their lives in the safety of the United States. We have a collective interest in people across the country being able to financially support themselves and their families. Creating artificial barriers that prevent them from being able to do so benefits no one.

If the administration is trying to delay and deny work authorization to discourage people from applying for asylum, they are misrepresenting the push factors that drive them from their homes in the first place.

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Immigration Detention in the United States by Agency

FACT SHEET AMERICAN IMMIGRATION COUNCIL

 

Noncitizens apprehended at the border or in the interior of the United States can be detained by one or more government agencies before or during their immigration proceedings. Certain aspects of detention can vary greatly depending on the agency with custody of the noncitizen.

This fact sheet describes the populations, duration, and conditions for noncitizens detained in the United States by the following departments: Department of Homeland Security (DHS), Department of Health and Human Services (HHS), and Department of Justice (DOJ). Each of these departments govern agencies that detain noncitizens. U.S. Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) are within DHS, Office of Refugee Resettlement (ORR) is within HHS, and U.S. Marshals Service (USMS) is within DOJ.

 

Detention by U.S. Customs and Border Protection

Who Runs CBP Facilities?

Within CBP, the Border Patrol detains noncitizens who entered without inspection by an immigration officer and transfers them to stations and processing centers. The Office of Field Operations (OFO) determines whether noncitizens encountered at ports of entry have proper immigration status to enter the United States. If not, officers can deem such noncitizens inadmissible. Those deemed inadmissible are either detained or permitted to withdraw their application for admission and leave the country. CBP runs all the facilities, although contractors may provide food or other services.

Who Does CBP Detain?

CBP detains all individuals (adults and children) apprehended between ports of entry or deemed inadmissible at a port of entry. Most of the people detained by Border Patrol or OFO are at or near the border, but a smaller number of people who enter the United States through an airport may be detained there as well.

In the first 11 months of fiscal year (FY) 2019, Border Patrol apprehended 859,501 people after entering between ports of entry, of which 851,508 entered at the U.S.-Mexico border. During the same period, OFO deemed inadmissible an additional 288,523 people who presented at official entry points. Of these, 126,001 had presented on the U.S.-Mexico border while the remainder presented at the U.S.-Canada border, airports, or seaport.

How Long Are People Held by CBP?

By law, CBP must transfer unaccompanied children to the custody of the ORR within 72 hours “except in the case of exceptional circumstances.” Additionally, the National Standards on Transport, Escort, Detention, and Search (TEDS) , which govern CBP detention, require that “[e]very effort must be made to hold detainees for the least amount of time required for their processing, transfer, release, or repatriation as appropriate and as operationally feasible,” and that people “should generally not be held for longer than 72 hours.”
However, a survey of 200 families held in CBP detention between May and July 2019 found that 48 percent were detained for greater periods of time. Similarly, the Department of Homeland Security Office of Inspector General (OIG) reported that during a June 2019 inspection of five CBP facilities in the Rio Grande Valley, 31 percent of minors had been held longer than 72 hours. The OIG also reported that single adults encountered during the same inspection had been held for over a month in overcrowded cells.

What Are the Conditions Inside CBP Facilities?

CBP detains adults and children in two types of holding areas. The first type are cement cells commonly described as “iceboxes” by those detained there because of their frigid temperatures. The second type are commonly called the “dog pound” because of their chain-link fencing. Over the course of 2019, reports emerged of CBP detaining some families and children outside for weeks at a time, including under bridges and in makeshift open-air tents.

Noncitizens held in CBP facilities often report experiencing frigid temperatures; unsanitary conditions; a lack of bedding; and inadequate food, water, medical care, and hygiene items. The OIG reported multiple violations of the TEDS requirements for showers, religious dietary accommodations, and hot meals for children. Noncitizens reported quarantines, denial of treatment for serious medical conditions, and inadequate access to doctors and medication. A number of children and adults died in CBP custody in FY 2019.

The Flores Settlement Agreement of 1997 aims to address these conditions. The agreement is the result of Flores v. Reno, a class action lawsuit challenging the government’s treatment of children in federal immigration custody. The settlement requires that facilities detaining children must be “safe and sanitary.” Flores also details minimum standards for food, water, bedding, temperature, and hygiene. However, a federal district court overseeing the implementation of the agreement has repeatedly determined that CBP does not meet these standards.

What Access to Legal Services Is Available Inside CBP Facilities?

Individuals held in CBP custody have limited access to legal counsel. The TEDS standards leave the right to a phone call to the discretion of local CBP offices. As a result, many noncitizens in custody have no way to contact family or lawyers. The government does not provide a way for people to find out where a loved one is being held. This leads some individuals to effectively disappear inside CBP custody for days or weeks.

Attorneys are not allowed access to CBP facilities even though proceedings in CBP custody can have a profound impact on a person’s immigration case. While in CBP custody, noncitizens must make statements with legal implications and many noncitizens report feeling pressured to sign legal documents in English that they do not understand. In 2018, some parents who were separated from their children reported that CBP agents told them they would never see their children again if they did not sign papers. The papers turned out to be documents renouncing the parents’ right to reunify with their child prior to deportation.

Detention by Immigration and Customs Enforcement: Adults and Families

Who Runs ICE Facilities? 

ICE uses a variety of facilities to detain noncitizens. These include state and federal prisons, private detention centers, hotels, and even hospitals. ICE can sometimes avoid federal procurement rules by contracting with state or local governments who then contract with private companies to operate their facilities. The majority of noncitizens in ICE custody are held in the following facilities: 

  • Service Processing Centers (SPCs): ICE owns these facilities but generally contract staff operate them. SPCs held 9 percent of the ICE population at the end of 2017. 
  • Contract Detention Facilities (CDFs): Private prison companies own and operate these facilities. CDFs held 19 percent of the ICE population at the end of 2017. 
  • Non-Dedicated Intergovernmental Service Agreements (IGSAs): City or county jails with some bed space reserved for individuals in ICE custody. IGSAs held 25 percent of the ICE population at the end of 2017. 
  • Dedicated IGSAs (DIGSAs): Local governments own these facilities which only house individuals in ICE custody. DIGSAs held 28 percent of the ICE population at the end of 2017. 
  • U.S. Marshals Service Intergovernmental Agreement (IGAs): Local governments own these facilities which house some individuals who are in ICE and other who are in USMS custody. IGAs held 19 percent of the ICE population at the end of 2017. 

Who Does ICE Detain?

After a noncitizen is processed by CBP at or near the border, the government can transfer the individual to ICE custody. Other noncitizens are detained in the interior by ICE directly.
Unlike the other agencies, ICE maintains an online detainee locator system that family, friends, and attorneys can use to find someone in its custody. As of December 9, 2019, 43,826 noncitizens were detained in over 100 facilities. ICE detains adults and families.

Detention by Immigration and Customs Enforcement: Adults

How Long Are Adults Held by ICE?

As of December 9, 2019, individuals were held in ICE custody for an average of 55 days. Time spent in detention is longer for those held for the duration of their immigration court proceedings. In FY 2019, the average detained immigration case took 46 days. This does not count the period that a person was in ICE detention prior to the start of the case. However, noncitizens who are deported within a short time frame skew this data. 

Across the country, noncitizens who are detained while defending themselves against deportation in immigration court are routinely held for longer than six months. For example, data produced as a result of a 2013 class action lawsuit on behalf of noncitizens detained in California found that noncitizens who applied for relief from removal were held in California ICE detention centers for an average of 421 days.

What Are the Conditions Inside ICE Facilities for Adults?

The National Detention Standards (NDS) or the 2008 or 2011 version of the Performance-Based National Detention Standards (PBNDS) govern the standards for ICE detention, depending on the facility. These standards are non-binding as they are not law. Advocates frequently report egregious violations of these standards, and DHS frequently cites cost as their reason for non-compliance.

There are numerous examples of poor conditions in ICE detention. An administrative complaint filed by the American Immigration Council in 2018 regarding conditions within ICE’s Denver Contract Detention Facility details delays in calling 911, denial of treatment for serious medical conditions, and inadequate mental health care. The OIG has released multiple reports confirming deficient conditions in ICE detention centers. A nationwide class action lawsuit challenged DHS’ use of segregation as punishment and its failure to ensure noncitizens in ICE custody receive disability accommodations, medical care, and mental health care. Congress has debated various bills intended to address conditions for noncitizens held in immigration detention.

What Access to Legal Counsel Is Available Inside ICE Facilities?

Facilities are often located in very remote locations throughout the U.S. where access to an attorney is near impossible. Of noncitizens held in ICE custody in FY 2015, 48 percent were detained in at least one facility that was at least 60 miles from the nearest nonprofit immigration attorney who practiced removal defense. Noncitizens in detention also struggle to access documents and witnesses and are less likely to win their case than those who are not detained.

Detention by Immigration and Customs Enforcement: Families

Who Runs Family Detention Facilities?

The Artesia Family Residential Center opened in June 2014 in Artesia, New Mexico and closed in December of the same year. The government transferred many of the detained families to two detention centers it opened in Texas: the South Texas Family Residential Center in Dilley Texas (“STFRC,” capacity 2400) and the Karnes County Residential Center in Karnes City, Texas ("Karnes,” capacity 830). As of December 2019, both are still in operation, along with Berks County Residential Facility ("Berks," capacity 96), in Berks County, Pennsylvania. The STFRC and Karnes are run by the private prison corporations CoreCivic (CCA) and the GEO Group respectively. Berks is run by the local county government.

Who Is Detained?

The STFRC accepts only mothers with children. At different times, Karnes held mothers with children and fathers with sons. At any given time, Berks may hold male-headed families, female-headed families, or both. Families arriving to the United States together are often separated—fathers and children over 18 are sent to adult detention and mothers and minor children are sent to the STFRC.

How Long Are Families Detained?

The Flores Settlement Agreement prevents the government from detaining children in unlicensed facilities for more than 20 days. Nevertheless, none of the three detention facilities that are currently used to detain families are licensed. Most families are sent to these family detention centers to undergo credible or reasonable fear interviews, the screening interviews that asylum seekers are often required to pass in order to proceed with their case in immigration court. In recent years and due to Flores, families that received positive results from their interviews were released after two or three weeks to wait for their court hearing. However, detention lasted months for certain families, including at least 37 families detained in 2018 after being separated and then reunified. The Trump administration has repeatedly attempted to eliminate the Flores Settlement’s limitations on detaining children.

What Are the Conditions Inside Family Detention Facilities?

Family detention centers are required to follow the Family Residential Standards (FRS) published by ICE. These standards provide guidance for safety, security, order, care, activities, justice, administration, and management. Advocates regularly report violations of the FRS. Medical care wait times are often prohibitive, and families seeking appointments are turned away. No medical specialists are available on-site, and children and mothers—including pregnant women—have been denied access to necessary cardiologist, oncological, and gynecological appointments. Many children show signs of depression, including despondency and refusal to eat. Children also display behavioral regression, or returning to behaviors they had previously outgrown such as biting, separation anxiety, wetting the bed, and a need to be carried.

What Access to Legal Counsel Is Available Inside Family Detention Facilities?

There is a separate pro bono legal project in each of the three facilities used to detain families that attempt to provide free representation to people that need it. However, all three projects report barriers to their clients accessing their legal rights while in detention. Families with strong claims to asylum can fail interviews due to PTSD, illness, distraction while caring for a child, inability to contact family members for evidence, or fear of disclosing details. These families then face deportation without a full court hearing.

There is an option for a limited review of the negative decision, but they may be conducted by video teleconference and immigration judges often deny attorneys and noncitizens the opportunity to speak. Technical problems with video and sound create due process concerns for detained families who cannot always hear the judges, cannot communicate in private with their attorneys during hearings, and at times must wait for hearings to be rescheduled due to technical difficulties.

Advocates repeatedly call for the release of families to ensure their fair day in court outside detention. Government data indicates that noncitizens and families generally appear in court for their scheduled hearings after release.

Alternatives to ICE Detention

ICE has the discretion to release noncitizens on bond, parole, or their own recognizance at no cost to the government. Many noncitizens who are released are subject to the conditions of an alternative to detention (“ATD”) program. These programs have a low average cost of $4.33 per day compared to $139.07 for adult detention and $319.37 for family detention. As of December 9, 2019, ICE reported a total of 93,094 people enrolled in some alternative to detention program.

Who Runs These Programs?

A variety of options are available for ICE to release someone instead of detaining them. These options include parole, bond, release on recognizance, and order of supervision. Sometimes, release comes under certain monitoring requirements.

ICE contracts with Behavioral Interventions Incorporated (BI)—a subsidiary of the GEO Care division of the GEO Group prison corporation—to run its Intensive Supervision Appearance Program (ISAP III). BI uses electronic ankle monitors, voice recognition software, unannounced home visits, employer verification, and in-person reporting to monitor participants. Advocates argue that the government should contract with nonprofit organizations instead of private corporations to run alternatives to detention programs.

How Long Do People Have to Fulfill Program Requirements?

Noncitizens are subject to conditions of release until their immigration court proceedings are over or ICE chooses to release them from the ATD program. As of November 2, 2019, the average time that an individual had been successfully enrolled in an ATD program was 582.3 days. Requirements may be loosened according to ICE discretion as noncitizens demonstrate they are compliant and not a flight risk.

What Is it Like to Live with These Requirements?

While these alternative programs may seem better than detention, there are many concerns with how ATD programs function. Participants can live with family members, be active in their community, and work if they have the legal authorization to do so. However, travel to the nearest ICE field office can be challenging and expensive. Frequent appointments combined with the stigma of ankle monitors can make day-to-day tasks more difficult. Furthermore, current programs prioritize enforcement instead of educating noncitizens on community resources and their legal responsibilities.

What Access to Legal Counsel Is Available Through These Programs?

Noncitizens are likely to have better access to attorneys, documents, and witnesses to work on their legal cases outside detention. However, advocates argue that current alternatives to detention focus too much on surveillance and not on providing individualized services to help noncitizens understand their legal process. Attorney referrals and legal orientation are not provided by the programs.

Many propose a return to the Family Case Management Program, which ran from January 2017 to June 2018. The program achieved a 99 percent attendance rate at court hearings and ICE check-ins at a cost of $38 per family per day. The program did not require ankle monitors and provided connections to low-cost attorneys and community resources.

Detention by Office of Refugee Resettlement: Permanent Shelters

Who Runs ORR Permanent Shelters?

ORR contracts with non-profit organizations and for-profit companies to provide care for noncitizen children. There are approximately 170 such programs around the country. These organizations place children in shelters, group homes, foster care, or other secure or therapeutic facilities.

Who Does ORR Detain in Permanent Shelters?

Children under 18 years old who arrive alone or are separated by CBP from the adult with whom they were traveling are referred to by the government as “unaccompanied alien children” or “UACs” and are held in ORR custody. Separations can occur if the child is traveling with a non-parent family member or family friend, or if the government suspects that the parent has any criminal history—even a history of minor, non-violent offenses.

Minors who turn 18 while in ORR custody are transferred to DHS, which is required by law to “consider placement in the least restrictive setting available.” However, DHS transferred to ICE custody two-thirds of the 1,531 children who aged out of ORR custody between April 2016 and February 2018.

In FY 2019, the number of children in ORR custody rose above 14,000 for the first time in the agency’s history. As of September 2019, approximately 5,000 unaccompanied minors were in ORR custody.

How Long Are Minors Held in ORR Permanent Shelters?

The Flores Settlement requires ORR to release unaccompanied minors to a sponsor without unnecessary delay. Detention is only required when needed to ensure appearance in court or to protect the minor or others’ safety. ORR policy is to release minors in a “safe, efficient, and timely manner.” While the minor is in custody, the government completes a list of steps that include sponsor interviews, verification of identity, background checks, and—in some cases—home studies.

In May 2018, CBP, ICE, and ORR entered into an agreement mandating continuous information sharing on unaccompanied minors. The memorandum also added a requirement that all adult members of a sponsor’s household be fingerprinted. ICE later admitted that at least 330 sponsors, potential sponsors, or members of their household had been detained based on the information sharing. These changes created a chilling effect for potential sponsors. This led to an increase in time unaccompanied minors spent in custody.

In November 2018, the average length of stay reached a high of 93 days. In December 2018, ORR announced limitations on the information-sharing policy. By August 2019, the average length of stay had decreased to 50 days.

What Are the Conditions Inside ORR Permanent Shelters?

The Trafficking Victims Protection Reauthorization Act (TVPRA) requires that ORR place minors in “the least restrictive setting” possible. Additionally, the Flores Settlement requires that permanent facilities meet strict licensing requirements.

Standards set by the Flores Settlement require licensed facilities to provide medical and dental care, food, clothing, and personal grooming items. Facilities must also provide educational services, recreation and leisure time, counseling, acculturation and adaptation services, religious services, family visitation, privacy, and legal services to unaccompanied minors. Many ORR shelters follow these standards and provide a high level of care to the children under their custody. Despite these standards, HHS indicated in May 2019 its intent to limit services “that are not directly necessary for the protection of life and safety” by cutting educational services, legal services, and recreational equipment.

Some facilities also reportedly fail to provide adequate medical services. A September 2019 OIG report found significant challenges to providing mental health services in ORR facilities. Facilities had difficulty hiring and retaining qualified mental health clinicians. This resulted in high caseloads, difficulty accessing external specialists, and difficulty transferring children who needed higher levels of care to residential treatment facilities. The OIG also reported the administration of prescription psychotropic drugs without parental permission. Additionally, children and staff reported at least 1,000 incidents of sexual abuse per year in ORR facilities during FYs 2015-2018.

What Access to Legal Counsel Is Available Inside ORR Permanent Shelters?

Most unaccompanied minors receive Know Your Rights presentations while in custody. Many sponsors receive a similar presentation upon reunification with the child. While these presentations include information on securing legal services, limited funding means they do not guarantee representation.

Congress has directed HHS to ensure access to legal services “to the greatest extent practicable.” Many unaccompanied minors still go through part or the entirety of their immigration proceedings without an attorney. ORR provides grants through the Unaccompanied Children Program to a network of legal service providers.

Detention by Office of Refugee Resettlement: Temporary Influx Shelters

Who Runs ORR Temporary Influx Shelters?

In 2014, the United States started receiving unprecedented numbers of unaccompanied minors at the southern border. ORR responded by opening temporary influx shelters. ORR policy states that it may “open an influx care facility when ORR’s operational capacity is at or exceeds 85 percent for a period of three days.” These shelters are not licensed, and are intended to hold large numbers of unaccompanied minors for short periods of time during an influx of arrivals. As of November 2019, there were no children detained in influx shelters. Yet the option remains available to the government.

The first ORR temporary influx shelter opened in April 2016. The Homestead Temporary Shelter for Unaccompanied Children in Florida held 3,200 minors at its peak. Comprehensive Health Services Inc., a private subsidiary of Caliburn International, operated the Homestead shelter. Homestead was vacated in August 2019 and closed in November 2019.

In June 2018, ORR opened the Tornillo Influx Facility in Texas. The facility held 2,800 unaccompanied minors by December. The non-profit BCFS Health and Human Services operated Tornillo until the facility closed in January 2019.

In the summer of 2019, another influx shelter operated briefly in Carrizo Springs, Texas. BCFS Health and Human Services also operates Carrizo Springs. The facility remains ready to receive minors if the government chooses to use it again.

Who Does ORR Detain in Temporary Influx Shelters?

ORR placement criteria require children held in influx shelters to be 13 or older, speak English or Spanish, not have special needs, and not be pregnant or parenting. However, children with a different first language who speak Spanish as a second language—including those with very limited Spanish—were held in these facilities.

How Long Are Minors Held in ORR Temporary Influx Shelters?

The Flores Settlement requires children to be placed in a state-licensed facility within 5 days, except “in the event of an emergency or influx of minors into the United States,” in which case they must be placed “as expeditiously as possible”. ORR has stated that only minors who are expected to be released to a sponsor within 30 days will be placed in an influx shelter.
In March 2019, the average length of stay at Homestead for minors who had already been released was 52 days, with some children detained for as long as 200 days.

What Are the Conditions Inside ORR Temporary Influx Shelters?

ORR policy states that temporary influx shelters “may not be licensed or may be exempted from licensing requirements.” Advocates and child welfare experts have denounced these facilities’ large, institutional environment. The shelters have strict rules and schedules, limited personal relationships between children and staff, and suffer from overcrowding. As many as 144 children stay in one dorm room. Influx shelters do not have the same educational requirements as permanent facilities. Reports detail large class sizes, uncertified teachers and curriculum, and noisy open-air classrooms.

What Access to Legal Counsel Is Available Inside ORR Temporary Influx Shelters?

ORR’s published policies state that unaccompanied minors in temporary influx shelters will be provided with “legal services information, including the availability of free legal assistance, [and] the right to be represented by counsel at no expense to the government.” However, attorneys report that requests for access to the Carrizo Springs facility were significantly delayed. Although the Flores Settlement requires facilities to provide access to private phone calls, phones are often located in public areas within these facilities.

ORR handled case management for some children remotely instead of in-person at Homestead and Carrizo Springs. Some children reported that their case managers rarely meet with them and delay the reunification process with their sponsor.

Detention by U.S. Marshals Service

USMS maintains custody of individuals charged with federal crimes. While most immigration law violations are civil in nature, a small number can result in criminal charges. The most common immigration-related prosecutions are for illegal entry or illegal reentry under 8 U.S.C. § 1325 and 1326, respectively. Immigration enforcement accounted for nearly 77 percent of USMS’s requested budget increase for program changes in FY 2018.

Who Runs USMS Facilities?

Instead of having its own detention facilities, USMS contracts with third parties to house people in its custody. Of those in USMS custody in FY 2018, 65 percent were detained in state or local facilities, 18 percent were in private facilities, and 17 percent were in the Bureau of Prisons (BOP) system. The Obama administration directed the Bureau of Prisons to decline to renew or decrease the scope of contracts with private prisons, but the Trump administration rescinded this order in 2017. In FY 2018, it cost an average of $90 per day to hold each individual in USMS custody.

Who Does USMS Detain?

If a noncitizen enters the United States without inspection or is deemed to have engaged in any other violation of U.S. federal law, CBP or ICE can choose to refer the individual to a U.S. attorney’s office for prosecution for the federal offense. If noncitizens are referred for federal prosecution in this manner, they are separated from any children they were traveling with and transferred from CBP custody to USMS custody pending trial.

The United States’ obligations as a party to the 1967 Protocol Relating to the Status of Refugees prohibit it from imposing penalties on refugees for having entered the country illegally. However, in 2015, the OIG found that the Border Patrol did not have guidance on whether to refer for prosecution noncitizens who had expressed fear.

How Long Are People Held by USMS?

Most noncitizens prosecuted after being apprehended at the border are convicted of minor offenses and are given short sentences, often the time they had already spent in USMS custody. The government should directly transfer those with short sentences to ICE custody as soon as their sentences are complete. However, noncitizens have been held in USMS custody up to six weeks past their release dates.

What Are the Conditions Inside USMS Facilities?

The USMS has specific detention standards governing the administration, health care, security, food, safety, sanitation, services, and programs within detention facilities holding people in its custody. However, conditions and standards vary widely depending on the type of facility USMS has contracted.

BOP facilities must adhere to additional federal policies. In contrast, USMS has often exercised minimal oversight for contracts with private facilities, some of which have long records of egregious conditions. For example, a government audit concluded that the USMS official responsible for monitoring the Leavenworth Detention Center was spending very little time at the detention center. The official was also unaware that the facility was adding a third bed in cells meant for two people. Other reports indicate that women in USMS custody were shackled to the bed during or immediately after childbirth. This practice increases the risk of blood clotting, falls, and delays in transfer to the emergency room.

What Access to Legal Counsel Is Available Inside USMS Facilities?

Unlike in civil proceedings, all citizens and noncitizens in criminal proceedings have a right to a court-appointed attorney. This representation is limited to the criminal aspects of a case, however, and does not extend to immigration defense. Additionally, in many locations along the border, noncitizens meet only briefly with a court-appointed attorney before being sentenced for immigration-related crimes in mass hearings. Nearly 90 percent of people pled guilty in these mass proceedings. This can result in the loss of a fair opportunity to present a defense.

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What We Know About USCIS’ New H-1B Cap Registration System

Originally produced by American Immigration Council on 1/16/20 this story is posted with permission

them to where they are.

Learn More

Posted by | Jan 16, 2020  


 

The new process for petitioning for highly educated H-1B workers will officially begin on March 1, 2020. For the first time, a U.S. employer who wants to file a petition that is subject to the annual limits must first register with U.S. Citizenship and Immigration Services (USCIS). The agency then must select the registration before the employer can file a petition.

This is true for H-1B visa numbers subject to the statutory “cap” of 65,000 workers per fiscal year (FY). The same applies to the 20,000 additional “master’s exemption” visa numbers for foreign workers with a master’s or higher degree from a qualified U.S. college or university.

USCIS’ recent notice is the latest step in achieving a dramatic change announced last year.

The agency amended its regulations in 2019 to allow for registration but suspended the plan because no system was in place. In November, it announced a $10 registration fee. In December, USCIS said it had completed testing and an initial registration period would run from March 1-20, 2020.

Now, it’s official. USCIS has given formal notice to the public that registration will begin March 1.

A U.S. employer must receive an electronic notice from USCIS by March 31 saying that its registration was selected. The employer needs to receive this notice before it can file an H-1B petition for the worker it registered.

The notice will specify the time period in which the employer must file the H-1B petition. Per the registration regulations, USCIS must give the employer at least 90 days in which to file its petition.  While a U.S. employer may submit multiple registrations, it is limited to one registration per noncitizen in a FY.

USCIS will announce a start date, prior to March 1, when employers and their representatives can set up online registration accounts. It appears that USCIS will be using its online account system myUSCIS for registration. myUSCIS’ forms page already includes a selection for H-1B registration, although the registration function is not available yet.

While USCIS “intends” to close registration on March 20, the agency also said it will “announce the actual end date” on its website. Under the new process, USCIS may “re-open” the registration period if it does not receive enough registrations.

But given that demand has exceeded supply over the past several years, it is more likely that USCIS will receive more registrations than available visa numbers. In that scenario, USCIS will make a random selection of registrations properly filed during the initial registration period. The agency will select the regular “cap” registrants before those for the “master’s exemption.”

The latest notice is light on details. USCIS said it will post step-by-step registration instructions on its website. Questions and concerns linger.

Should companies and their representatives be signing up now for myUSCIS because it is a likely registration portal? Will a USCIS online registration system be able to handle so many users trying to access it simultaneously? What technical assistance will be available if users encounter registration-specific problems? As of now, these questions remain unanswered.

There is also a question of equity among companies. Since the registration fee is only $10, some worry that larger companies will file so many registrations that they will shut out smaller ones. Employers filing a single registration for one worker may have even less chance of being selected than in the former H-1B petition “lottery” system.

Will a registration be considered for the “master’s exemption” if the foreign national does not meet the degree requirements in March (during the registration period) but would by the time the H-1B petition is filed? Will USCIS promptly post and publicize the registration “end date” and any registration “re-opening?”

Unfortunately, the answers to many of these questions may come too late for some employers and the foreign workers they hope to employ.

Photo by NESA by Makers

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Policies Affecting Asylum Seekers at the Border

The Migrant Protection Protocols, the Asylum Transit Ban, and Metering

 Originally produced by the American Immigration Council on  November 19, 2019 , this story is reprinted with their permission.  

 

 

 

For decades, adults, families, and unaccompanied children have been arriving at the U.S.-Mexico border to seek protection from harm in their home countries. U.S. law allows any noncitizen who is in the United States, or at the border, to apply for protection. However, the Trump administration has instituted a number of new policies, many being challenged in court, designed to deter families from seeking asylum at the U.S. southern border. Policies like the Migrant Protection Protocols (also known as “Remain in Mexico”), metering, and a ban on asylum for individuals who transited through Mexico before arriving at the U.S.-Mexico border have reshaped the state of asylum at the border in 2019. This fact sheet explains the complicated interplay and application of protection and border processing policies.


 How has the process for seeking asylum at the border changed? As of November 2019, three significant new Trump administration policies affecting asylum seekers are in effect at the southern border, all of which have a significant impact in shaping the current state of the border. These policies do not apply to asylum applicants at the U.S. northern border with Canada. Metering and asylum turnbacks Throughout 2018, as asylum-seeking families began arriving at the border in large numbers, immigration officials told asylum seekers they should go to ports of entry and request asylum, rather than crossing the border between the ports of entry to ask for asylum.3 But at the same time, the administration effectively closed off the ports of entry to asylum seekers. Due to a practice known as “metering” (or “queue management”), asylum seekers at ports of entry are often turned back and required to wait for months in Mexico just for the opportunity to start the asylum process. Under “metering,” U.S. Customs and Border Protection (CBP) limits the number of individuals who are permitted to access the asylum process each day at ports of entry across the border. Metering was used as early as February 2016, primarily at the San Ysidro port of entry. 4 Metering is one of many tactics used by CBP officers to turn away asylum seekers at the U.S.-Mexico border, in a general practice of “asylum turnbacks.”5 In late April 2018, the administration ordered ports of entry across the U.S.-Mexico border to meter asylum seekers.6 The effect of metering has been significant. In November 2019, the Strauss Center estimated that more than 21,000 individuals were waiting in border cities across Mexico just for the opportunity to start the asylum process.7 Wait times varied from a low of one to three days at the ports of entry between Reynosa, Tamaulipas and McAllen, Texas, to a high of six months at the ports of entry between Ciudad Juárez, Chihuahua and El Paso, Texas.8   Policies Affecting Asylum Seekers at the Border | American Immigration Council | January 2020 Page 2 of 12 In most locations, asylum seekers turned away by CBP must place themselves on a “list” maintained by a person or group on the Mexican side of the border.9 Each day, CBP contacts the person or entity in charge of the list and informs them of how many people can be admitted and processed in order to request asylum.10 At that point, as discussed below, CBP may then subject the asylum seeker to the Migrant Protection Protocols (MPP) program and send them back to Mexico. At some ports of entry, multiple days pass with no people called off the list.11 CBP has said that Mexicans and unaccompanied children are not subject to metering.12 However, reports have repeatedly shown that Mexicans and unaccompanied children have been forced to wait in Mexico under metering or have simply been turned back without being permitted to apply for asylum.13 The Office of Inspector General at the Department of Homeland Security (DHS) has suggested that metering or turnbacks are a direct cause of some asylum seekers choosing to cross between ports of entry, rather than wait months in Mexico in limbo, with no guarantee of ever being permitted to access asylum at ports of entry.14 The “Migrant Protection Protocols” In December 2018, the administration announced the creation of a new program called the “Migrant Protection Protocols” (MPP)15—often referred to as the “Remain in Mexico” program. Under MPP, individuals who arrive at the southern border and ask for asylum (either at a port of entry or after crossing the border between ports of entry) are given notices to appear in immigration court and sent back to Mexico.16 They are instructed to return to a specific port of entry at a specific date and time for their next court hearing.17 As of November 2019, the federal government is using MPP at six U.S. border towns:18 1. San Ysidro, CA 2. Calexico, CA (individuals sent back here must travel to the San Ysidro port of entry for hearings) 3. El Paso, TX 4. Eagle Pass, TX (individuals sent back here must travel to the Laredo port of entry for hearings) 5. Laredo, TX 6. Brownsville, TX Individuals may be sent to Mexico under MPP at a location far from where they arrived at the border. For example, some families who cross the border in Arizona have been transported by CBP to the Calexico port of entry and sent back under MPP.19 Similarly, individuals who cross in the Border Patrol’s Big Bend Sector are transported hundreds of miles and sent back under MPP in El Paso.20 In San Diego and El Paso, individuals who return for court hearings arrive at the port of entry and are transferred into the custody of Immigration and Customs Enforcement (ICE) for transport to the local immigration court.21 In Laredo and Brownsville, individuals who return for court hearings are taken to “tent courts” built next to the port of entry, where they appear in front of immigration judges through video teleconferencing equipment.22 Policies Affecting Asylum Seekers at the Border | American Immigration Council | January 2020 Page 3 of 12 According to the U.S. government’s “guiding principles” for MPP, certain groups are considered exempt from the process:23  Unaccompanied children  Citizens or nationals of Mexico  Individuals processed for expedited removal  Individuals in “special circumstances,” including: - Individuals with “known physical/mental health issues” - Individuals with criminal records or a history of violence  Individuals determined by an Asylum Officer to be “more likely than not” to face torture or persecution in Mexico on the basis of race, religion, nationality, political opinion, or membership in a particular social group The decision to send a person or family back under MPP is discretionary and is made by individual CBP officers or Border Patrol agents. Individuals who cross the border at the same time may be treated differently, with one person sent back under MPP and the other person admitted to seek asylum through the normal process. In some situations, this has led to families being separated at the border, with one parent sent back to Mexico and the other parent and the child allowed to enter the United States.24 CBP also retains discretion to take any individual out of MPP on a case-by-case basis.25 In addition, CBP has stated that it does not subject individuals to MPP from countries where Spanish is not the primary language (for example, Brazil, Cameroon, or India), although nothing in the MPP “guiding principles” requires their exclusion.26 CBP has implemented these “guiding principles” inconsistently across the border, with multiple reports of CBP officers sending back individuals with serious medical issues in violation of the guidelines.27 Under MPP, CBP officers do not ask asylum seekers if they are afraid of returning to Mexico. A person who fears harm in Mexico is required to “affirmatively” assert that fear if they want to be taken out of MPP.28 If an asylum seeker does so, the person must be referred to an Asylum Officer for an interview about their fear.29 Individuals generally are held in CBP custody for these interviews and are not allowed access to an attorney. 30 Some individuals report being handcuffed throughout the interview process.31 Government estimates of the number of people who pass these interviews range from 1% to 13%.32 Since MPP began, some Asylum Officers who conduct these interviews have spoken out about pressure to deny people and send them back to Mexico, calling the interviews “lip service.”33 The labor union representing Asylum Officers filed an amicus brief with the Ninth Circuit Court of Appeals asking the court to strike down MPP as a directive that is “fundamentally contrary to the moral fabric of our nation and our international and domestic legal obligations.”34 Policies Affecting Asylum Seekers at the Border | American Immigration Council | January 2020 Page 4 of 12 0 2000 4000 6000 8000 10000 12000 14000 16000 San Diego El Paso Brownsville Tent Court Laredo Tent Court Figure 1: People sent back under MPP, by court Through September 30, 2019 In November 2019, reports emerged that internal DHS analysis of the program had found serious flaws in the screening process that call into question whether asylum seekers are consistently provided even the limited protections available under MPP. These flaws include CBP’s reported use of “a pre-screening process that preempts or prevents a role for USCIS to make its determination,” and reports that “CBP officials pressure USCIS [Asylum Officers] to arrive at negative outcomes.”35 These findings are supported by a study of 607 people sent back to Mexico under MPP, which determined that just 40.4% of asylum seekers who expressed a fear of returning to Mexico to CBP were actually given the required fear-screening interview.36 From January 2019, when the MPP process began, through mid-November 2019, nearly 60,000 people have been returned to Mexico to await court hearings.37 As of September 2019, the largest number of MPP cases had been filed in the El Paso Immigration Court (see Figure 1), where only four judges preside.38 Source: Transactional Records Access Clearinghouse, Details on MPP Proceedings, https://trac.syr.edu/phptools/immigration/mpp/. Data on all MPP court cases through the end of September shows that of the 9,974 cases that have been completed, just 11 people had been granted relief in immigration court, compared to 5,085 people who had been issued orders of removal.39 Under MPP, many individuals will be forced to wait many months to have their asylum case decided.40 During the time these asylum seekers remain in Mexico, it is extremely difficult to obtain counsel. According to an independent analysis of data obtained from the Executive Office for Immigration Review (the office that oversees the immigration courts), less than 2% of asylum seekers in MPP have a lawyer.41 Through the end of September 2019, just 1,109 people subject to MPP had secured lawyers out of 47,313 people who had been placed in court proceedings.42 Policies Affecting Asylum Seekers at the Border | American Immigration Council | January 2020 Page 5 of 12 Many asylum seekers placed into MPP are in danger in Mexico. Individuals sent to the Laredo or Brownsville courts must reside or pass through the Mexican state of Tamaulipas, which the State Department classifies as the same level of danger as Syria, Afghanistan, and Yemen. 43 Many asylum seekers and families have been kidnapped and assaulted after having been sent back to Mexico, sometimes within hours of crossing back over the border.44 According to Human Rights First, through September 2019, there were more than 340 publicly documented cases of rape, kidnapping, assault, and other crimes committed against individuals sent back under MPP.45 Multiple people, including at least one child, have died after being sent back to Mexico under MPP and attempting to cross the border again.46 The U.S. government provides no support to individuals sent back to Mexico, leaving people to fend for themselves. Many are homeless during their time in Mexico.47 In some locations on the border, the Mexican government has created shelters that can house some—but not all—of the people sent back.48 Private shelters also provide housing for some individuals sent back under MPP. In Matamoros, as of November 2019, more than 2,000 asylum seekers resided in a tent camp along the Rio Grande river in squalid conditions with no running water or electricity.49 Given these issues, thousands of people subject to MPP have not been able to return to the border for a scheduled court hearing and have been ordered deported for missing court. 50 Some have missed hearings because the danger and instability of the border region forced them to abandon their cases and go home.51 Others have missed hearings because they were the victims of kidnapping, or were prevented from attending because robbers stole their court paperwork.52 Complicating matters, the Mexican government and the United Nation’s International Organization for Migration provide buses traveling from the U.S.-Mexico border to the Mexico-Guatemala border for individuals who choose to abandon their cases and go home. However, multiple reports have indicated that some individuals sent back under MPP have been coerced onto these buses and end up hundreds of miles from the border with no way to get back for their court dates.53 Policies Affecting Asylum Seekers at the Border | American Immigration Council | January 2020 Page 6 of 12 Asylum Transit Ban On July 16, 2019, the Trump administration announced a ban on asylum for any individuals who enter the United States at the “southern land border” after transiting through another country after leaving their home. 54 It applies to all who cross after that date, regardless of immigration status and how they enter. Even tourists or international students who travel from the United States to Mexico and back through the border could find themselves permanently banned from asylum. There are exceptions to the ban for victims of a “severe form of trafficking in persons” or individuals who applied for protection in another country and had their applications denied.55 The Asylum Transit Ban makes no exceptions, however, for unaccompanied children; even though the Immigration and Nationality Act provides special paths to asylum for unaccompanied children, who are allowed to apply for asylum outside of the immigration court process.56 It also has been applied to individuals who tried to apply for asylum at the border before July 16, 2019 but instead were turned back to Mexico and made to wait a lengthy period to seek asylum, although this is the subject of a pending legal challenge.57 The Asylum Transit Ban applies to people at different stages of the asylum process. For individuals sent back under MPP or released into the United States from the border with a notice to appear in immigration court, the Asylum Transit Ban applies at the end of the process, when an immigration judge makes a decision on an application for humanitarian protection. For people not sent back under MPP, the Asylum Transit Ban applies at the beginning of the process, when asylum seekers are put through an alternative fast-track removal process called “expedited removal.”58 These individuals are given an initial screening interview by an Asylum Officer after arriving at the border and expressing a fear of returning to their home country.59 If the officer determines that the Asylum Transit Ban applies, the officer will make a determination that the individual is ineligible for asylum and instead screen the person to determine whether they have a “reasonable fear” of persecution or torture.60 If the applicant passes this heightened screening and the officer determines their fear is “reasonable,” they are placed into full removal proceedings in immigration court.61 Importantly, individuals subject to the Asylum Transit Ban are eligible for two very limited forms of protection against deportation, known as withholding of removal and protection under the Convention Against Torture (CAT).62 These forms of relief are more difficult to win than asylum and provide fewer benefits. A person who wins asylum can eventually acquire a green card and later become a citizen.63 Unlike asylum, winning withholding of removal or CAT protections does not provide any permanent status in the United States.64 Both forms of relief can be taken away in the future if circumstances change in a person’s home country. A person who wins withholding or CAT can never leave the United States without losing the status.65 In addition, a person who wins asylum can bring their family to the United States from their home country, but individuals who win withholding or CAT are not permitted to do so. 66 This can leave families permanently separated. Policies Affecting Asylum Seekers at the Border | American Immigration Council | January 2020 Page 7 of 12 How does the Asylum Transit Ban interact with MPP? Because the Asylum Transit Ban and MPP both apply to individuals arriving at the southern border, asylum applicants may be subjected to either policy or both policies. In addition, thousands of people may have been forced to wait months in Mexico due to metering before they even enter this process. Figure 2 shows how these two polices intersect for individuals subject to either MPP, the Asylum Transit Ban, or both. Figure 3 then details exactly who is subject to these polices, at least in principle. Figure 2: Consequences of Being Subject to MPP and the Asylum Transit Ban  Subject to MPP Exempt From MPP    Subject to the Asylum Transit Ban Blocked from entering the United States to seek humanitarian protection and must wait in Mexico for immigration court hearings. Ineligible for asylum and may only apply for withholding of removal and protection under the Convention Against Torture. Permitted to enter the United States to seek humanitarian protection. Ineligible for asylum and may only apply for withholding of removal and protection under the Convention Against Torture. May be subject to heightened screenings at the start of the process for seeking protection.  Exempt from the Asylum Transit Ban Blocked from entering the United States to seek humanitarian protection and must wait in Mexico for immigration court hearings. May apply for asylum as well as withholding of removal and protection under the Convention Against Torture. Permitted to enter the United States to seek humanitarian protection. May apply for asylum as well as withholding of removal and protection under the Convention Against Torture.    Policies Affecting Asylum Seekers at the Border | American Immigration Council | January 2020 Page 8 of 12 Figure 3: MPP vs. the Asylum Ban—Who Is Subject and Who Is Exempt Subject to MPP Exempt From MPP     Subject to the Asylum Transit Ban Non-Mexican adults and families from countries where Spanish is a primary language who lack any special circumstances that would exempt them from MPP, who: - Entered after July 16, 2019; and - Do not qualify for an exception to the Asylum Transit Ban Individuals who entered after July 16, 2019 who are exempt from MPP and do not qualify for an exception to the Asylum Transit Ban, including: - Unaccompanied children; - Individuals in “special circumstances”; - Asylum seekers from countries where Spanish is not a primary language; or - Individuals who an Asylum Officer determines are more likely than not to be persecuted in Mexico      Exempt from the Asylum Transit Ban Non-Mexican adults and families from countries where Spanish is a primary language, who: - Entered before July 16, 2019; † - Are the victim of “a severe form of trafficking in persons”; or - Previously applied for asylum in another country and were denied † Although DHS has said that people put into MPP before July 16, 2019 should not be subject to the Asylum Transit Ban, this is a legal determination that can only be made by judges hearing MPP cases who may disagree. As a result, this remains an open legal question.67 Mexican citizens and nationals who entered at any time. Individuals who entered before July 16, 2019 who meet one of the exemptions under the MPP guiding principles, including: - Unaccompanied children; - Individuals in “special circumstances” - Asylum seekers from countries where; Spanish is not a primary language - Individuals who an Asylum Officer determines are more likely than not to be persecuted in Mexico; or Policies Affecting Asylum Seekers at the Border | American Immigration Council | January 2020 Page 9 of 12 Individuals who meet one of the exemptions under the MPP guiding principles who entered at any time, who: - Are the victims of “a severe form of trafficking in persons”; or - Previously applied for asylum in another country and were denied Have there been any direct legal challenges to these programs? At the time of publication, legal challenges have been filed against both MPP68 and the Asylum Transit Ban.69 Although these challenges met initial success at the lower level, injunctions stopping the programs are currently on hold. 70 Thus, the policies remain in effect across the U.S.-Mexico border while the appellate process continues in those cases. Metering has also been challenged in court.71 Plaintiffs in that lawsuit have sought a preliminary injunction preventing the government from applying the Asylum Transit Ban to any individual who was subject to metering prior to July 16, 2019.72 Endnotes 1. 8 U.S.C. § 1158(a)(1). For more information on the asylum process, see American Immigration Council, “Asylum in the United States” (Washington, DC: May 2018), https://www.americanimmigrationcouncil.org/research/asylum-united-states. 2. The administration also issued an asylum ban for individuals who crossed between ports of entry. See Addressing Mass Migration Through the Southern Border of the United States 83 Fed. Reg. 57,661 (Nov. 9, 2018). This ban has been blocked in court since implementation. See Adam Liptak, “Supreme Court Won’t Revive Trump Policy Limiting Asylum,” New York Times, December 21, 2018, https://www.nytimes.com/2018/12/21/us/politics/supreme-court-asylum-trump.html. 3. See, e.g., Secretary Kirstjen Nielsen (@SecNielsen), Twitter, 5:51 PM, June 17, 2018, https://twitter.com/SecNielsen/status/1008467103857463298 (“As I have said many times before, if you are seeking asylum for your family, there is no reason to break the law and illegally cross between ports of entry.”). 4. Congressional Research Service, The Department of Homeland Security’s Reported “Metering” Policy: Legal Issues(Washington, DC: August 2019), https://fas.org/sgp/crs/homesec/LSB10295.pdf. 5. See American Immigration Council, “Challenging Customs and Border Protection's Unlawful Practice of Turning Away Asylum Seekers,” https://www.americanimmigrationcouncil.org/litigation/challenging-customs-and-border-protections-unlawful-practice-turning-awayasylum-seekers. 6. James Frederick, “'Metering' At The Border,” NPR, June 29, 2019, https://www.npr.org/2019/06/29/737268856/metering-at-the-border. 7. Strauss Center, “Metering Update, November 2019” (University of Texas, Austin, November 2019), https://www.strausscenter.org/images/strauss/18-19/MSI/MeteringUpdate_191107.pdf. 8. Ibid., 5-14. Policies Affecting Asylum Seekers at the Border | American Immigration Council | January 2020 Page 10 of 12 9. Metering Update, November 2019, 5-14. 10. Ibid. 11. Dara Lind, “The US has made migrants at the border wait months to apply for asylum. Now the dam is breaking,” Vox, November 28, 2018, https://www.vox.com/2018/11/28/18089048/border-asylum-trump-metering-legally-ports (“Metering started up again in September, with at least one week where no one was allowed to enter the port.”); Elliot Spagat, et al., “For thousands of asylum seekers, all they can do is wait,” Associated Press, May 9, 2019, https://www.apnews.com/ed788f5b4269407381d79e588b6c1dc2 (“Some days, no one gets in”). 12. Molly Hennessy-Fiske & Wendy Frye, “Mexican asylum seekers at multiple border crossings grow frustrated with waiting,” Los Angeles Times, Sept. 30, 2019, https://www.latimes.com/world-nation/story/2019-09-30/u-s-customs-blocking-mexican-asylum-seekers-at-multipleborder-crossings. 13. Ibid. 14. Department of Homeland Security, Office of Inspector General, Special Review – Initial Observations Regarding Family Separation Issues Under the Zero Tolerance Policy (Washington, DC: September 2018), 6-7, https://www.oig.dhs.gov/sites/default/files/assets/2018-10/OIG-18- 84-Sep18.pdf. 15. Department of Homeland Security, “Secretary Kirstjen M. Nielsen Announces Historic Action to Confront Illegal Immigration,” December 20, 2018, https://www.dhs.gov/news/2018/12/20/secretary-nielsen-announces-historic-action-confront-illegal-immigration. 16. Human Rights Watch, “‘We Can’t Help You Here’: US Returns of Asylum Seekers to Mexico,” July 2019, https://www.hrw.org/report/2019/07/02/we-cant-help-you-here/us-returns-asylum-seekers-mexico. 17. Ibid. 18. Department of Homeland Security, DHS Expands MPP Operations to Eagle Pass, October 28, 2019, https://www.dhs.gov/news/2019/10/28/dhs-expands-mpp-operations-eagle-pass. 19. Rafael Carranza, “How Trump's 'Remain in Mexico' program affects Arizona border despite no formal policy,” Arizona Republic, October 10, 2019, https://www.azcentral.com/story/news/politics/immigration/2019/10/10/remain-mexico-program-affects-arizona-border-despiteno-formal-policy/3866006002/. 20. Carlos Morales, “Migrant Protection Protocols Quietly Expands To Big Bend Sector,” Marfa Public Radio, September 13, 2019, https://marfapublicradio.org/blog/migrant-protection-protocols-quietly-expands-to-big-bend-sector/. 21. Human Rights Watch, “We Can’t Help You Here.” 22. American Immigration Lawyers Association, “Featured Issue: Port Courts,” November 13, 2019, https://www.aila.org/advomedia/issues/all/port-courts. 23. See Customs and Border Protection, “MPP Guiding Principles,” January 28, 2019, https://www.cbp.gov/sites/default/files/assets/documents/2019-Jan/MPP%20Guiding%20Principles%201-28-19.pdf. 24. Robert Moore, “3-Year-Old Asked To Pick Parent In Attempted Family Separation, Her Parents Say,” NPR, July 15, 2019, https://www.npr.org/2019/07/15/741721660/follow-up-what-happened-after-a-border-agent-asked-toddler-to-pick-a-parent. 25. ”MPP Guiding Principles.” 26. Camilo Montoya-Galvez, “U.S. says asylum seekers encountered along entire southern border can now be returned to Mexico,” CBS News, September 27, 2019, https://www.cbsnews.com/news/remain-in-mexico-u-s-says-it-can-now-return-asylum-seekers-to-mexico-alongentire-southern-border/ (noting that “the U.S. government has generally only returned non-Mexican Spanish-speaking migrants to Mexico”). 27. Gustavo Solis, “Remain in Mexico: Migrants who may not be subject to policy continue to end up in Mexico,” San Diego Union Tribune, October 14, 2019, https://www.sandiegouniontribune.com/news/border-baja-california/story/2019-10-14/remain-in-mexico-migrants-whoshould-not-be-subject-to-policy-continue-to-end-up-in-mexico. 28. MPP Guiding Principles, 1. 29. Ibid. 30. U.S. Citizenship and Immigration Services, “Guidance for Implementing Section 235(b)(2)(C) of the Immigration and Nationality Act and the Migrant Protection Protocols,” January 28, 2019, 3 (“DHS is currently unable to provide access to counsel during the assessments.”). 31. American Civil Liberties Union, ACLU: Asylum Seekers Subject to Trump’s Remain in Mexico Policy Must be Given Access to Counsel, November 5, 2019, https://www.aclusandiego.org/aclu-asylum-seekers-subject-to-trumps-remain-in-mexico-policy-must-be-given-access-tocounsel/. 32. Julio-Cesar Chavez & Andy Sullivan, “Few migrants seeking U.S. asylum successfully claim fear of waiting in Mexico,” Reuters, June 28, 2019, https://www.reuters.com/article/us-usa-immigration-crossings/few-migrants-seeking-u-s-asylum-successfully-claim-fear-of-waiting-inmexico-idUSKCN1TT2UP (statement of Acting USCIS Director Ken Cuccinelli that just 1% of people are taken out of MPP); Department of Homeland Security, Assessment of the Migrant Protection Protocols (MPP), October 28, 2019, https://www.dhs.gov/sites/default/files/publications/assessment_of_the_migrant_protection_protocols_mpp.pdf.(“As of October 15, 2019,  Policies Affecting Asylum Seekers at the Border | American Immigration Council | January 2020 Page 11 of 12 USCIS completed over 7,400 screenings to assess a fear of return to Mexico. … Of those, approximately 13% have received positive determinations.”). 33. Dara Lind, “Exclusive: Civil servants say they’re being used as pawns in a dangerous asylum program,” Vox, May 2, 2019, https://www.vox.com/2019/5/2/18522386/asylum-trump-mpp-remain-mexico-lawsuit. 34. Maria Sacchetti, “U. S. asylum officers say Trump’s ‘Remain in Mexico’ policy is threatening migrants’ lives, ask federal court to end it,” Washington Post, June 27, 2019, https://www.washingtonpost.com/immigration/u-s-asylum-officers-say-trumps-remain-in-mexico-policyis-threatening-migrants-lives-ask-federal-court-to-end-it/2019/06/26/863e9e9e-9852-11e9-8d0a-5edd7e2025b1_story.html. 35. Hamed Aleaziz, “US Border Officials Pressured Asylum Officers To Deny Entry To Immigrants Seeking Protection, Report Finds,” Buzzfeed News, Nov. 14, 2019, https://www.buzzfeednews.com/article/hamedaleaziz/dhs-asylum-report-mpp-immigration-remain-mexico. 36. Tom Wong, Seeking Asylum: Part 2, (U.S. Immigration Policy Center, University of California, San Diego, October 29, 2019, https://usipc.ucsd.edu/publications/usipc-seeking-asylum-part-2-final.pdf. 37. Molly O’Toole, “Asylum officers rebel against Trump policies they say are immoral and illegal,” Los Angeles Times, November 15, 2019, https://www.latimes.com/politics/story/2019-11-15/asylum-officers-revolt-against-trump-policies-they-say-are-immoral-illegal. 38. Executive Office for Immigration Review, “Immigration Court, El Paso,” October 7, 2019, https://www.justice.gov/eoir/el-paso-immigrationcourts. 39. Transactional Records Access Clearinghouse, “Details on MPP (Remain in Mexico) Deportation Proceedings (through September 2019)” (Syracuse, NY: Syracuse University, , https://trac.syr.edu/phptools/immigration/mpp/. 40. Aaron Reichlin-Melnick, “Chaos and Dysfunction at the Border: The Remain in Mexico Program Firsthand,” ImmigrationImpact.com, September 9, 2019, http://immigrationimpact.com/2019/09/09/remain-in-mexico-program-firsthand/. 41. Transactional Records Access Clearinghouse, “Access to Attorneys Difficult for Those Required to Remain In Mexico” (Syracuse, NY: Syracuse University, July 2019), https://trac.syr.edu/immigration/reports/568/. 42. Ibid. 43. U.S. Department of State, “Mexico Travel Advisory,” Travel.State.Gov, April 9, 2019, https://travel.state.gov/content/travel/en/traveladvisories/traveladvisories/mexico-travel-advisory.html. 44. Emily Green, “Trump's Asylum Policies Sent Him Back to Mexico. He Was Kidnapped Five Hours Later By a Cartel,” VICE News, Septtember 16, 2019, https://www.vice.com/en_us/article/pa7kkg/trumps-asylum-policies-sent-him-back-to-mexico-he-was-kidnapped-five-hourslater-by-a-cartel. 45. Human Rights First, “Orders from Above: Massive Human Rights Abuses Under Trump Administration Return to Mexico Policy” (Washington, DC: October 2019), 4, https://www.humanrightsfirst.org/sites/default/files/hrfordersfromabove.pdf. 46. Nicole Chavez, “A Honduran mother and her toddler drowned in the Rio Grande trying to enter the US, authorities say,” CNN, September 19, 2019, https://www.cnn.com/2019/09/19/us/honduran-mother-son-drowning-texas/index.html. 47. Carlos Sanchez, “Migrants Stuck in Squalid Mexican Tent Camps Begin Asylum Process,” Texas Monthly, September 17, 2019, https://www.texasmonthly.com/news/migrants-mexico-tent-camps-asylum/. 48. Delphine Schrank, “Asylum seekers cling to hope, safety in camp at U.S.-Mexico border,” Reuters, October 16, 2019, https://www.reuters.com/article/us-usa-immigration-mexico-matamoros-feat/asylum-seekers-cling-to-hope-safety-in-camp-at-us-mexicoborder-idUSKBN1WV1DY. 49. Nomaan Merchant, “Squalid conditions at migrant camp shows need for help,” AP, November 14, 2019, https://apnews.com/337b139ed4fa4d208b93d491364e04da. 50. Through the end of September, nearly 40% of people subject to MPP did not appear for a scheduled court hearing. See Transactional Records Access Clearinghouse, Details on MPP (Remain in Mexico) Deportation Proceedings, https://trac.syr.edu/phptools/immigration/mpp/. 51. Gus Bova, “Migrants at Laredo Tent Court Tell Stories of Kidnappings and Violence While Pleading Not to Be Returned to Mexico,” Texas Observer, September 16, 2019, https://www.texasobserver.org/migrants-at-laredo-tent-court-tell-stories-of-kidnappings-and-violencewhile-pleading-not-to-be-returned-to-mexico/. 52. Mica Rosenberg, Kristina Cooke, & Daniel Trotta, “Thousands of Central American migrants take free rides home courtesy of U.S. government,” Reuters, August 21, 2019, https://www.reuters.com/article/us-usa-immigration-returns/thousands-of-central-americanmigrants-take-free-rides-home-courtesy-of-us-government-idUSKCN1VB0ZJ. 53. Patrick J. McDonnell, “Mexico sends asylum seekers south — with no easy way to return for U.S. court dates,” Los Angeles Times, October 15, 2019, https://www.latimes.com/world-nation/story/2019-10-15/buses-to-nowhere-mexico-transports-migrants-with-u-s-court-dates-to-itsfar-south. 54. Asylum Eligibility and Procedural Modifications, 84 Fed. Reg. 33,829 (July 16, 2019), https://www.federalregister.gov/documents/2019/07/16/2019-15246/asylum-eligibility-and-procedural-modifications. Policies Affecting Asylum Seekers at the Border | American Immigration Council | January 2020 Page 12 of 12 55. See 8 C.F.R. 208.13(c)(4). A third exception exists if the country the person passed through before arriving at the Southern Border is not a signatory to the UN Protocol on Refugees, but as Mexico is a signatory it is literally impossible to qualify for this exception. 56. 8 U.S.C. § 1158(b)(3)(C). 57. American Immigration Council, Challenging Customs and Border Protection's Unlawful Practice of Turning Away Asylum Seekers, https://www.americanimmigrationcouncil.org/litigation/challenging-customs-and-border-protections-unlawful-practice-turning-awayasylum-seekers; see also Dara Lind, “Asylum-Seekers Who Followed Trump Rule Now Don’t Qualify Because of New Trump Rule,” ProPublica, July 22, 2019, https://www.propublica.org/article/asylum-seekers-that-followed-trump-rule-now-dont-qualify-because-of-newtrump-rule. 58. See American Immigration Council, A Primer on Expedited Removal (Washington, DC: July 22, 2016), https://www.americanimmigrationcouncil.org/research/primer-expedited-removal. 59. 8 C.F.R. § 208.30(e)(5)(ii). 60. Ibid. 61. Ibid. 62. 8 C.F.R. § 208.30(e)(5)(i). 63. American Immigration Council, “Asylum in the United States” (Washington, DC: May 2018), https://www.americanimmigrationcouncil.org/research/asylum-united-states. 64. Ibid. 65. See, e.g., Withholding of Removal and CAT, Immigration Equality, https://www.immigrationequality.org/get-legal-help/our-legalresources/asylum/withholding-of-removal-and-cat/. 66. Ibid. 67. It is possible that some immigration judges may believe that individuals who initially entered prior to July 16, 2019, but who later re-enter for an immigration court hearing, may be subject to the Asylum Transit Ban. Although the government initially indicated that this was not the case, the ultimate outcome is an open legal question. See Dara Lind, “Trump’s Asylum Ban Could Apply Retroactively to Thousands of Migrants Even Though Officials Promised It Wouldn’t,” ProPublica, October 22, 2019, https://www.propublica.org/article/trumps-asylumban-could-apply-retroactively-to-thousands-of-migrants-even-though-officials-promised-it-wouldnt. 68. See American Civil Liberties Union, Innovation Law Lab v. McAleenan, ACLU.org, https://www.aclu.org/cases/innovation-law-lab-vmcaleenan. 69. See Center for Constitutional Rights, East Bay Sanctuary Covenant v. Barr, CCRJustice.org, https://ccrjustice.org/home/what-we-do/ourcases/east-bay-sanctuary-covenant-v-barr; CAIR Coalition v. Trump: A Case Summary, Human Rights First, August 28, 2019, https://www.humanrightsfirst.org/resource/cair-coalition-v-trump-case-summary. 70. Adam Liptak, “Supreme Court Says Trump Can Bar Asylum Seekers While Legal Fight Continues,” New York Times, Sept. 11, 2019, https://www.nytimes.com/2019/09/11/us/politics/supreme-court-trump-asylum.html; Richard Gonzales & Laurel Wamsley, “Appeals Court Rules Trump Administration Can Keep Sending Asylum-Seekers To Mexico,” NPR, May 8, 2019, https://www.npr.org/2019/05/08/721293828/appeals-court-rules-trump-administration-can-keep-sending-asylum-seekers-to-mexi; Vanessa Romo, “Federal Judge Blocks Trump Administration's New Asylum Rule,” NPR, July 24, 2019, https://www.npr.org/2019/07/24/744860482/trump-administrations-new-asylum-rule-clears-first-legal-hurdle. 71. American Immigration Council, Challenging Customs and Border Protection's Unlawful Practice of Turning Away Asylum Seekers, https://www.americanimmigrationcouncil.org/litigation/challenging-customs-and-border-protections-unlawful-practice-turning-awayasylum-seeke 

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Immigration Intrusive Searches of Devices Unconstitutional

Originally produced by the American Immigration Council on 11/15/19 posted with its permission

 Posted by | Nov 15, 2019 


 

A federal court ruled this week that sweeping policies permitting U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE) to search personal cell phones, laptops, and other electronic devices without reasonable suspicion are unconstitutional.

The policies that the court rejected authorized CBP and ICE officers to search the contents of electronic devices of people arriving at U.S. borders, including U.S. airports, without reasonable suspicion that those devices might have evidence of illegal activity and without a court order. Immigration officers could randomly search the cell phones and laptops of anyone arriving in the United States, including U.S. citizens and lawful permanent residents.

In Alasaad v. McAleenan, ten U.S. citizens and one lawful permanent resident challenged these policies, arguing, in part, that they violate the Fourth Amendment to the U.S. Constitution. On Tuesday, the court agreed.

Generally, the Fourth Amendment protects against unlawful searches or seizures and requires that law enforcement officers have a warrant before they can search someone or their property. However, there is an exception to this warrant requirement for searches at a U.S. border. Law enforcement officers can conduct “routine” searches at the border without a warrant and without any suspicion at all.

But searching someone’s cell phone or laptop is not a “routine” search, the federal court concluded. As the court explained, even a basic search “may reveal a wealth of personal information,” including medical and employment history, family relationships, and personal contacts.

For example, CBP officers asked one plaintiff in the case—a journalist—about photographs, emails, and contacts found on his phone. CBP returned a phone to another plaintiff having apparently removed a video of her daughter’s graduation. CBP officers questioned a third plaintiff—a graduate student and founder of a media website—about one of her blog posts while searching her phone and laptop.

These invasive searches are widespread. Available data shows that in fiscal year 2017 alone, CBP conducted over 30,000 searches of electronic devices.

Under the federal court’s decision, in order to comply with the Fourth Amendment, CBP and ICE must have reasonable suspicion that an electronic device contains illegal material before it can be searched. This means immigration officials cannot engage in fishing expeditions at the expense of the privacy of all international travelers.