Amidst the political turmoil, life goes on Gros Morne

Throughout February, as Haiti was facing an ongoing political crisis that has kept much of the country on edge, work continued. For the agronomy team from the Jean Marie Vincent Formation Center this meant visiting community organizations, presenting workshops, checking in with people and their livestock with the mobile clinic, and talking to farmers about the quality of the recent sweet potato harvest. I capture some of these activities below, with updates from the team. 



In the top-left photo above, participants in the goat program bring their goats to a mobile vet clinic led by Songé; in the top-right photo, Songé speaks with a young man who has brought a chicken in for a check-up. The goat program is built around the concept of “paying it forward.” Community groups receive training on the program and care for the goats, and then “cohorts” are formed including 10 female goats and one billy goat. When the goats have kids, they are shared with other members of the community. The chicken program works in a similar fashion, with community organizations involved in the distribution of chickens, which provide another source of food as well as eggs that can be sold in local markets.

On the bottom left, Aneus, a member of the agronomy team, holds a community meeting with people who are using a cistern to water their yard gardens in Bigue. The cistern project has been a major undertaking (funded by Focus on Haiti, a project of the Sisters of Mercy). More on this below. In the bottom right photo, Teligene, another member of the agronomy team, shows workshop participants how to prepare a smoked fish.

In this photo, Teligene & Songé hold a formation about land preparation before the spring planting in Baden. The spring planting is the primary one for the year (there is another in the fall). These kinds of trainings are one of the benefits for participants in the seed bank, through which farmers can purchase seeds at subsidized rates and hold them “in deposit” at the bank until preparations for planting are complete. The timing and success of plantings is highly contingent on rainfall, which has become increasingly unpredictable. 


Above is a map of program sites where the agronomy team is involved in training and other support for farming communities. You can see the various places where the goat and chicken programs have been launched, where work is being done with planting gardens, and in training on the planting of weevil free sweet potatoes. 

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More people removed to Haiti in last 4 weeks than all of FY2020

Photo from Wikimedia Commons

From February 1 to 26, 2021 the Biden administration removed 981 people to Haiti, including at least 270 children.  In all of FY2020 (Oct 2019-Sept 2020), the Trump administration removed 895 people to Haiti through ICE’s Enforcement and Removal Operations. Trump did expel an additional 700 Haitians at the beginning of FY 2021, yet even then, the pace of removals was not as high as we are seeing now.

What is going on? The short answer is that the Biden administration is continuing to enforce an order by the Center for Disease Control and Prevention (CDC) that shuts off asylum processing at the border. The CDC order was issued in March of 2020, and has provided the justification for the Department of Homeland Security denying people access to asylum processing or other relief. Claiming authority under “Title 42” of the U.S. code, the CDC order directs border agents to expel people as quickly as possible to the last country of transit, or, if that is not possible, to take people into custody briefly until they can be expelled to their home (or third) country. Under this order, 460,000 people have been expelled since March 20, 2020 (as of January 31, 2021). 

For people from Haiti, immediate removal to Mexico is not supposed to occur – though it has. Which means most Title 42 removals to Haiti are done by plane. We do not know how many Haitians the Trump administration summarily expelled to Mexico, nor do we know how many have been expelled this way since Biden took office. But we do know it happens – on February 3, for example, 76 Haitians (in additions to number above) were expelled by Border Patrol into Ciudad Juarez, most without papers and their belongings, all wearing the sandals they were issued at a U.S. Border Patrol detention facility prior to their expulsion.

There are many layers to this. One is that Haitians have always been treated poorly by immigration authorities in the United States. The determination of the Reagan administration to detain asylum seekers from Haiti, rather than parole them out as was typically done for other people seeking protection, led to the birth of our modern immigrant detention system. Bush and Clinton interdicted tens of thousands of Haitains at sea, most returned immediately to Haiti, others held at Guantanamo until they could be removed. The Obama administration launched a metering system at the border between Tijuana and San Diego in 2015 to slow the entrance of Haitian asylum seekers, while relaunching deportations to Haiti (suspended after the earthquake in 2010) in order to deter more Haitians from trying to come. The list goes on.

Each of these steps eventually led to an erosion of rights for everyone seeking protection at our borders. Metering, for example, was expanded by Trump, and in a twisted turn, underlay the logic of the Migrant Protection Protocols which forced 72,000 people seeking asylum to wait in Mexico for their asylum hearings.  

The fact that Haitians are typically treated more harshly is a by-product of the idea that deterrence is an important framework for immigration enforcement measures. In various ways, deterrence has been the cornerstone of U.S. immigration policy for decades. Certainly, jailing Haitians seeking asylum was intended to discourage others from trying. The same “logic” was used by Obama to justify the metering system and expanded deportations. 

Of course, deterrence ultimately targets everyone. Trump detained all asylum seekers, to deter more from coming, and his administration explicitly cited deterrence as the reason for the child separation policy employed in 2018. The Migration Protection Protocol was followed by the Transit Ban, which denied people access to asylum if they crossed a third country prior to reaching the U.S. border without first applying for asylum there. The message all around: Don’t bother trying to come here, you won’t get in at all.

This is sadly the same message Biden is currently sending. Secretary of State Antony Blinken said last Friday: “To anyone thinking about undertaking that journey, our message is:  Don’t do it.  We are strictly enforcing our immigration laws and our border security measures.  The border is closed to irregular migration.”  The Secretary of Homeland Security is offering a similar message. From the NY Times:

Mr. Mayorkas acknowledged that the United States continued to rely, for now, on a measure at the heart of Mr. Trump’s approach: a public health rule that requires border agents to quickly deport border crossers to Mexico without a chance to request asylum. “They need to wait,” Mr. Mayorkas said of potential asylum seekers. “It takes time to rebuild the system from scratch.”

For the Biden team, this message is justified by two things: 1. COVID-19 is still a threat and thus the CDC order must remain in place. 2. Biden is committed to reforming border policy but, he notes, it will “take time.” In the interim, his administration is afraid that liberalizing rules too quickly will lead to a “surge” of immigration.

There are a number of problems with these arguments. The CDC order was a political stunt from the beginning, not a serious public health measure. A surge in the number of people seeking entry is certainly possible, as a result of the ongoing deterioration of conditions in the countries people are fleeing rather than a misreading Biden’s generosity. The idea that treating people humanely makes for bad politics is a strange notion indeed. 

But none of these arguments mean much for folk from Haiti. Haitians apprehended are mostly placed in detention until they can be removed, which means they can be tested, are in effect being quarantined, and so on. There is no reason to then deny them due process, certainly not a public health argument. The deterrent argument, generally flawed to begin with, makes no sense for Haitians either – most of whom left Haiti years ago, and are arriving now via Brazil, Chile and Peru. They no doubt try to read the situation at the border the best they can, so they can decide when it is best to try and cross. But deterrence has little impact on their decision to travel thousands of miles to begin with.  

Considering all of the above, and given the ongoing political crisis in Haiti, the Biden administration’s decision to expel Haitians at this rate is unconscionable. There are many ongoing efforts to halt the expulsions to Haiti (latest letter here), as well as efforts to end Title 42 enforcement, and deportations more generally. As with Trump’s DHS team, Biden’s folk seem unmoved by these efforts. Congressional outrage, editorials from the New York Times and Washington Post, and even simple reason seem to not matter much – there was another removal flight to Haiti on March 2. Meanwhile, Biden’s administration does seem to fear the daily scorchings they are receiving on Fox News. If Obama’s presidency holds any lessons for Biden, it is that they will be scorched on Fox News no matter what they do – so why not do something bold? Or in this case, do what is right: Halt removals to Haiti! 

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The good, the meh, and the ugly: Another week of immigration politics

Over the last week there have been several advances as well as setbacks in the evolution of immigration policy under the Biden administration. The process of bringing the Migration Protection Protocols to a close was launched and the administration’s immigration reform legislation was finally introduced in Congress. Meanwhile, new operational guidance concerning enforcement priorities for Immigration and Customs Enforcement was released to mixed reviews, while a District Court judge overturned the Biden administration’s efforts to implement a 100-day moratorium on most deportations. After 10-months of being largely ignored in Congress, Title 42 is finally getting some attention, with calls for its rescision from 61 members of the House. Finally, as a reminder that U.S. border enforcement extends to Panama an agreement among Central America’s migration authorities was reached on February 23rd to block the entrance of Haitians and others traveling to the United States from South America.

Here’s what’s happening…

Migration Protection Protocol is rolled back

On Friday, the administration began implementation of its unwinding of the Trump era (error?) “Remain in Mexico” program. Outside of white nationalist circles, MPP has been a widely unpopular move with deadly consequences. Under the program, people seeking asylum in the United States were enrolled in MPP and then told to wait in Mexico for asylum hearings. The program was launched in January of 2019 and ultimately led over 70,000 people made to wait in Mexico. Hearings did not really begin until April of 2019, and when they did begin, it was something of a farcical process whereby people were escorted from the border into tents for a hearing with a judge via video conference. No legal observers or press were permitted, and representation for people in the MPP program was nearly impossible to organize. Very few people received asylum (only 643). In April of 2020 the hearings were suspended because of COVID-19. 

As a result of people being turned back to wait, informal refugee camps were set up near the Mexico side of ports of entry as people were afraid to leave the area and miss their hearing. People in these settings frequently became victims of cartels. Over the course of the two years MPP was in place, Human Rights First has documented 1,300 victims of murder, rape and assault among those enrolled in MPP. 

As of January 2021, estimates were that 25,000 people remained on the border waiting for hearings. Upon taking office, Biden suspended new enrollments into MPP, and set about creating a protocol for processing people already enrolled in MPP. That process was announced on February 11, and implementation began on Friday, February 19. People will be screened for COVID-19, and those who test negative allowed entry into the United States to await their asylum hearings. The administration has indicated it will seek to minimize the use of detention, using community support programs and possibly ankle bracelets as alternatives.

The official roll back of MPP began on Friday, as people began to be admitted in California. For some, this comes after two years of waiting.

The Citizenship Act of 2021

On the first day of Biden’s presidency, a summary of proposed immigration reform legislation was released to the media. Though submitted to the Senate a couple of days later, it has taken nearly a month for the full text of the legislation to be made public. Now it is.  We did a high level review of the contents of the legislation when announced in January. A more thorough review of the details is still to come. Vox’s excellent summary from January is here. Some other analysis and responses to the bill: Detention Watch Network, National Immigration Law Center, and Alianza Americas and Presente.

The full text of the Senate version here. The texts in the House and Senate are essentially the same for now. As the bill proceeds in both chambers, and is sliced up and amended the versions will no doubt begin to drift apart.

Congressional letter calling on Biden administration to Rescind Title 42

On February 23, 61 members of the House of Representatives called on the Biden administration to end the use of a Centers for Disease Control and Prevention order invoking Title 42 of the U.S. code as a means to shut out asylum seekers. The letter was organized by Congresswoman Frederica S. Wilson (FL-24), House Foreign Affairs Committee Chair Gregory W. Meeks (NY-5), Congresswoman Pramila Jayapal (WA-7), and Homeland Security Committee Chair Bennie G. Thompson (MS-2).  The letter says,

We write out of deep concern about continued Title 42 expulsions and deportations that have taken place in recent weeks, seemingly regardless of whether these migrants meet priorities for removals,” the letter reads. “In many cases these deportees are families and children who likely pose no security threat. The Trump administration misused Title 42 to summarily expel hundreds of thousands of migrants while denying them due process and access to the asylum system in contravention of international legal obligations.

The criticism of Title 42 is long overdue. It was inspired in part by the Biden administration’s use of Title 42 to expel close to 1,000 people to Haiti over the first three weeks of February despite the ongoing political crisis.

You can read the press release, and see a full list of Congressional signers, here. If your member of Congress is on the list, be sure to thank them for taking this stand!

The full text of the letter is here.

New Operational Guidance for Immigration and Customs Enforcement

On Biden’s first day in office, the then acting director of the Department of Homeland Security, David Pekoske, issued a memo that mandated a system-wide review of immigration enforcement policy and practice. The memo also included language on re-orienting enforcement priorities to focus primarily on people with criminal backgrounds. On Thursday, February 18, the acting head of Immigration and Customs Enforcement issued temporary guidance to ICE officers on implementing these new enforcement priorities. This interim guidance is only in place for 90-days. The director of Homeland Security, now Mayorkas, will be issuing new operation guidance at that point, following the review mandated in January.

So, what is in the new guidance? Enforcement priorities are defined under three categories: People who are deemed a threat to 1. national security, 2. border security, and 3. public safety. The priorities:

  1. National security: people possibly engaging in acts of terrorism, espionage, or whose arrest is otherwise deemed necessary to protect national security;  
  2. Border security: people apprehended after illegally crossing the border since November 1, 2020, or otherwise not present in the United States on or before November 1, 2020;
  3. Public safety: people convicted of “aggravated felonies” or thought to be involved in gang activity

Behind each of these definitions is a long history of questionable practices and abuses. For example, aggravated felonies as defined under Clinton era immigration law is overly broad. It is one reason why the single largest basis for “criminal” removals are traffic violations. Which is to say, the narrowed focus in the interim guidance will lead to fewer arrests and deportations, but is still problematic. A statement from the We Are Home Campaign, for example, said of the new priorities:

they continue to rely on flawed and racist frameworks that stigmatize all immigrants as potential threats to national security or public safety, with vague and sweeping criteria for identifying such “threats” that will disproportionately harm Black and Brown immigrants, including Muslims. The guidelines also fail to make an explicit commitment to providing meaningful access to asylum for recent border crossers.

Other responses to the guidance came from the ACLU, Detention Watch Network, and the Immigrant Legal Resource Center

Texas refuses to come in from the cold…

I’ll admit my first take at a headline came out something like this, %#^@%$!^& Texas!!!, but I was overruled. “Why the frustration?” you ask. Back on January 20, the acting director of the Department of Homeland Security, issued a memo – the same memo mentioned above – that also included a 100 day moratorium on deportations. To be clear, the moratorium did not cover all deportations, and did not include people expelled under Title 42, which is the basis upon which the vast majority of people have been removed from the U.S. over the last ten months. But, it was a start. The temporary moratorium was envisioned as part of the system-wide review of immigration enforcement procedures. Halt most deportations, while reviewing the policy. Makes sense, right? 

Enter the Attorney General of Texas, Ken Paxton. He decided to make some right wing hay out of this order, (he referred to it as a “ seditious left-wing insurrection”) and sued to block it. His main argument (at least the one out of six specious arguments the court accepted) was that Texas would suffer tremendous cost from the detention of immigrants not deported.* Absolute. Nonsense. There is always executive discretion on who gets deported and when, and most detention costs are carried by the Federal Government, not the state of Texas (whose localities, sadly, actually make money hosting detention facilities). Yet, a district judge, Drew Tipton, appointed by Trump, agreed, and on January 26 to issue a temporary restraining order (TRO) against the order. The TRO was extended until February 23rd. Then, late in the evening on February 23rd, Tipton issued a national injunction on the moratorium. 

It is not clear if the Biden administration will appeal. 

*Update:  To clarify: The question of costs incurred by Texas is the basis upon which Texas claims to have standing in this case as an injured party. The actual legal questions at hand are largely procedural. Texas claims, in various ways, that the Biden Administration did not follow agreed upon procedures in terms of informing/consulting with Texas, seeking alternative measures and so on. For those interested you can read the ruling here.

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Haiti update, and call to stop removals!

On February 7, Jovenel Moise refused to step down from the presidency of Haiti. As we reported last week, there has been a flurry of activity since, as Moise has sought to secure his position and attack opponents. On the morning of February 7th, Moise had 20-23 people arrested, including a supreme court justice and police inspector, on charges that they were plotting to kill him and take control of the government. The coup narrative, reported widely around the world that day, served its purpose of deflecting attention away from the source of the crisis (Moise’s refusal to step down) but has mostly been met with skepticism since. 

Later that evening a segment of the opposition selected another supreme court justice, Joseph Mecene Jean-Louis , to serve as a provisional president. The next day, police officers surrounded the Supreme Court building, and Moise, later “retired” three more justices. The retirements were likely not legal, and neither was Moise’s appointment of three replacements on Friday. With the Supreme Court recast in his image, and Parliament defunct, Moise has contained any institutional opposition to his continued rule. 

Not surprisingly, of course, over the past week there have been demonstrations against the government. In several of these demonstrations police very clearly targeted journalists, two of whom were shot. Mobilization from popular neighborhoods in the capital are dangerous, as many of these neighborhoods are under the control of gangs aligned with the government. The biggest demonstration of the week came on Sunday, February 14.

Moise is still holding the executive office, and is pressing ahead with plans for a referendum on a package of constitutional reforms to be held in April (though when or if this happens is still an open question). The reconstitution of the Supreme Court takes on increased relevance here, as the referendum itself is likely unconstitutional. If Moise proceeds, he is likely to use the new court to approve the various measures he is attempting to roll out.

The “opposition”

While many people have rallied behind Justice Joseph Mecene Jean-Louis  as a provisional president, he is hardly a consensus choice. This underscores an important point for all of us reading the crisis from abroad: The opposition is not a singular entity. In March of 2019 Commune published an article by the Kolektif Anakawona that provides background on different facets of the opposition, a rubric that is still largely applicable and worth a review.

There is, of course, a “partisan” opposition, made up of current and former parliamentarians. These folks were the focal point of attention when parliament was still in session, but many of them struggle with legitimacy among grassroots and popular organizations. Youri Latortue, for example, led the charge in investigations of abuse of PetroCaribe funds, yet has himself been the target of corruption investigations. If one focuses solely on the disputes between opposition members of parliament and Moise, it gives the appearance that the crisis is rooted in partisan wrangling. That is certainly how the White House under Trump and now Biden has viewed it. This would be a gross oversimplification.

People have been mobilizing not for a change of party but for structural change. What this means might vary group to group, but ultimately it is a demand for a more inclusive society – not simply better elections. Nou Pap Domi, a grassroots organization that grew out of the PetroCaribe protests, for example, issued a “Message to the Nation” on February 6, 2021 that said, “NOUPAPDÒMI does not recognize the legitimacy of the rest of the senators in parliament, nor some civil society actors as well as some politicians who were involved in all the wasteful negotiations and initiatives that got us into this crisis, to organize any dialogue or play any role in the country’s governance after the presidential term ends. There will be a RUPTURE from all the people, all the groups that never worked for the well-being of the people, who are up to their elbows in everything that got us into this state of turmoil today.”   

Though there is a diversity in the long and medium term vision of where Haiti needs to go – from politicians seeking new elections and new positions in a newly reformed government, to youth organizations seeking a rupture with the past and reconstitution of political and economic forces – there is near unanimity that Moise’s term has expired and a transition must begin immediately. Again, reading the crisis from the United States, we are confronted with the fact that our government’s position stands against the vast majority of Haiti’s political organizations and civil society. That said, we must keep in mind that no one group “speaks for the people of Haiti,” an obvious fact that somehow gets glossed over. From the U.S. then, we should demand that Biden’s State Department drop its support for Moise’s mandate extending to February 7, 2022 – but not argue about who gets to take charge, or how. Under no circumstance should we demand that the U.S. play any role in removing Moise. 

As we’ve said many times, the U.S. needs to get out of the way of a solution rather than promote the one that seems most conducive to U.S. interests. By simply saying, some variation of “the United States supports the people of Haiti in deciding the way forward…,” the Biden administration would make a solution far more likely. Currently, however, what we see is a stream of patronizing platitudes raining down on Haiti from the U.S., O.A.S., and U.N. that endorse Moise’s tenure. The expressions of concern, cautions about constitutionality and the expressed need for dialog all become pretty vacuous when enjoined with, “and we think Moise’s mandate ends February 7, 2022.” 

Biden has removed more people to Haiti in three weeks than Trump did in all of FY2020

Yes that is true. The Biden administration is expelling people to Haiti at an insane rate. And they continue to, After flying people out nearly every day (there were three expulsions flights to Haiti in one day last week!), this week there was a short break due to the weather – not principle – with transportation and energy infrastructure in Texas largely shut down. That said, there were still removal flights to Haiti on Monday and Friday.

According to ICE’s recently released annual report for FY 2020 (which runs from October 1, 2019 to September 30, 2020), 895 people were removed to Haiti during that year – which includes Title 42 removals from March to September. While precise numbers on the flights this month are not known (flight manifests are not public) there have been 13 flights since February 2, some full with 135 people, others with fewer. But estimates are that at least 900 people have been removed so far this month, most of whom have been part of family units. Including infants.

So, Biden’s ICE isn’t any nicer than Trump’s. Amidst the current crisis in Haiti, this level of removal is unconscionable. 

What you can do?

For now, we are very much focused on ending the expulsion of people to Haiti. There are a number of petitions and statements circulating that you can join onto. While these actions do not address the roots of the crisis in Haiti, they are directed at one of the inhumane responses of our government to that crisis – continuing to expel people.

The Haitian Bridge Alliance is circulating a letter calling for a halt to removals to Haiti. It is a strong letter and open to organizations and individuals. You can view the letter hereand sign here.

The Interfaith Immigration Coalition is circulating a sign-on letter for congregations and other organizations, calling for end to removals. You can sign your group on here.

The Interfaith Immigration Coalition is also circulating a letter for individual faith leaders to sign. View that here

Faith in Action is also circulating a statement to end removals to Haiti in the context of the political crisis. You can sign that here.

There is a growing movement to press Biden to revoke Title 42 sooner rather than later. The Latin America Working Group has launched a petition to the effect which you can sign here.

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Good news, bad news: The Biden administration and immigration in week 4

“Sen. Joe Biden campaigns in Ankeny” by IowaPolitics.com is licensed under CC BY-SA 2.0

We’ll start with the bad news. Very bad news. Last Friday we reported that the administration had agreed to a suspension of removal flights to Haiti. They were suspended for one day (Friday), On Monday the flights began again, and have continued every day this week.

Neither, Biden’s team at Homeland Security or at the Domestic Policy Council have provided any kind of convincing public answer about why they are continuing the flights to Haiti – just as they made no public commitment to the suspension to begin with. But where they have talked around it, the response is disingenuous at best.

The first suggestion is that they have no choice. Biden, they will say, attempted to launch a 100 day moratorium on deportation. It was announced on January 20th, implemented on January 22nd, and then blocked by a federal judge “in Texas” on January 26. The judge “paused our pause,” one Biden official explained on a policy call. There are two problems with this answer. Firstly, most of the people being removed to Haiti are in fact being expelled under Title 42; the moratorium was never intended to cover Title 42 expulsions. Which means, 90% of the people being removed to Haiti right now, all other things being equal, would be removed anyway under the terms of the moratorium. We note that during the five days the moratorium was enacted, there were still removal flights everyday except Sunday – Title 42 removals and others not covered by the limited moratorium.

Secondly, the administration has indicated that it is working on “new protocols” at the border that will take a few weeks to prepare. Until then, anyone crossing the border will be expelled. The “we are working on it, and just need time” answer seems reasonable, but provides little actual substance. The Quixote Center was one of 100 organizations to sign a letter to Biden asking for the revocation of Title 42, for example. The response from the White House was not particularly promising:

On behalf of the team at the White House, thank you to you and your signers for this letter. From day one, the President has prioritized taking urgent action to begin to create a more humane and just immigration process, including an executive order announced yesterday which included directing the Secretary of Homeland Security to review the Migrant Protection Protocols.

These measures are only the beginning and demonstrate the President’s commitment to addressing this issue in full. It is important to underscore that the situation at the border will not transform overnight, due in large part to the damage done over the last four years.

Of course, if the various policy reviews do lead to significant change, this will be welcome. But Biden has not been very clear on his vision thus far, nor a timeline. This is contributing to a great deal of confusion at the border. To be clear, if there is a crisis it is largely of Trump’s making. But a good lesson for Biden to take from Trump’s time in office is that a lack of clarity makes things worse.

One final word on unclear messaging about these removals. From Amy Goodman to the New York Times, another line of argument is that ICE has gone rogue, and is continuing to deport families and kids in spite of new guidance from the Department of Homeland Security to change enforcement priorities. This version of events misreads the January 20th memorandum from DHS acting director Pekoske – the same memo that included the deportation memorandum. The shift in priorities, like the moratorium, has nothing to do with Title 42 removals. We keep emphasizing this, and will continue to beat this drum until the policy changes. Title 42 denies people all due process. They are simply expelled. Period.

In the end, these expulsions to Haiti are not the fault of a judge in Texas or a rogue immigration agency. Biden has the power to stop them by either revoking Title 42 completely for everybody, or using the discretion allowed under the CDC order for humanitarian relief to stop the flights to Haiti. He thus far is refusing to use that power. 

So now, some good news! 

Yesterday, Buzzfeed reporter Hamed Aleaziz released details on the Biden administration’s plan to wind down the Migration Protection Protocols. The details of the “plan” from Buzzfeed:

The Biden administration’s plan, which will start slowly at three ports of entry, targets those who were pushed into the Remain in Mexico program and still have active cases in US immigration courts, according to a draft of the plan obtained by BuzzFeed News. Those who qualify after registering online should not come to the border, but instead wait for instructions to start the entry process, a source with knowledge of the plan said.

As they prepare to enter the US, the immigrants will be kept in so-called staging areas in Mexico, where they will receive a medical screening and a COVID-19 test. Those who test positive for the disease will be forced to continue waiting in Mexico until they test negative.

US Customs and Border Protection officials will also assess the capacity to intake those allowed into the US on a daily basis. Officials believe they can process up to 300 people a day within the first few weeks at two of the ports of entry for the initial phase.

“This is an effort that has been months in the planning. I think it absolutely shows that the administration was serious about this commitment,” the source said.

The initial effort will prioritize people based on when their cases were open, but there will be some opportunities for those who are particularly vulnerable to be fast-tracked, the source added. The US government estimates that 25,000 people in the Remain in Mexico program are still awaiting their court hearings.

Department of Homeland Security officials will not allow in people whose US asylum cases were terminated or who already have deportation orders. People who do not follow the reentry plan will also be turned back, in some cases using a public health law that allows for US border officials to quickly turn back immigrants at the border. This week, the White House also warned that most immigrants will still be turned away at the border. (Emphasis added).

The Migration Protection Protocols had resulted in 60,000+ people being forced to wait in Mexico for an asylum hearing. Since April, due to COVID-19, hearings have been suspended. Even when they were happening, they were a bit of a disaster. Setting in motion a process to help people get through this process quickly is thus huge. The devil is, of course, in the details as they say. And while 25,000 may still be enrolled and waiting in Mexico under MPP, January was the fourth month in a row that more than 60,000 people were expelled under Title 42 – and it seems clear that is not ending anytime soon.

Another bit of good news is that the State Department formally suspended Asylum Cooperation Agreements with Honduras, Guatemala, and El Salvador. The Trump administration had negotiated these agreements in order to send asylum seekers back to one of these countries. The agreement with Guatemala was the only one operative when COVID-19 restrictions went into place. Hundreds of asylum seekers from El Salvador and Honduras were sent back to Guatemala to seek asylum in the first part of 2020 under that agreement.

 

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Political Crisis in Haiti

As many of you know, Jovenel Moise refused to step-down from Haiti’s presidency on Sunday, February 7, 2021. Moise is arguing that a delay in his inauguration (he did not take office until 2017) means he should serve until February 7, 2022. The United States government and Luis Almagro, OAS General Secretary are standing by Moise. Meanwhile, most of Haiti is not.

Woy magazine published one of the clearer explanations of the argument about Moise’s term, sighting the section 134-2 of the Constitution, as amended in 2012: The president elected enters into his functions on 7 February following the date of his election. In the case where the ballot cannot take place before 7 February, the president elected enters into his functions immediately after the validation of the ballot and his mandate is considered to have commenced on 7 February of the year of the election.

Moise won election in 2016 (following allegations of fraud during the original 2015 election), hence, his mandate is considered to have begun on February 7, 2016. Seems clear enough.

That said, another president might have garnered the benefit of the doubt. But not Moise. He has been the target of ongoing demonstrations since July 2018. At that point frustration with economic decline, revelations (some implicating Moise) of billions of dollars stolen out of PetroCaribe funds, and an IMF mandated cut in fuel subsidies all combined to send thousands of people into the street, and ultimately led to the collapse of the government and resignation of Prime Minister Jack Guy Lafontant.

Moise, however, survived.  Over the last two and half years, there have been ongoing protest cycles that have locked the country down repeatedly, the one consistent demand: Moise’s resignation. Another Prime Minister was forced to resign following protests in February of 2019, and a new government, at least one approved by Parliament, never materialized. Yet, Moise remained. Then in January 2020, the terms of the House of Deputies, and the majority of Senators expired. Since then, Moise has been ruling by decree and the human rights situation in the country has deteriorated even further.

Moise’s refusal to step down was not a surprise. He has been indicating that he intended to stay in power for some time now. He has proposed a constitutional referendum for this April, to be followed by two rounds of elections in the fall. The Electoral Commission he appointed to oversee all of this, was not approved by most sectors and is widely seen as illegitimate. The opposition, though divided in many ways, remains united in the demand the Moise step aside and allow a provisional president or council to oversee elections. There is precedent for this. Mosie’s predecessor, Michele Martelly stepped down in 2016 despite there being no replacement, to allow a provisional president to complete the electoral process (delayed for wide spread accusations of fraud) that brought Moise to power.

Timeline of activity this week

Events since Sunday have evolved quickly – too quickly to offer much detailed analysis (below the timeline I point to some resources that give a deeper understanding of the context of events). Here I simply offer a summary and highlight stories and statements

Sunday

Moise announces a foiled coup attempt from the airport, (on his way to Jacmel). 

Those arrested include a Supreme Court justice Yvickel Dabrésil and police inspector Marie-Louise Gauthier

Many are skeptical of the coup story.

Later in the day, Moise issues a pre-recorded message, declaring his intent to remain in office and hold a referendum on Constitutional changes. 

Opposition leaders select Supreme Court Justice Joseph Mecene Jean-Louis as provisional president. He gives a brief statement.

Monday

Monday morning, Haiti National Police surround the Supreme Court

Moise issues an order “retiring” three Supreme Court justices

Many are skeptical of the legality of this order,

The Haitian military (FAdH) release a press statement citing responsibility to “assure national security” and defend “democratic order.”

During protests on Monday, two reporters are shot (both still alive)

Tuesday

OAS General Secretary Luis Almagro Issues a statement expressing concern, but endorsing Moise’s position.

The United States Embassy issues a statement claiming to be “deeply concerned” about order to remove judges. However, the U.S. does not walk back form its support of Moise’s decision to remain in power.

Guerline Josef from the Haitian Bridge Alliance appears on Democracy Now to discuss the Biden administration’s resumption of removal flights to Haiti after only a one day suspension.

Wednesday

On Wednesday, students demonstrate in Port au Prince

The demonstration is broken up by the police, who once again target journalists covering the march.

Moise announces a new agroindustrial park – apparently on behalf of the Apaid family (apparel industry giants, among other business interests in Haiti)

Thursday

Supreme Court justice Yvickel Dabrésil, one of the accused in the alleged “coup” plot, is released from jail.

Demonstrations are announced for the coming Sunday

Resources/Background

Some reactions from Haiti’s civil society to the arrests and forced retirements from the last few days (List from Institute for Justice and Democracy in Haiti)

More Haitian civil society statements (most have been translated) on crisis on the new Haiti Watch blog

More back ground, see Mark Schuller’s excellent NACLA article,”The Foreign Roots of Haiti’s ‘Constitutional Crisis’”published online February 6, 2021

The Institute for Justice and Democracy in Haiti’s most recent report on the human rights situation

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Title 42 must be revoked, Expulsions to Haiti ended

Over the last few days the Biden administration has increased the removal of people from Haiti dramatically. Most of these removals appear to be Title 42 expulsions. What we’ve seen this week:

  • On Monday deportation flight of 103 people to Haiti, all Title 42 removals
  • On Tuesday deportation flight of 64 people to Haiti, 60 were Title 42 removals
  • On Wednesday Border Patrol expelled dozens of Haitians into Ciudad Juarez, Mexico, citing Title 42
  • On Thursday two deportation flights of 135 people and 126 people to Haiti, almost all Title 42 removals. The second flight seems to have been all family units.

There are another 1,400 people from Haiti expected to be expelled over the next 10 days, mostly all from border facilities where they are being temporarily held awaiting removal under Title 42. Thanks to the work of advocates putting pressure on the administration, as of Friday morning (February 5) we are hearing that flights are temporarily suspended to Haiti. 

Back in October there was a similar flurry of flights to Haiti. Then as now, this was the result of a spike of border apprehensions, including many Haitians. That earlier round of expulsions involved about half the number currently facing immediate removal. Almost all summarily expelled without due process under Title 42. 

What is Title 42?

On March 20, 2020 the Center for Disease Control and Protection (CDC) issued the Order Suspending Introduction of Certain Persons from Countries Where a Communicable Disease Exists. This order claimed authority given to the CDC under Title 42 of the U.S. Legal Code to block entry of people into the United States as a response to a public health crisis, COVID-19 in this case. The original order was replaced by the Order Suspending the Right to Introduce Certain Persons from Countries where a Quarantinable Communicable Disease Exists on October 13, 2020. These orders are identical except that the October version includes summary evidence of the impact of the original March declaration. Referred to as “Title 42” these orders provide the basis for Customs and Border Protection to summarily expel anyone they encounter, with no access to asylum or other relief.

Since issued, “Title 42” has been the primary grounds by which migrants are removed from the United States. From March 20 through the end of December, 400,000 people were expelled under this order. The numbers are increasing now. From October to December of 2020 the number of people expelled under Title 42 averaged 2,000 a day. January numbers have not been released yet by Customs and Border Protection, but will almost certainly go up. Border Patrol agents interviewed by U.S. News and World Report indicated removals have increased since Biden took office. 

The vast majority of Title 42 expulsions involve people from Mexico and Central America. People are arrested at the border and sent back across almost immediately – at one point the Border Patrol director bragged that 90% of Title 42 expulsions happened within two hours of first encounter. People have no opportunity to request asylum or other relief, except under a very limited provision whereby someone who self-declares a fear of torture is interviewed by an agent from USCIS, who then makes a decision on the spot whether the fear is credible. None of these decisions are reviewable.

The situation for people from Haiti is somewhat different than most expelled under the order, though, like everyone, they are denied due process. When Title 42 began the government of Mexico indicated that it was only willing to receive Mexican nationals, as well as people from El Salvador, Honduras, and Guatemala. This meant that people from other countries would have to be detained briefly until they could be flown out of the United States. So, even though the rationale for Title 42 was the lack of capacity to detain and test people at the border, people are being detained anyway, and if put on a flight, some (not all) are tested. Which means, that in the case of people from Haiti (as well as Cuba, Venezuela, India, Pakistan, Cameroon and others who attempt entry at a border, but who cannot be immediately removed to Mexico) the basis for denying them asylum under Title 42 should be void. It is important to note as well, that though Haitians are not supposed to be sent back into Mexico, the expulsions this week to Ciudad Juarez mentioned above are not the first time this has happened. The Guardian reported this week concerning mothers from Haiti and elsewhere, who were expelled to Mexico under Title 42 after giving birth to children in the United States; expelled without birth certificates for their children. 

Haitians need relief from removal NOW

That said, Haitians are being expelled in large numbers now, and this must stop. To put this in perspective, “normal” deportation flights to Haiti happen about 2 times a month and include anywhere from 30 to 100 people, with the numbers mostly declining over the last 6 months (except for the last round of Title 42 exuplsions in October). The expulsion of 1,800 people to Haiti over a two week period is incredibly cruel. Though currently suspended expulsions could restarted at any point.

Haiti is in the midst of worsening political crisis, one that is likely to come to a head in the next week as the current president, Jovenal Moise, insists on staying in office, even as many legal scholars and advocates argue his term ends this Sunday, February 7. With no acting parliament, Moise had been ruling by decree since January of 2020. He intends to press a constitutional referendum in April, followed by elections in the fall. However, none of this is constitutional. Moise’s resignation has been the rallying cry for repeated protests since summer of 2018. In response, the government has increasingly employed violence against demonstrations and in November issued an executive decree increasing penalties for protest, and establishing a new intelligence service. The political situation is very tense, and could devolve quickly over the next week as the fight over Moise’s term moves once again to the streets.

Beyond the political crisis, is an ongoing economic crisis, ever present threat of mass hunger, and constant insecurity from gang activity including a large number of kidnappings. Anger over kidnappings led to a national transportation strike this week. Haiti’s institutions are failing. Now is not the time for mass expulsions.

Finally, there is this thing called the COVID-19 pandemic. Of course, the pandemic is the reason for Title 42 to begin with. The problem is that, by the time people are removed to Haiti, they’ve been detained, and that means detained in a facility where exposure to COVID-19 is highly likely. Why? Immigration and Customs Enforcement has done a horrible job of implementing protocols to protect people in its custody. One result is that people testing positive for COVID-19 have been repeatedly deported all around the world. The last thing Haiti needs now, on top of everything else, is a resurgence of COVID-19 from thoughtless removals.

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Biden’s Executive Order on Central America Does Little

On Tuesday evening, February 2, 2021, President Biden issued an Executive Order on Creating a Comprehensive Regional Framework to Address the Causes of Migration, to Manage Migration Throughout North and Central America, and to Provide Safe and Orderly Processing of Asylum Seekers at the United States Border. Despite the length of the title and impressive agenda implied therein, the order is sadly disappointing in terms of substance. Though it includes the rescission of several Trump executive orders, on other issues of great importance the executive order does nothing concrete. Rather, it mandates the creation of two strategy papers related to roots of migration, a report on visa and asylum processing, and a series of policy reviews on a variety of topics, including 6 and 9 month reviews on the legal bases for seeking asylum. Specific policy decisions on controversial programs such as the Migrant Protection Protocol, Title 42, and the Transit Ban are deferred, awaiting review and recommendations concerning whether to rescind or modify the original orders.

As formulated, it is hard to understand why any of this requires an Executive Order. It seems that an executive order(s) would follow policy reviews, such as those mentioned. Mandating such reviews could simply be handled via departmental memorandum. It is also worth noting, that the policy considerations in Sections 2 and 3 of the order are already part of legislation introduced into the Senate as the Citizenship Act of 2021 – a wide ranging immigration reform bill promoted by the Biden team and introduced by Bob Menendez (D-NJ). Which is to say, actual authorization and budget considerations for items discussed vaguely in the first half of this Executive Order, will actually be hammered out in Congress based on a strategy Biden has already unveiled.

The order, therefore, creates more questions than answers. That said, since we work in Central America and work on migration, we took the time to review it. Here is a summary of what is there. You can read the full order here

The first item of substance is a president directive to, “the Assistant to the President for National Security Affairs (APNSA), in coordination with the Secretary of State, the Attorney General, the Secretary of Homeland Security, and the heads of any other relevant executive departments and agencies” to create the United States Strategy for Addressing the Root Causes of Migration (the “Root Causes Strategy”); and the United States Strategy for Collaboratively Managing Migration in the Region (the “Collaborative Management Strategy”).

The “Root Cause Strategy” will include methods for combating corruption and promoting respect for human rights; and directs U.S. officials to work with the USTR to ensure that labor rights are defended within the framework of the Central America Free Trade Agreement. The order also includes an incredibly vague encouragement to deploy “Northern Triangle domestic resources and the development of Northern Triangle domestic capacity to replicate and scale efforts to foster sustainable societies across the region.” 

For more detail on what will ultimately be in this strategy, it would be instructive to review The Biden Plan to Build Security and Prosperity in Partnership with the People of Central America. This document, which shapes the legislative priorities laid out by the Biden’s administration in the Citizenship Act of 2021, argues for $4 billion dollars in assistance to Honduras, El Salvador and Guatemala to address the roots causes of migration by combating corruption and promoting investment. 

The “Collaborative Management Strategy” has some interesting ideas in it, but seems mostly geared toward keeping asylum seekers away from the U.S. border by creating regional placements “as close to home as possible.” So, one reading of this strategy is an alternate version of current (and much criticized) asylum cooperation agreements with Honduras, El Salvador and Guatemala (which, in current form, may be cancelled by this order), alongside the buttressing of Mexico immigration enforcement. From the order: “The Collaborative Management Strategy should focus on programs and infrastructure that facilitate access to protection and other lawful immigration avenues, in both the United States and partner countries, as close to migrants’ homes as possible.” (emphasis added).

Ultimately whether this is a progressive change will depend on whether or not new rules mandate that people seek asylum closer to home. In other words, enhancing capacity to provide meaningful legal protections to people seeking to migrate is always a good thing. Denying people access to U.S. asylum procedures because alternatives exist, would not be a good thing – this is what Trump did, if far more clumsily. 

Section Three is concerned with expanding “Lawful Pathways for Protection and Opportunity in the United States.” However, like section two, the actual deliverable is a series of reports. Which is to say, there is no new policy here, but a directive for the Secretary of State and the Secretary of Homeland Security to study and make recommendations to 1.)  Re-establish the Central American Minors program – an Obama era initiative through which Central American youth can apply for refugee status from their home country before traveling to the U.S.; 2.) create a Central American Family Reunification Program – which would allow family members already approved to join family members in the U.S. while final visa processing is undertaken; and 3.) look for ways to expand visa access where “appropriate and consistent with applicable law” – which is no change at all, but does create new priorities. All of the above is also part of the proposed Citizenship Act of 2021, so not clear why a series of reports on this requires an executive order.

Section 4 is perhaps the most frustrating section of the Executive Order. This section mandates a review and recommendations concerning whether to rescind or modify the following: The Migrant Protection Protocols (Remain in Mexico program), the Center for Disease Control and Protection order closing the border to most migrants (“Title 42”), the Transit Ban, and Asylum Cooperation Agreements with Guatemala, El Salvador and Honduras.  Though the order says the administration “intends” to end asylum cooperation agreements  (a point later confirmed by the State Department), the door is left open here to modify, rather than cancel these agreements.

The order also calls for a 180 day, “comprehensive examination of current rules, regulations, precedential decisions, and internal guidelines governing the adjudication of asylum claims and determinations of refugee status to evaluate whether the United States provides protection for those fleeing domestic or gang violence in a manner consistent with international standards.”  Finally, the order calls for 9-month review of refugee status, “addressing the circumstances in which a person should be considered a member of a ‘particular social group.’” 

The only concrete changes in enforcement/policy here are the revocation of several presidential memorandum on immigration issued by Trump, as well as Trump’s Executive Order of January 25, 2019. All of these are good moves, consistent with the administration’s commitment to revoke much of Trump’s agenda.  

As we mentioned last week, Biden had promised a series of Executive Orders on border policy and the restoration of asylum. Rather than issue the promised series of orders, it seems the administration has chosen to issue just this one catch all order, which really does little but command further study. This is disappointing to be sure. We all know that changing policy at the border is politically challenging, and to some degree, has logistical limits while the administration tries to re-prioritize how people are processed. Unfortunately, it seems that Biden is already playing a game of modifying expectations and delaying commitments on these harder issues. As our concern remains with the people stuck in limbo and in grave danger at the border, living under the threat of COVID in detention facilities, or fleeing for their lives from any number of countries, we will continue to speak out about the need to end these policies NOW!    

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Biden and Immigration: Week 2

On Biden’s first day in office he issued seventeen executive orders, 6 of which dealt with some facet of immigration policy. He also released a summary of a bill his administration would be sending to Congress; and the acting head of the Department of Homeland Security issued a memorandum that called for a moratorium on deportations and shifted enforcement priorities. It was an auspicious start – which we tried to capture in some detail last week on the blog.

Biden’s second week in office saw challenges emerge to his initial efforts, and, partly as a result of those challenges, delays in a planned second round of executive orders aimed at restoring the asylum system back to something like it was before Trump demolished it. 

Don’t mess with Texas?

The biggest challenge to Biden’s volley of executive orders came from Texas. The lonestar state is home to Attorney General Ken Paxton, who is deeply committed to Trump-level truthiness when it comes to mobilizing his constituents. It was Ken Paxton, afterall, who engineered Texas’ challenge to the integrity of elections in Michigan, Pennsylvania and Georgia. This challenge was tossed quickly from federal courts for lack of standing or sense, but nevertheless put Paxton’s face on the screen of devices around the country.

On January 22, Paxton sued to block the 100-day moratorium in Federal court. Though a thinly veiled political stunt, Paxton’s office was nevertheless successful in getting a 14-day injunction against the moratorium from Trump appointee, District Judge Drew Tipton. The moratorium went into effect on January 27, and will hold until there is a further hearing on the merits of the case, at which point another decision will be made, appeals and so on. 

Paxton’s argument is that the moratorium violates federal law, specifically 8 U.S. Code § 1231. The problem here is that both the Texas filing and Tipton’s order are based on an oddly truncated version of the law. In the court order, the law in question is presented as, “when an alien is ordered removed, the Attorney General shall remove the alien from the United States within a period of 90 days.” This seems clear cut, and if “shall” is read as “must,” which Tipton argues, then clearly there is not much wiggle room. However, what the law actually says is this: “Except as otherwise provided in this section, when an alien is ordered removed, the Attorney General shall remove the alien from the United States within a period of 90 days.”  The “otherwise provided” governs the “start time” of the 90-day period, and also, very broadly, provides the conditions under which the 90-day period can be exceeded. 

Which is to say, even if the law does not specifically envision a moratorium on removals, it does grant enormous discretion to the executive. 

In the end, the merits of the case seem irrelevant here, as Paxton is simply enjoying posing for the partisans. Biden’s limited moratorium and policy review is reconstituted on Paxton’s Twitter page as, “a seditious left-wing insurrection.” And he wants everyone to know that, though he does not know what “sedition” means, “my team and I stopped it.” 

Asylum Orders

On Friday, January 29, Biden had intended to issue a series of new Executive Orders that focused on asylum. The details of the orders remain a bit murky at this point, and the timeline has been pushed back to at least next week (as far as we know, that is – there is always a chance something may come out later today, after we publish). You can see a summary from Reuters here.

The orders are expected to grapple with the following:

Biden will end Asylum Cooperation Agreements that had been negotiated separately with Honduras, Guatemala, and El Salvador. Under these agreements, the United States treats these countries as “safe third countries” and sends asylum seekers that reach the United States border back to one of them, where people can then apply for asylum in that country. Prior to COVID travel restrictions, the only agreement that was operative was the one with Guatemala. Under the provisions of that agreement hundreds of asylum seekers from Honduras and El Salvador were sent to Guatemala, where they were told they could seek asylum. The agreements have been the subject of much criticism, as Honduras, Guatemala and El Salvador are in fact the source of most of the refugees seeking entry into the United States.

Biden is expected to end the transit ban. The Trump administration killed asylum at the border for everyone not from Mexico with his “transit” ban. Under the provisions of this executive rule, no one who travelled through a third country before arriving at the United States’ border is allowed to apply for asylum unless they first applied in a transit country, and were denied. In effect, the transit ban meant that only people from Mexico could apply for asylum – and there are other restrictions in place that make that difficult already. The transit ban was the subject of a court challenge, and temporarily halted as a result. However, the order is still on the books and Biden needs to take executive action to formally end it.

Biden is also expected to restart a program that allowed children from Central America to apply for asylum in the United States – but from their home country, rather than make the journey to the U.S. first. The Central American Minors Program was started by the Obama administration during a spike in unaccompanied minors seeking entry at the U.S. border back in 2014 and 2015. Though the program was never able to process enough claims to keep up with the number of youth seeking to migrate, it was a start toward creating a more humane system for those seeking to flee violence in Central America. Trump ended the program soon after becoming president.

There is also some hope that Biden’s administration will formally end the Migrant Protection Protocol (“Remain in Mexico” program), and eventually revoke the Center for Disease Control and Protection’s order that has shut the border to all seeking entry, leading to what is referred to as “Title 42” expulsions. Between March and December of 2020, 400,000 people have been summarily expelled under Title 42. At this point, further action on MPP and Title 42 is likely to take some time. From the Migration Policy Institute blog, January 27:

[A]ccording to Susan Rice, the White House Domestic Policy Council director, the administration will reopen the border to asylum seekers only “consistent with the capacity to do so safely and to protect public health.” As a result, a controversial federal Centers for Disease Control and Prevention (CDC) order used by the Trump administration to expel nearly all arrivals, including humanitarian ones, at the border is likely to remain in place for some period.

“Processing capacity at the border is not like a light that you can just switch on and off,” Rice told the EFE news agency in December. Biden himself similarly warned in a press conference, “It’s a matter of setting up the guardrails so we can move in the direction,” so the country does not “end up with two million people on our border.”

Justice Delayed…

While one can certainly appreciate the complexity of undoing the damage that Trump did to asylum policy, events this week also point to the need to move quickly.

On Sunday news circulated that two burned-out vans were discovered with the bodies of 19 people inside, near the Mexican border town of Camargo in the state of Tamaulipas. The victims had all been shot, and according to witness statements from a nearby town, were Guatemalan migrants assassinated by a local cartel, an offshoot of the Zetas. Two years ago, the bodies of 24 migrants were found nearby. Mexico remains a dangerous place, with gang violence near the border claiming most of the 35,000 people murdered last year.

Which is to say, people who have been waiting in these areas under the Migrant Protection Protocol for a chance to present their case to a U.S. immigration judge need relief soon – for some it has been two years! 

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Biden and immigration so far…

President Biden has been in office for three days now, and he’s been busy.  On the immigration front, Biden has followed through on his promise to rescind many of Trump’s orders and rules. His administration is also working with congressional leaders on a wide-reaching immigration reform bill to be introduced very soon. Below I summarize actions taken thus far, including:

  • Department of Homeland Security memorandum issued January 20, 2021
  • Department of Homeland Security suspension of Migrant Protection Protocol, January 20, 2021
  • Six different Executive Orders issued on January 20, 2021
  • And the Citizenship Act of 2021, to be introduced any day now

While the list is impressive, it largely involves upending some of Trump’s most unpopular or controversial programs. There is much work left to be done, of course, on protecting asylum, ending immigrant detention, and halting summary expulsions at the border. But not a bad first week!

Department of Homeland Security orders 100-day moratorium on deportations

Department of Homeland Security acting director, David Pekoske, signed a memorandum implementing a 100 day moratorium on most deportations. The moratorium goes into effect today (January 22). During the 100 day moratorium DHS is supposed to engage in a review of its practices and develop recommendations, “to address aspects of immigration enforcement, including policies for prioritizing the use of enforcement personnel, detention space, and removal assets; policies governing the exercise of prosecutorial discretion; policies governing detention; and policies regarding interaction with state and local law enforcement.”

Importantly, the order applies only to people who have a final removal order, and there are further exceptions to this, including empowering DHS general counsel to make individualized assessments to remove people any way. Perhaps more important, at least in terms of numbers, is that people currently being expelled under the March CDC order (“Title 42” expulsions) are not covered by this order. Biden may well issue a subsequent order halting Title 42 expulsions, but I would not expect that soon.

Finally, DHS is instructed to reduce enforcement operations to a few priority areas. From the memorandum:

    1. National security. Individuals who have engaged in or are suspected of terrorism or espionage, or whose apprehension, arrest and/or custody is otherwise necessary to protect the national security of the United States.
    1. Border security. Individuals apprehended at the border or ports of entry while attempting to unlawfully enter the United States on or after November 1, 2020, or who were not physically present in the United States before November 1, 2020.
    1. Public safety. Individuals incarcerated within federal, state, and local prisons and jails released on or after the issuance of this memorandum who have been convicted of an “aggravated felony,” as that term is defined in section 101(a) (43) of the Immigration and Nationality Act at the time of conviction, and are determined to pose a threat to public safety.

Department of Homeland Security suspends Migrant Protection Protocols.

DHS separately suspended new enrollments in the MPP program (or Remain in Mexico program). Under MPP, people seeking asylum in the United States are redirected to await in Mexico for immigration hearings on their cases. The program was a huge debacle, leading to 55,000 people or more sent back into Mexico over the last year or more to wait for a hearing. 

From DHS, “[starting January 21] the Department will cease adding individuals into the program.  However, current COVID-19 non-essential travel restrictions, both at the border and in the region, remain in place at this time.  All current MPP participants should remain where they are, pending further official information from U.S. government officials.”

To be clear, MPP has not ended yet! What the announcement means is that while more people will not be enrolled in MPP for now, no one currently waiting in Mexico is allowed in either pending a hearing. Further, the CDC order effectively blocking asylum claims at the border since March 2020 is still operative. So, asylum is still on hold for most people at the border. All of this will likely change. 

We all expect MPP to be ended – but the administration is clearly waiting until a process can be put into place the manage pending MPP cases, alongside any new asylum claims.

Executive Orders

“Preserving and Fortifying” Deferred Action for Childhood Arrivals (DACA): Executive Order

This order directs departments to take measures necessary to protect and fully implement DACA – which protects from deportation many [not all!] people who were brought into the United States in an unauthorized manner as children. Trump tried to end DACA throughout his president, but was slowed from doing so in the courts. Ultimately it is up to Congress to create a permanent solution and path to permanent residency and citizenship.

Reinstatement of Deferred Enforced Departure for people from Liberia: Executive Order

Deferred Enforced Departure is not the same as Temporary Protected Status (TPS), but in this case operates in a similar way. E.g., given the human rights situation in Liberia, most people currently in the U.S. are protected from deportation proceedings. The DED program was actually put into place after TPS for Liberians was suspended in 2007.

“Proclamation on the Termination Of Emergency With Respect To The Southern Border Of The United States And Redirection Of Funds Diverted To Border Wall Construction” Executive Order

As is clear from the title, with this order Biden is declaring an end to the National Emergency Trump used as a justification to reprogram funds for the construction of the border wall. The order also directs a review of the legality of Trump’s use of re-apportioned funds for wall construction.

“Executive Order on Ensuring a Lawful and Accurate Enumeration and Apportionment Pursuant to the Decennial Census” Executive Order

This order requires all residents of a state to be included in the census count, for the purposes of reapportionment of congressional seats, regardless of citizenship status. 

“Executive Order on the Revision of Civil Immigration Enforcement Policies and Priorities” Executive Order

One of Trump’s first executive orders in January of 2017 expanded immigration enforcement priorities and eliminated administrative restrictions on enforcement actions at schools, hospitals, and places of worship. While the order did not “legislate” new authority, it presented the broadest possible interpretation of authority for ICE enforcement, and essentially placed all unauthorized persons within the United States on an equal footing for removal.

Biden’s order revokes Trump’s earlier executive order, and directs all agencies to review and reassess any new guidance that had been issued under Trump’s order.

“Proclamation on Ending Discriminatory Bans on Entry to The United States” Executive Order

What this does, from New York Times: “In a blow to one of his predecessor’s earliest actions to limit immigration, Mr. Biden has also ended the so-called Muslim ban, which blocked travel to the United States from several predominantly Muslim and African countries. Mr. Biden has directed the State Department to restart visa processing for individuals from the affected countries and to develop ways to address the harm caused to those who were prevented from coming to the United States because of the ban.”

The Citizenship Act of 2021

The Citizenship Act is the Biden administration and Demcratic leadership’s effort toward a comprehensive immigration bill, and, if passed, would mark a huge change for millions of people. The bill includes provisions impacting unauthorized immigrants already living in the United States and revises laws governing authorized immigration. There are also provisions on enforcement and border security, and additional funds to address the root causes of migration in Central America. A 4-page summary of the bill distributed by Biden’s transition team is available here. Vox has done an excellent summary of its various provisions here.

The feature of the bill getting the most attention is the creation of a path to citizenship for those people currently unauthorized to be in the United States. The process would take 8 years for most unauthorized immigrants – faster for DACA and TPS holders. From a bill summary provided to the media by the incoming administration:

The bill allows undocumented individuals to apply for temporary legal status, with the ability to apply for green cards after five years if they pass criminal and national security background checks and pay their taxes. Dreamers, TPS holders, and immigrant farmworkers who meet specific requirements are eligible for green cards immediately under the legislation. After three years, all green card holders who pass additional background checks and demonstrate knowledge of English and U.S. civics can apply to become citizens. Applicants must be physically present in the United States on or before January 1, 2021. The Secretary of the Department of Homeland Security (DHS) may waive the presence requirement for those deported on or after January 20, 2017 who were physically present for at least three years prior to removal for family unity and other humanitarian purposes. Lastly, the bill further recognizes America as a nation of immigrants by changing the word “alien” to “noncitizen” in our immigration laws.

Bob Menendez (D-NJ) will be introducing this legislation into the Senate soon (possibly by the time you read this). Once the legislation is introduced and we have time to read through the devilish details, we will provide a more comprehensive summary of key provisions.

 

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