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Daily Dispatch 10/30/2019: Yes, detention is torture

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Daily Dispatch

October 30, 2019

Cover of Freedom for Immigrants latest report

The United States government regularly engages in behavior that constitutes torture of people it holds within its mammoth carceral infrastructure of prisons and detention centers. There is a reluctance to identify the maltreatment of people imprisoned as torture, either because in popular understanding torture only involves extreme physical pain, or, sadly perhaps more to the point, no matter what the treatment is there is general sense among those on the “outside” that the people incarcerated deserve it. 

In immigration detention facilities torture is practiced daily. 

Torture is defined in the U.S. legal code this way:

“Torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control.

Important aspects of this definition are “intention” and that the person engaging in the conduct is acting under the “color of law.”

We know that immigrant detention is expensive and unnecessary in almost all cases. It serves no useful policy objective, and indeed, is a violation of other policies when practiced against people seeking asylum as is being done on a wide scale today. Detention is practiced by our government, along with other aspects of immigration law, primarily as a deterrent. U.S. officials are very clear about this and have been for a long time. We treat people badly in this country because we think this will discourage others from coming here. 

So, as a matter of policy and practice the U.S. government intentionally makes people suffer while in formal custody in order to serve other objectives. This is torture. The maltreatment of people in detention cannot be dismissed as “incidental to lawful sanctions.” While one might argue that feelings of anxiety and depression are natural side effects of incarceration, and thus incidental to a lawful sanction for crossing the border unauthorized, one cannot seriously argue that prolonged use of solitary confinement, placing people in freezing rooms, denial of mental health services, and other health services, poor food quality, and effective denial of contact with family, friends and even counsel, are incidental to lawful sanctions. Indeed, these practices contravene legal obligations for how people are to be treated.

And yet, Immigration and Customs Enforcement and Customs of Border Protection, principally, and to some degree even the Office of Refugee Resettlement, engage in acts of torture. They create an environment of extreme mental hardship. By their own justifications, they do so intentionally. 

Congressional leadership refuses to sanction this behavior for fear of being viewed as soft on immigration or supporting “open borders.” 

Immigration Detention is Psychological Torture: Strategies for Surviving Our Fight for Freedom

Freedom for Immigrants released a report this week that documents the mental health impacts of incarceration. The report is based on two sources of information. The first is the contact the Freedom for Immigrants (FFI) staff and volunteers have with people who are incarcerated throughout the country. FFI has the largest network of community visitation programs and as a result, organization visitations with tens of thousands of people each year. From this information, and more formal interviews, staff constructed a formal survey that was administered along with in-depth interviews of 40 people in detention, or people formally detained now released.

The report confirms previous findings documenting the mental health impacts of detention. From a summary of findings in the report:

Through in-depth interviews with 40 people impacted by immigration detention including people currently detained, people released, and their families, we learned:

    • 78.6% of surveyed detained individuals expressed missing their loved ones.
    • 32.5% of individuals with spouses, partners, or children reported not being able to have a single visit with their loved ones over the course of their entire time in immigration detention.
    • Survey participants indicated that the emotional strain of detention was much more intense than the physical strain, with 75% of formerly and detained individuals describing the emotional strain as “extreme” and 17.9% describing it as “significant.”
    • Currently and formerly detained individuals expressed that the most stressful factors were ones related to isolation, with the greatest stressors being fear of being transferred or deported, barriers to visiting with family and friends, and barriers to making reasonably priced phone calls.
    • 100% of survey participants indicated that they felt stress, while 82.1% of survey participants shared that they experienced depression and 67.8% experienced anxiety.
    • Headaches or migraines were the most common physiological response to the stressors of detention, with 64.3% of participants suffering from them. This was followed by fatigue with more than one in three (35.7%) individuals experiencing physical and mental exhaustion.
    • Once released from detention, the struggle continues: 57.7% of participants indicated that they did not receive a discharge plan, and 85.7% did not receive a summary of their medical records or referrals to community-based providers. As a result, 78.6% of formerly detained participants have not seen a mental health professional after their release.
    • Over 50% of loved ones surveyed described their emotional strain as “extreme” and their symptoms tended to reflect those of their family inside, with stress (88.9%), depression (66.7%), loneliness (66.7%), headaches/migraines (66.7%), anxiety (44.5%), insomnia (44.5%), fatigue (44.5%) and high blood pressure (44.5%) listed as the common ones.

What is different about this report from others – patterns of abuse are very well documented! – is the final section which profiles community health solutions to help people grapple with the aftermath of detention and torture. Community responses include expanding one-on-one communication with people in detention through volunteer hotlines and visitation. Solidarity newsletters, or venues where people can tell their stories. Freedom for Immigrants newsletter is call IMMPrint and can be read here. A final strategy discussed is building mutual support groups of detention survivors. The full report can be read here!

Support HR 2415: Dignity for Detained Immigrants Act

Because of conditions like those discussed above, we are supporting the Dignity for Detained Immigrants Act, which we detail more here – but in essence creates an enforceable framework of accountability and oversight, while also phasing out the use of private contractors and other subsidiary detention sites. Please take action today, by asking your member of Congress to co-sponsor.

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Daily Dispatch 10/29/2019: Who guards the….

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October 29, 2019

The Trump administration unilaterally rewrote asylum rules through an executive order in September. The administration declared that no one would be permitted to apply for asylum in the United States if they crossed through another country first, unless they had attempted to get asylum in that third country and been denied. Effectively, this means that no one can apply for asylum at the U.S. southern border unless they are from Mexico, or applied for asylum in Mexico and were denied.

The rule is being challenged in court. However, an effort to get an injunction against the rule, while legal proceedings are underway, failed. So, Trump is moving forward – but not simply with the new rule. The administration is piloting a program to expedite removals at the border; a program that grants extensive powers to border patrol agents and effectively denies immigrants access to counsel. From CBS News:

According to a Homeland Security official, the pilot program in the El Paso sector is a “whole of government approach” to expedite the processing of single migrant men and migrant families subject to a regulation allowed by the Supreme Court last month that renders most non-Mexican migrants ineligible for asylum when they reach the U.S.

The existence of the pilot program was first reported by The Washington Post. 

The Department of Homeland Security has not publicly revealed specifics about how the secretive program is operating, but El Paso-based immigration lawyers who’ve found out about it say it denies migrants due process, restricts access to counsel and effectively ensures their prompt deportation.

According to the attorneys, migrants subject to the pilot initiative, which they believe began this month, are not placed in the Migrant Protection Protocols (MPP) program, another experimental and controversial policy the administration implemented in late 2018. The program, also referred to as “Remain in Mexico,” has required more than 55,000 asylum seekers to wait in Mexico for the duration of their court proceedings.  

Instead, the attorneys say, these asylum-seeking migrants encountered along the El Paso sector are detained by Customs and Border Protection (CBP) agents and quickly given a fear of persecution screening while in the agency’s custody. 

The policy is a departure from previous procedures because asylum seekers not returned to Mexico were typically detained by Border Patrol for a few days or weeks and then transferred to Immigration and Customs Enforcement (ICE) detention centers, where they would undergo what is called “credible fear” interviews that are overseen by asylum officers. 

Lawyers have been typically granted access to clients in ICE facilities to offer them advice before the interviews, but under the pilot program, they are not allowed to see and speak to their clients, who are detained in a Border Patrol station. Detained migrants can request phone calls, but lawyers are not allowed to call their clients in detention.

Every now and then I check the interwebs to make sure we still have a congress. As of today, we do. What are they doing exactly?

Who guards the guardians when…wait, who are the guardians anyway…

Trump does not like to be told he’s wrong, or what to do, or how to make improvements, or really anything accept “well done” and “that’s huge.” One result is that his cabinet is a mess – and a further result is that no one in charge of anything to do with immigration has been through a confirmation for the position they are currently holding. Trump has said he “likes acting” directors, because he can move them around at will. The problem, is this another example of the incredible lack of accountability in this administration. With the news that yet another DHS official has left (Julie Kirchner, formerly with FAIR – an anti-immigrant hate group, yeah that group) I thought it would be worth a quick round up of who is actually doing stuff on immigration. As you can see, not a single person in a director position is a confirmed, permanent staff. 

Department of Homeland Security Secretary (acting), Kevin K. McAleenan | Secretary’s Corner

Deputy Secretary (vacant), David P. Pekoske, Senior Official Performing the Duties of the Deputy Secretary

Chief of Staff (acting), Brandon Wales

Executive Secretary (acting), Juliana Blackwell

General Counsel (acting), Joseph B. Maher

Director, U.S. Citizenship and Immigration Services (acting), Ken Cuccinelli

Deputy Director, U.S. Citizenship and Immigration Services, Mark Koumans

Commissioner, U.S. Customs and Border Protection, Kevin K. McAleenan (currently serving as Acting Secretary, Department of Homeland Security)

Chief Operating Officer and Senior Official Performing the Duties of the Commissioner, U.S. Customs and Border Protection, Mark A. Morgan

Deputy Commissioner, U.S. Customs and Border Protection, Robert E. Perez

Director, U.S. Immigration and Customs Enforcement (ICE), (vacant), Matthew T. Albence (Deputy Director), Senior Official Performing the Duties of the Director, U.S. Immigration and Customs Enforcement


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Daily Dispatch 10/28/2019

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Daily Dispatch

October 28, 2019

Trump policies clogging courts

If you are awaiting a hearing date in Arlington, Virginia’s immigration court, you will not get in before December 18, 2023. In Chicago or Houston? December 20, 2023. Yes, immigration courts are so backed up with cases that in the largest districts, wait times for court dates are 4 years and growing:

The Arlington court exemplifies the rising backlog and wait times. At the end of April 2017 there were 28,272 pending active cases. This grew to 32,012 at the end of May 2018, and grew further still to 39,131 as of the end of September 2019. Projected average wait times have increased from 1,165 days in April 2017 to 1,400 days in May 2018, and finally to 1,607 days – or 4.4 years – in September 2019. Hearings are being scheduled as far out as December 18, 2023.

Why the backlog? It is NOT the result of people seeking asylum from Central America. The numbers seeking asylum have increased to be sure, but the backlog in immigration courts is primarily the result of Trump administration policies.

While many sources for this rise are outside the court’s control, policy decisions and practices by the Department of Justice which oversees the Immigration Court have significantly contributed to growing caseloads. For example, additional cases were added to the pending backlog when the Trump Administration decided to “open” many hundreds of thousands previously “closed” cases. Many of these cases have not yet been calendared so they don’t show up on court backlog records. When the 322,535 cases that remain to be calendared are added, the current backlog climbs from 542,411 at the start of the Trump Administration to 1,346,302 cases today – a whopping 148 percent increase. (Emphasis added)

The decision to reopen previously closed cases has single-handedly exacerbated the immigration court crisis, yet it has not received sufficient attention. This single policy decision has caused a much greater increase in the court’s backlog than have all currently pending cases from families and individuals arrested along the southwest border seeking asylum.

There are a reported 214,855 of these cases that originated through credible fear claims now pending before the court. Those who arrived during the recent months of the Trump Administration represent only part of this total. Despite the intense public focus on asylum cases originating at the U.S.-Mexico border in recent months, their contribution to the immigration court backlog is clearly substantially fewer than the untold number of cases put back into the judges’ workload when the current administration decided to unilaterally reopen long- closed cases.

The backlog also means that immigration judges have a huge caseload. If one includes all cases pending before the system (including reopened cases not yet calendarized) the backlog is over 3,000 cases a judge. So, even if no new cases come in, at the current “quota” of 700 cases a year the administration expects judges to clear, it would take 4.4 years for judges to catch up. The Transactional Records Access Clearinghouse at Syracuse University has the full report here.

Trump administration makes it even harder for poorer immigrants

The application fee for citizenship is currently $1,225. To get a green card, it is $775. While about the same price as a toilet fixture at Trump’s house, for most other people, that is a lot of money. USCIC has had a program for many years that allowed people to get a waiver of these fees if they also received some form of public assistance. The logic is simple, if already qualified for a means tested program, there should be no need to reapply to get the fee waived.

USCIS just ended that program. As a result, about two-thirds of the people who receive the waiver today will likely not be able to qualify now. Or, at least, the process has been made much more difficult. Under a new rule, even people who take part in means tested programs will have to apply separately to demonstrate financial need. This will, of course, extend the process, costing the government more money in processing. But it will also make it that much harder for some immigrants to apply for citizenship or permanent residence – and that is of course the goal. From Vox:

“Once again, the administration is using every lever it can find to restrict legal immigration,” Doug Rand, a former White House official who worked on immigration issues in the Obama administration, said in a statement. “The obvious purpose of this latest action is to make it more difficult for low-income green card holders to apply for U.S. citizenship, in a way that sidesteps the typical rule-making process where [the administration] has been so often frustrated in court.”

It’s one of several policies the Trump administration has pursued recently targeting low-income immigrants. The same article in Vox provides a good summary of these measures.

The administration’s “public charge” rule, published in August and recently blocked in federal court, would have given immigration officials much more leeway to turn away immigrants applying to enter the U.S., extend their visa or convert their temporary immigration status on the basis that they are likely to end up depending on public benefits. Researchers estimated it could have affected more than 382,000 people.

President Donald Trump issued a proclamation earlier this month barring immigrants who do not have health insurance and cannot afford to pay medical care costs from getting visas of almost any kind to enter the U.S.

And he issued another executive order in September allowing states that do not have the resources to support refugees in becoming “self-sufficient and free from long-term dependence on public assistance” to turn them away.

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Daily Dispatch 10/25/2019: And justice for…?

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Daily Dispatch

October 25, 2019

From NPR: Attorney General William Barr speaks at an event in Washington earlier this month. On Monday, he issued a proposed rule seeking to allow the federal government collect DNA samples from more than 740,000 immigrants every year.
Jacquelyn Martin/AP

The Justice Department’s new DNA rule

This week, Attorney General Willia Barr announced a new rule to allow for DNA testing of hundreds of thousands of immigrants. From NPR:

The Justice Department is proposing to begin collecting DNA samples from hundreds of thousands of immigrants crossing the border, creating an enormous database of asylum-seekers and other migrants that federal officials say will be used to help authorities fight crime.

Attorney General William Barr issued the rule, which is set to be published in the Federal Register on Tuesday, with the expectation that federal authorities will gather DNA information on about 748,000 immigrants annually, including asylum-seekers presenting themselves at legal ports of entries.

In the proposed regulation, Barr describes the DNA sample as a “genetic fingerprint” that can uniquely identify a person, “but they do not disclose the individual’s traits, disorders, or dispositions.”

Legal permanent residents and those seeking to enter the country legally won’t be affected by the new regulation. The rule will now be subject to a 20-day comment period.

What the new rule actually does is remove a provision of current law, The DNA Fingerprint Act of 2005, that allowed the Department of Homeland Security to waive requirements to collect DNA samples from certain classes of immigrants. Only the Attorney General can waive collection now. What this means is that virtually anyone detained by the U.S. government will be subject to DNA screening.

This summer we wrote about a pilot program investigating the feasibility of doing testing on such a large scale. The original program was used on select families and pitched as a means to verify if children were actually related to the people claiming to be family members. ANDE Corporation is the company that makes the Rapid DNA test that was used. It is not clear if this is the same test now being proposed for general use. But someone is going to make a lot of money on this new rule. The U.S. will detain close to a million people this year for some amount of time.

Silencing Immigration Judges and ICE officials

The Trump administration’s evolving immigration program is, among other things, the least transparent policy area we have – even as it is maybe the most talked about one. Among the many ways that this administration gets in the way of restricting access to information about what is actually happening in courts and in detention facilities is to silence immigration judges and other ICE officials. Four law professors have written about this in Slate:

When we’ve asked judges, ICE attorneys, and asylum officers to visit our classes, almost all have declined. They’ve told us they can’t speak with our classes even on their days off, even in their personal capacities, without prior clearance and approval from high-level supervisors—approval that is increasingly difficult to obtain. This silencing of line officers is a marked departure from past years. It is taking place across the country, and it is no coincidence. The administration has denied these civil servants permission to speak publicly. According to former immigration judge Jeffrey Chase, immigration judges “are not even allowed to speak at conferences or law schools, because the administration does not consider them qualified to speak on behalf of the agency or its policies.”

In relation to judges specifically, the implications are more alarming:

Since President Donald Trump took office, the jobs of immigration judges have become increasingly arduous and influenced by the president’s agenda. New immigration judges have been told in trainings that they are not just judges because they are “employees of the United States Department of Justice.” Essentially, they are being told to act as prosecutors in judges’ robes in a system that does not offer immigrants—even children—the right to counsel. They are under immense pressure to deny and deport immigrants quickly, in spite of constitutional due process requirements and the potential merit of their cases.

None of this is an accident: Judges and asylum officers are being instructed to decide cases in ways that many contend are contrary to law. A virtual gag rule has been placed on them in the context of law schools and the broader public. This denies information to coming generations of lawyers and eliminates public discourse on some of the most critical civil rights issues of our time. Decertification of the judges’ union would disempower adjudicators even more. The current campaign to dismantle independent decision-making and legal interpretation in the asylum system, and in our immigration courts generally, will carry consequences well beyond this administration’s lifespan. Free speech, especially by civil servants, is fundamental to a healthy democracy. Suppression of such free speech tilts us closer to an authoritarian state

Preview of Coming Article on Legal Implications of Family Separation

Legal scholars Carrie Cordero, Heidi Li Feldman and Chimène Keitner published a precis of an upcoming article that will appear in the Columbia Human Rights Review on the legality of the Trump administration’s family separation policy. From the preview:

While prior presidential administrations have certainly struggled with periodic migration and border security challenges, officials in the Trump administration revived a controversial proposal that had been considered briefly during the Obama administration, but quickly shelved as “too opprobrious and unpalatable.” Once implemented last year, the early effects of the family separation policy and practice were swift, and devastating: Children were separated from their parents or family members at the border as a consequence of a new prosecutive guideline from the Justice Department. Parents were given little or no information about where the children were relocated to, or when, if ever, the families would be reunited. While statistics available as of early fall 2019 indicate that over 4,000 children were separated from their parents at the southern border, the numbers continue to go up, including new information from the ACLU that more “tender age” children were separated than previously disclosed. It took advocacy litigation and a court order to begin the process of reunification, a process that continues even today.

As far as we know, until 2018, the U.S. government had not previously implemented a policy and practice of intentionally separating migrant and asylum-seeking families as a means of deterrence. 

As we have written about, the practice of family separation did not begin with Trump. What was at stake last year was the expansion and intentional use of family separation as a deterrent to migration. It was a frankly deplorable development, but one Trump’s team argued rested on legal foundation. The authors take issue with this.

Comprehensively assessing the law against family separation is a complex undertaking. The underlying practice—deliberate, harsh, and large-scale family separation as a deterrent to migration—is unparalleled in U.S. history, so it is not necessarily obvious which bodies of law apply, and how. As it turns out, many types of law prohibit this practice, though some could use bolstering by congressional action. Our article, therefore, is a broad survey of applicable areas of law with concrete discussion of how to use it. We look at an expansive range of currently applicable law, consider the viability of different specific legal approaches, and make an initial effort to identify the kind of federal legislation that could address the Trump administration’s family separation policies and practice beyond the important and consequential litigation that has already been brought. Lawyers, lawmakers, policy experts and citizens must work together to ensure that legitimate immigration law and border security enforcement objectives are achieved without resorting to policies and practices that lack sound legal grounding and take place at severe costs to the most vulnerable among us. 

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Rubio’s Double Speak on Haiti and Nicaragua

People are in the street calling for the resignation of their president. The police are using excessive force; in the last three weeks at least 17 people have died in protests. Over the last 15 months of recurring demonstrations, close to 100 people have died. In November 2017, a government-affiliated gang massacred dozens of people in the home town of a leading opposition figure. This is not Nicaragua or Venezuela, but Haiti. The United States government steps up to the mic and says, what? 

Cue Marco Rubio:

That’s an internal matter for Haitians to decide. I don’t think it’s the proper job of the United States to call on a democratically elected leader to step down. That would be interference. Just like it would be wrong for the U.S. to step up and say he should stay.”

Before I write another word, I’d like to just note that this may be one of the few things Rubio has ever said that I agree with. It is just…how to say this…really hard to take seriously, especially coming from this guy. Earlier this year, Rubio threatened a coup d’etat against Maduro in Venezuela, saying of Maduro’s efforts to resist the U.S. installation of Juan Guaidó as interim leader:

“He’s picked a battle he can’t win,” Mr. Rubio, 47, said of Mr. Maduro in an interview on Friday. “It’s just a matter of time. The only thing we don’t know is how long it will take — and whether it will be peaceful or bloody.

Rubio also joined the chorus of neocons in the U.S. congress and their erstwhile “left” allies, in demanding Ortega’s ouster from Nicaragua’s presidency last year. Rubio was practically Trumpesque in use of Twitter, being very active but repeatedly getting reports wrong. E.g. His July 13 Tweet last year when he reported that “Ortega Thugs” were burning the National Autonomous University of Nicaragua (UNAN). Buildings at the UNAN were set on fire that day – by opposition groups retreating into the UNAN after firing on an FSLN caravan (see pages 34-37 of linked article) taking part in the repligue (celebration of the Sandinista’s strategic retreat to Masaya in 1979 during the insurrection). Members of this opposition group shot and wounded 10 people. The resulting stand-off over night led to gunfire exchanged between police and opposition groups that had blockaded the university, some of whom had taken refuge in a church. The police response seemed excessive, at least as reported. But as was the case for most of last year’s international coverage of the crisis, what the police were actually responding to was never discussed. In the morning, most were allowed to leave the church. Once the area was cleared, stores of weapons were found on the campus, another detail rarely reported outside of Nicaragua. Certainly Rubio never got it right. Nevertheless he put Ortega “on notice,” and offered his support to opposition leaders (at least those wealthy and or connected enough to get to D.C.).

In Haiti, where Rubio has also applied pressure – pressure to cut ties with Venezuela and not to cut ties with Taiwan – all he can muster is some version of “not our fight.” The contrast is frustratingly familiar, but frustrating nonetheless. In reality, Moïse would not even be president were it not for U.S. interference in the election process in Haiti. 

The distinction Rubio would likely make is that Ortega and Maduro were not “democratically” elected. In fact, the only distinction between elections in Haiti, Nicaragua and Venezuela, all of which were subjected to heavy U.S. interference, is that in Haiti the “right guy” (i.e., the U.S.-backed candidate) won  – the same guy half the country is in the streets today trying to remove from power. The “right guy winning” is what “democratically-elected” means in the U.S. foreign policy lexicon. As far as electoral processes go, arguably Nicaragua and Venezuela’s elections were cleaner. Certainly the OAS statement on Nicaragua’s 2017 elections offered critique, but noted that the problem areas they identified would not have changed the outcome. Meanwhile, Haiti’s election had numerous procedural issues, and by the time the final election occurred, was largely boycotted.

In an ideal world, the protection of human rights would never be simply “an internal matter,” but a multilateral commitment with the force of international law. However, as it stands, human rights advocacy is practiced almost exclusively as an expression of institutional interests and partisan framing. Which means it is not about human rights at all, but the use of human rights in service to other agendas.

The never ending doublespeak from Rubio and other policymakers, agencies like the UN, and even some human rights organizations, ensures universal protection of human rights never happens. Ortega will never have to face a meaningful, objective panel to answer questions concerning possible crimes committed under his watch, because the U.S. has made sure no such place exists. And so, of course, neither will Moïse, much less Hernández in Honduras, or Donald Trump, whose human rights record is arguably the worst, given its global reach. 

The U.S. should NOT intervene, but in Haiti’s case the U.S. has never stopped – not since 1804. So Rubio’s words are simply more of the typical, vacuous phrases intended to deflect responsibility we have come to expect from U.S. policymakers. Rather than just yawn, however, we need to understand that the consequences of such posturing are significant.

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Daily Dispatch 10/24/2019: Survival migration and regional cooperation

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Daily Dispatch

October 24, 2019

On the road again: a caravan of migrants from Arriaga, Mexico, October 2018
Ueslei Marcelino / Reuters

Yesterday we highlighted a few themes somewhat unique to the U.S. political context – the rise of Trump’s “brand” on immigration as documented by Frontline’s “Zero Tolerance” program, and we also looked at the backlash to Trump among newly naturalized citizens, a group increasing far faster than new immigrants. Today, we step back a bit and try to place this in a more global context.

The new edition of Foreign Affairs includes an interesting article that compares the migration “crisis” in Europe in 2015 with the current spike in refugees migrating from Central America and the dramatic increase in Venezuelans fleeing their country (nearly 4 million refugees), a situation mostly impacting neighboring countries Colombia and Peru, but with clear regional implications.

The European and American crises are alike in a number of ways. The total number of people apprehended at the U.S. border or deemed inadmissible at a U.S. port of entry since October 2018 is now nearly the same as the number of asylum seekers who arrived in Europe in the whole of 2015. Observers on both sides of the Atlantic have also stumbled on eerily similar scenes. The widely published photograph of the bodies of Óscar Martínez and his 23-month-old daughter, Valeria, who drowned while attempting to cross the Rio Grande in June, resembles the picture of Alan Kurdi, a Syrian toddler who drowned while trying to cross the Mediterranean in 2015. Both images have come to symbolize the awful toll of transnational migration in a world of closed borders.

The effects of migration on the European and American political systems are likewise comparable. The rhetoric of xenophobic right-wing figures in the United States echoes—and, in some cases, draws on—the pronouncements of their European counterparts. In Europe, such rhetoric fueled anti-immigrant sentiment and encouraged support for right-wing parties. It has had similar effects in the United States, where rising xenophobia has underwritten the Trump administration’s punitive approach to migrants.

The author, Alexander Betts, draws some interesting parallels between the European response in 2015 to 1.2 million refugees fleeing a variety of conflicts trying to gain entry to the response to migrants from Central America and Venezuela. The initial response was ad hoc, each country approaching things differently. Germany opened its borders. Hungary shut them. However, eventually a regional response emerged. I disagree with Betts about the effectiveness of those strategies. For example, the agreement with Turkey to resettle asylum seekers, for example, has not proven to be sustainable (as he notes), and the EU’s use of Libya as a holding ground for asylum seekers, most trapped in camps in horrible conditions, emerged from EU coordination to offshore efforts with questionable results. These responses did, however, lead to a decline in migration to Europe – which was the goal.

Betts point, however, is not that the EU model should be followed, simply that the principal of regional cooperation needs to be elevated in the discussion about the migration crisis in the Americas. On this front there is an interesting discussion about earlier efforts to grapple with regional refugee flows from Central America in the early 1990s, specifically the International Conference on Central American Refugees (CIREFCA). This agreement provided funding to help people return to their home country, to housing and/or work opportunities, as well as funds for projects to help refugees not returning home, to integrate into their new communities. From Betts perspective a similar program could be launched today under the recently passed Global Compact on Refugees, which encourages, among other things, regional programs that bring together governments, non-governmental organizations and other stakeholders with the international donor community to craft solutions that will help people relocate safely.

There are two items I want to lift up from this discussion. The first, is Betts concept of “survival migrants” is an important insight. Unfortunately, much of the discussion of refugees versus asylum seekers is caught up in near 70 years old Cold War language about people fleeing authoritarian governments, amended later to include people fleeing religious and ethnic conflicts. The traditional categories of refugees still exist of course. However, increasingly people are fleeing unstable economies, climate disaster, and non-state violence. People are fleeing as a survival mechanism, and their reasons do not always map with traditional legal categories. As we know, in the U.S. the Trump administration has sought to restrict the basis for valid asylum claims to traditional categories, moving backwards rather than forward.

The second item I would lift up from Bett’s analysis is more critical, however. And that is the failure to address, even in passing, the fundamental responsibility the United States and Europe have to address – and fund – solutions to these refugee crises because they helped create them in the first place through war, intervention, and economic pillage. I believe the call for regional initiative and multilateral solutions is crucially important. But it is also the case, as we saw in Europe, that these processes become a means to address the concerns of receiving countries, especially wealthier receiving countries, without adequately addressing causes of migration. 

That states should address those causes and create “anchors” instead of walls, in Betts term, are well taken. But will they? Democratizing the multilateral for where these discussions take place would seem a necessary parallel movement to any cooperative solution on migration and many other issues. Otherwise the interests of the U.S. and Europe will overshadow truly cooperative, regional or inter-regional initiatives.

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Daily Dispatch 10/23/2019: New Frontline documentary “Zero Tolerance” and other updates

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Daily Dispatch

October 23, 2019

“Zero Tolerance”

Last night Frontline aired a fascinating documentary on the roots of Trump’s immigration policies, and the particular way, as a candidate and as president, he has tapped into resentment about immigration in order to transform the Republican Party. The story, of course, does not start with Trump, but with Steve Bannon, Stephen Miller and Jeff Sessions meeting at Bannon’s place to discuss how to kill a bipartisan immigration bill negotiated in 2012. They decide to go after the Republican Speaker of the House, Eric Kantur, who was facing a primary challenge. The drumbeat that Kantur was soft on immigration and selling out his constituents worked. Kantur became the first sitting Speaker to lose a primary. As a result other Republicans fled from the bipartisan bill, and it never made it out of the House. They then went looking for a presidential candidate. In Trump this group found an “imperfect” but effective vehicle for their message, and they all joined in to support his candidacy. As we know, their messaging worked, leading them all to take leadership roles in the administration once Trump took office – though only Miller remains.

You can watch the full documentary here. Keep a bucket close by, just in case…

Accompanying the documentary are additional resources, including this helpful summary of major immigration policy changes under the Trump administration.


If you get through the Frontline documentary and feel down about how Trump’s rhetoric has seemed to transform the electoral landscape, there is some good news. There is an enormous backlash to his policies. And not surprisingly, much of this is coming from immigrants. Naturalized citizens cast 8 percent of the ballots in 2018 midterms, and more are registering. Indeed, even as new arrivals are falling off, naturalizations are increasing, as immigrants that have been here for years are seeking citizenship for both security and so they can vote. From the LA Times:

Surveys show that many of the new citizens are liberal-leaning, which is one of several demographic trends helping put some historically red states such as Texas, Arizona and Georgia closer to Democrats’ reach.

The gains in immigrants’ electoral strength have been gradual. But Trump’s anti-immigration policies may be accelerating the trend by spurring even more people to naturalize and to vote, worrying some moderate Republican experts.

“It’s not ‘bad-ish’ news. It’s extremely bad,” said Mike Madrid, a Sacramento-based GOP consultant who studies Latino voters. He thinks the party’s use of anti-immigrant rhetoric to mobilize non-college-educated white voters will come at a steep electoral price. “This is a five-alarm fire.”

Another study issued this week by Brookings shows that many new immigrants are moving to traditionally strong GOP states – even though overall numbers of new arrivals are down this year. 

Environmental costs of border enforcement strategies

Sierra, the magazine of the Sierra Club, ran an article Monday about the environmental destruction that has been wrought over the last twenty years of immigration enforcement efforts along the border with Mexico. The wall being simply the latest – as ground clearing operations proceed and destroy fragile ecosystems. Much of the destruction in Arizona, the focus of the article, has been caused by Border Patrol creating a dense network of tracks through the Cabeza Prieta National Park. An excerpt below, you can read the full article here.

A 2011 [Fish and Wildlife Service] report documented nearly 8,000 miles of roads created by Border Patrol agents and smugglers within Cabeza Prieta during the previous decade (traffic by smugglers has declined dramatically since the construction of vehicle barriers along the border in 2007 and 2008). The authors, who analyzed satellite data, noted that Border Patrol was responsible for “the greater proportion” of new roads and trails, which had created a “seemingly incalculable” web across the landscape. Meanwhile, in Organ Pipe, according to a recent NPS assessment of the park’s wilderness character, Border Patrol officers reported driving almost 17,000 miles through wilderness lands in 2015 alone. 

But even those figures might be vastly underestimating Border Patrol’s impact. According to Sue Rutman, a botanist who worked at Organ Pipe from 1994 to 2013, the Park Service secretly monitored Border Patrol for several years to determine if the agency was faithfully documenting off-road use of wilderness areas as required by the 2006 agreement. Rutman said a Park Service analysis found that Border Patrol only filed reports about 25 percent of the time. 

“There was a total lack of respect for the park and its resources,” Rutman said.

In a written statement, Border Patrol said that several hundred miles of unauthorized vehicle routes have been created in Organ Pipe “due to cross-border illegal activities.” The agency said that it does not track the exact miles traveled by border agents in wilderness areas. 

Trump’s border wall represents the latest threat to the desert wilderness. Under the 2005 Real ID Act, part of the post-9/11 expansion of the national security state, DHS was given carte blanche to waive any laws that would interfere with efforts to secure the border. This is why the Trump administration was able to sidestep dozens of environmental laws, including the Wilderness Act and the National Environmental Policy Act, to move forward with constructing a 30-foot-tall impermeable barrier in parts of Cabeza Prieta and Organ Pipe. 

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Daily Dispatch 10/22/2019: TPS for Haiti cancelled based on faulty data

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Daily Dispatch

October 22, 2019

Trinidad Paul at her home in Village Philadelphie, an informal settlement north of Port-au-Prince, on Nov. 11, 2018. Photo: Marie Arago for Type Investigations (from original Intercept article here.)

In the Intercept today is an excellent article from Isabel MacDonald that focuses on the Trump administration’s use of data from the International Office on Migration’s Displacement Tracking Matrix to justify ending Temporary Protected Status for Haitians. The primary focus of the article is IOM’s tracking of people registered as Internally Displaced Persons, and living in camps following the 2010 earthquake. The Trump administration’s primary data point in arguing for ending TPS for Haitians is the 96 percent decline in the number of people living in camps. There is a lot that could be said about using such a narrow framework for deciding TPS. However, this metric is particularly problematic. As developed in Haiti, this matrix does not account for the number of people who died in camps, who were forcibly displaced from camps, nor does it account for the reality that most who left the camps are still in unsafe, inadequate housing.

The Trump administration’s decision to end TPS for Haitians came in the context of a series of decisions not to extend TPS for other countries as well, including El Salvador. The decision to not extend TPS for these countries has led to a number of court challenges. Four of these suits include Haiti. The basis for the suits is that the Trump administration sought to end TPS for political reasons and thus failed to adequately assess the real existing situations in each country. From MacDonald’s article:

Given that many Haitians continue to lack access to clean drinking water, quality medical care, and proper waste disposal services, deadly water-borne diseases like cholera remain a major risk. Since 2010, more than 9,700 Haitians have died from cholera, and 819,000 have contracted the disease. Moreover, cholera has become endemic in Haiti, according to Doctors Without Borders. While suspected new cholera cases have declined significantly since the height of the epidemic in 2011, the U.N. has warned that Haiti remains “extremely vulnerable” to the disease. The U.S. Agency for International Development has also documented growing food insecurity in the country.

For these reasons, USCIS researchers determined that Haiti continued to meet the conditions for TPS when the country’s designation came up for renewal in 2017. As the authors of an internal USCIS report emphasized that October, “Many of the conditions prompting the original January 2010 TPS designation persist, and the country remains vulnerable to external shocks and internal fragility.”

Nevertheless, the Department of Homeland Security determined to end TPS for Haiti:

However, the following month, DHS terminated Haiti’s TPS designation. In a press release announcing the decision, Duke, then-acting DHS secretary, claimed, “The extraordinary but temporary conditions caused by the 2010 earthquake no longer exist.” The very first data point Duke cited to support this claim was the decrease IOM counted in the number of Haitians living in IDP camps — from which at least 60,500 were evicted, and where an untold number died.

While IOM began developing its data collection system in Iraq, Loprete explained that “Haiti was always sort of a pilot or pioneer for this tool,” noting, “We can use it of course for other disasters.”

Already, IOM is using the Displacement Tracking Matrix to monitor people displaced by disasters in Yemen, El Salvador, Honduras, the Democratic Republic of Congo, Sudan, and Somalia. The agency has also promoted the system as an important tool for tracking populations displaced by the climate crisis. IOM describes it as a service that “plays an essential role in providing primary data and information on displacement” to humanitarian agencies and governments and thus helps them to “deliver services and respond to needs in a timely manner.”

Yet the central role that the Displacement Tracking Matrix has played in the Trump administration’s official rationale for terminating Haitians’ eligibility for TPS also suggests that the tool may contribute to underestimating the impact of disasters, whether earthquakes, wars, or climate change. By failing to track deaths, while ignoring the fate of displaced people who end up in informal settlements with higher risks and fewer services than IDP camps themselves, this tool risks producing highly distorted data that downplays the scale and severity of contemporary crises of displacement. Such a flawed system of data collection may be convenient for governments “fishing for reasons,” in Judge Kuntz’s words, to close their borders to asylum-seekers. But it also has the potential to undermine humanitarian responses that are urgently needed at a time when more than 70 million people are forcibly displaced around the world, more than at any time in recorded history.

MacDonald’s full article can be read here. It provides well researched detail on the evolution of the situation of people living in camps after the earthquake. Among the findings, are trends we reported on back in 2012-13 as part of the Under Tents Campaign, then coordinated by Other Worlds, that Martelly was pushing agencies to undercount the number of people still living in camps precisely to demonstrate “progress” that was not very real. We can see now that the impact of that data framing continues to have an impact. 

There are still 35,000 registered IDPs in Haiti, and nearly 200,000 people – not counted as IDPs – living in conditions much the same, and in some cases, worse than the camps.

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Daily Dispatch 10/21/2019: Atlas Yawned

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Daily Dispatch

October 21, 2019

There is an interesting article in Forbes today about the hurdles that U.S. Citizenship and Immigration Services has put in place to limit authorized immigration to the United States. For Republicans it is an interesting space to be in (or would be if they actually believed the free market pablum they espouse). They are defending an administration that is over-spending its budget to put in place layer upon layer of red tape that gets in the way, not just of people coming to the U.S., but of U.S. companies making money from those people. From Stuart Anderson at Forbes:

In a new press release, USCIS Acting Director Ken Cuccinelli boasted that the Trump administration has increased red tape and bureaucracy for U.S. companies. It’s the latest example of administration officials lauding efforts to make it more difficult for employers to obtain what economists often consider to be a company’s most valuable resource – talent.

Since 2017, Trump administration policies have focused on restricting the entry of immigrants and foreign nationals, including scientists and engineers. “Denial rates for new H-1B petitions have increased significantly, rising from 6% in FY 2015 to 32% in the first quarter of FY 2019,” according to a National Foundation for American Policy analysis

In addition, expensive and time-consuming Requests for Evidence (RFEs) reached an unprecedented level of 60% in the FY 2019 first quarter. The percentage of completed H-1B cases with a Request for Evidence has doubled between FY 2016 and FY 2019. Many companies have resorted to lawsuits in federal court against USCIS to gain approvals for employees they have identified as valuable.

However, Ken Cuccinelli and USCIS describe the increased bureaucracy facing businesses in positive terms and the fulfillment of a mission. “Consistent with President Trump’s call for enhanced vetting, USCIS plays a key role in safeguarding our nation’s immigration system and making sure that only those who are eligible for a benefit receive it,” according to the October 16, 2019, press release…

Anderson goes on to break down the many ways the USCIS has made it more difficult and expensive, in time and fees, for people to come to the United States to work. And, of course, this means less business being done from people coming to the United States.

Research by Britta Glennon, an assistant professor at the Wharton School of Business at the University of Pennsylvania, found the types of government restrictions applauded by the acting director of USCIS are not good for America. Glennon found H-1B visa restrictions carry the unintended consequence of pushing jobs outside the United States and lead to less innovation in America. “In short, restrictive H-1B policies could not only be exporting more jobs and businesses to countries like Canada, but they also could be making the U.S.’s innovative capacity fall behind,” concluded Glennon.

In a world flipped upside down (again, not really, just our perceptions of parties and their ideologies), the Democrats tried to run to the defense of tech companies and secure a bill (passed in the House) that would eliminate country caps for visas. From CSNBC

The Fairness for High-Skilled Immigrants act passed the House in September by a vote of 365-65 and now needs to be passed in the Senate and approved by the president before it goes into effect. It’s been referred to the Senate Judiciary committee but no vote is scheduled.

The legislation, if passed, would substantially change the current immigration system by eliminating a per-country cap that advocates say effectively makes it harder to immigrate from a bigger country versus a smaller country. Many migrants with visas face long backlogs to get permission to permanently immigrate, called a green card.

“We have over 300 folks here on DACA, and we have several people that are on H-1Bs [visas] that might be deep in the green-card backlog,” Cook said in a speech last summer.

The bill aims to equalize wait times across countries by changing the system to first-come first-served. According to the Cato Institute, a substantial portion of immigrants stuck in the backlog are skilled immigrants from China and India.

The bill actually passed the House with significant GOP support, and on the Senate side, its lead co-sponsor is a Republican. Nevertheless, the debate has gotten contentious. What would it mean to remove country caps? Under the current system, Norway and China have the same “quota.”  The difference is, there are alot of people from China trying to get here, not so many from Norway (much to Trump’s chagrin). Wait times are significant for Chinese and Indian immigrants (also for folks from Mexico and the Philippines). In a free market for workers, there would be no caps, and workers would come to the U.S. as needed. But there is no free market for anything, much less labor, and Republicans are not trying to create one.

The Fairness for High Skilled Immigrant Act would not increase the total number of green cards issued each year. Removing caps, without increasing the number of green cards, would mean that tech companies could crowd out other industries dependent on immigrant labor. In the southern United States, that is health care. And so, the bill is creating tensions across the GOP based on regional interests and is also dividing would be supporters from the Democratic party because there would be no overall increase in the number of green cards in the Senate version. 

So, it may not go anywhere. 

This is not a great bill by any stretch, and it is no surprise, or shouldn’t be, that Democrats are fighting for tech companies not immigrants. Where in the Senate is the Dream and Promise Act for DACA recipients? In any event, within a broader package of reform, removing country caps makes a lot of sense. But this is not a justice bill, or a fairness bill. It’s a let’s help Apple make more money bill.

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