Tag: Refugees

Didn’t We Do This Already? An Early Analysis of the Replacement “Travel Ban” Executive Order

Kara HurvitzLeave a comment

(This is the umpteenth installment of a series of articles unpacking the many executive orders issued by the Trump administration. Click here to read the installment on this order’s predecessor, issued in late January. Though I am not an immigration specialist, I am a legal generalist working with indigent populations professionally full-time. This article is not intended to form an attorney-client relationship or constitute legal advice, though it is my hope that it will help people understand what is going on.)

Hello from my lunch break! The administration put out a new version of January’s “travel ban” executive order yesterday, as well as a fact sheet that reads more like a form template responding to expected interrogatories than anything else. To save you some antacid, and because I’m preparing summaries on this topic anyway, I figured I’d let you know what has changed and what has stayed the same.

Same Garbage, Different Day…

Here are the provisions that look exactly the same, in all their still-terrible splendor:

  • Three Months without Travel. There is still a three-month travel ban for nonimmigrants from six Middle Eastern countries (Iran, Libya, Somalia, Sudan, Syria, and Yemen). You’ll note this is one fewer than the old one, and more about that below.
  • Refugees Still Not Welcome. There is still a four-month cessation of refugee acceptance from all countries. It’s still unprecedented and longer than the one after 9/11, and they are still limiting refugee entry in fiscal year 2017 to 50,000 (which is less than half the amount set by the Obama Administration for the year).
  • Fuhrer Exception Still in Place. You can still get an exception to the ban for “the national interest,” which is just as vague as it was the first time.
  • Fingerprints and Photographs. The enhanced screening, including biometric screening on entry and exit, is still in place.

…But they added some Febreeze to mask the stench.

Here are the major changes made in the new version, which make it slightly more palatable but don’t change the biggest underpinnings:

  • Six is the New Magic Number. Iraq is no longer included in the list of countries banned from entry. They explain this in the executive order, in way more detail than you probably care to read, but it basically comes down to saying that Iraq is a “special case.”
  • There’s a Set Start Date. The new provisions go into effect March 16, which is presumably as much to avoid an embarrassing repeat of January’s confusion as anything else.
  • Syria No Longer Singled Out. There’s no indefinite prohibition of Syrian refugees, who presumably can reapply with everybody else after the four-month window passes. Unofficially, there may still be a prohibition in place for most refugees until FY 2018, though, because we had already cleared half the new 50,000 cap set for FY 2017 by December 2016.
  • Legal Status Apparently Means Something Again. Folks who have U.S. citizenship, lawful permanent residence, or a previously-issued legal visa now are supposed to be exempt from enforcement (though, of course, it remains to be seen if CBP will comply with the provision).
  • “Religious persecution” priority has been removed. There’s nothing to say this won’t still happen unofficially, but it’s no longer an explicit part of the executive order.

For more reading on this topic, I recommend this article put out by the New York Times, which contains a good compare-and-contrast summary. And on that note, it’s back to the law mines for me. I’m hoping to draft another essay about detainee free labor in the near future though, so watch this space.

Niños in New Bedford: Some (Almost) Brief Comments on This Week’s ICE Raids

Kara HurvitzLeave a comment

Hi again, folks. I’m hoping to finish the news roundup later today, but first, I think we need to have a really difficult conversation about ICE raids and immigration. This isn’t going to be fun for anybody involved, and I’m sorry in advance. Were we speaking in person, I would take you out for ice cream after. (Consider this paragraph my virtual ice cream to you.)

The Background

I’ve seen a lot of people interacting with this article by the Washington Post, and also this article by the New York Times, to talk about an increase in ICE raids in at least six states in the country. It is a scary time, and there is a lot of evidence suggesting that immigration officials have stopped prioritizing people suspected of criminal activity in favor of simply rounding up every brown person who can’t produce papers fast enough. And we need to be talking about that, and planning, and responding.

But to understand the terror that these populations are experiencing, and to understand how to best organize and react, we also need to talk about the history of ICE raids in this country. The New York Times article includes quotes like “This is new” and describes people swept as demographics “that the government had not previous paid much attention to.” (And though the Washington Post article does eventually do a great job of describing enforcement patterns, they similarly lead by describing raids against people with no criminal record as “an apparent departure from similar enforcement waves during the Obama administration.”) These things are true, in the broadest sense of the term, because eventually the Department of Homeland Security did repeal Secure Communities in favor of a Priority Enforcement Program under President Obama. But that was in November 2014, six years into his presidency and only a couple of years before Secure Communities was put back in place with a vengeance last month. The reality is that many of these communities are afraid because they know what to expect. They have seen — and lived through — this before.

The Background Background

By way of example, let’s look at a local bogeyman here in MA: the New Bedford raids. These raids happened ten years ago — before I was settled in this area, or had even graduated law school — but I can tell you about them in excruciating detail anyway, because they are still talked about so often by both colleagues and the larger local community.

The New Bedford raids were part of a raid strike by ICE in 2006–2007, along with other, similar workplace raid efforts throughout the nation (such as ‘Operation Wagon Train,’ which resulted in raids throughout the midwest that swept up almost 2,000 people). These efforts were part of an upward trend in raids conducted by the National Fugitive Operations Program — by 2007, it had a budget of over $2M and was apprehending thousands of people per year, although it was pretty much failing in its official stated goals because only 9% of them were convicted of criminal charges. In many of these raids, people who ultimately coughed up documentation of legal status were detained for months and months before they could prove it. As far as I can tell, the New Bedford raid details were extremely representative of the contemporary national realities, which share a lot of similarities with those we face today.

In March 2007, over 300 ICE officials swarmed a single factory in New Bedford that was known for employing undocumented immigrants under sweatshop conditions. The officials simply split the entire factory into two groups: those who could produce documentation and those who couldn’t. About 362 people were arrested, detained, and mostly sent to Texas to await deportation proceedings; many of them were caregivers for small children who were U.S. citizens. ICE repeatedly kept the child and welfare department here from implementing efforts to assist these families, eventually prompting the governor of MA to call the entire thing “a humanitarian crisis.”

The story gained national attention, in large part due to the indiscriminate nature of the raid, the immediate transport of those detained across the country, and the documentation of extremely poor detention conditions. (It also eventually led to a lawsuit on behalf of the workers, which is a silver lining on this whole thing but also a whole other story). Literally hundreds of families were impacted, in a community that only has about 100,000 people total living in it. Other than some allegations about creating false IDs and hiring practices for two people who weren’t even swept up in the raid itself, the whole thing had absolutely nothing to do with criminal allegations; it was simply designed to show the force of Immigration and Customs Enforcement as a department. This is what people are afraid of: an over-funded, over-armed department that could swoop in, jail, and deport hundreds of people just trying to live their lives at any given moment. And they aren’t afraid because they don’t know what is going to happen to them; they are afraid because they do.

The Foreground

So why am I telling you all of this? And, more importantly, what do we do with all of it? Though I don’t claim to have all the answers to a difficult situation, I can at least provide some thoughts (and assure you that I’m not sharing human tragedy for the fun of it, while I’m at it). Here are some preliminary suggestions for how to put this information to good use:

  1. Help concrete fears to lead to concrete planning. People are afraid of very specific things happening to them, because they have happened before, and that means they can also benefit from planning how to handle those specific things. A lot of advocacy communities right now have excellent resources for pre-raid planning and other forms of safety planning. Individual families have individual needs, and a lot of those needs are going to involve people’s safety; helping people organize their thoughts on those needs gives them agency as well as helping them logistically.
  2. Don’t assume that “Know Your Rights” assistance will cover all immigration needs. A lot of folks can benefit from information about how to handle ICE presence, especially in situations like a single ICE officer showing up at your door. But a lot of folks do know their rights, and when it’s over 300 officers with a SWAT team at your workplace all of that can go out the window very easily, regardless. Helping people know their rights is a good start, but it is only a starting place.
  3. Start from the presumption that ICE can, and ICE has, and ICE will, whenever you learn new information. This is an organization that historically has enjoyed a lot of backing, a lot of funding, and a lot of power. Its target demographic, in contrast, is one of the most vulnerable populations living in America. When hearing new stories, it’s always important to trust and verify, because scared people can create a rumor mill like nobody’s business. But in general, I recommend that you start from a presumption that ICE practices being reported probably are happening, instead of starting from a presumption that practices are being exaggerated.

We’re heading into dark times, folks — and unlike building a wall, or banning all refugees, this bit of immigration horror show is not uncharted waters. We have to expect to see smoother sailing.

Head-Fakes and Chore Charts

Kara HurvitzLeave a comment

Hello from my lunch break! I’ve heard a lot of people talking about an article here on medium titled, “The Immigration Ban is a Head-Fake — and We’re Falling For It.” The central thesis of the article is that “the administration is deliberately testing the limits of governmental checks and balances to set up a self-serving, dangerous consolidation of power” and that the immigration ban was a “distraction” that we “fell for” by protesting. The article concludes by noting that protesting is a mixed bag which can “help the other side,” and urging reporters to do their jobs properly.

(There, I saved you a click.)

I actually agree the first premise of this article — like the author, I genuinely believe we were witnessing boundary testing of a nascent fascist regime.

That said, however, I do have qualms about the rest of the article. More specifically…

The immigration ban is not a distraction, and protesting is an absolutely necessary response to this boundary-testing, for several reasons:

  1. The immigration bans in place resulted in many, many people throughout the country being detained illegally on Friday. In addition to being real people with very real risk of deportation, which would be life-altering and in many cases potentially life-ending, those people are themselves a bell-weather for further fascist activity. It is absolutely vital that we pay attention to what is happening with our most vulnerable populations, because we know from history that fascist escalation begins there but does not end there.
  2. The protests in airports served as very important cover and coordination for the attorneys working in JFK, Logan, Dulles, and elsewhere. They helped attorneys get people access to representation during detention, file emergency motions that created court holdings (in case anyone were curious whether it’s normal for court holdings to issue on a Saturday, it is not), and test our boundaries against this regime — we can’t know whether they will ignore court orders until there are court orders in place, and once they have done so we have really important information about next steps.
  3. It’s extremely important for the average citizen to be doing things they feel are helping resist, both in terms of general morale and because resistance is a natural counter to normalization. Fascist regimes rely on normalization very heavily in order to work properly; it’s why propaganda is so prevalent and it’s also why you keep hearing politicians say the phrase “This is not normal.” Average citizens might not be able to file motions, but they can coordinate with people who can, and they did, and that is in no way “playing into this administration’s hands.”
  4. Protests reinforce the objectively true fact that fascism is not an end goal of a majority of Americans, which is a piece of propaganda we’re hearing over and over again. Though this article contemplates the idea that Trump has lots and lots of supporters, he actually doesn’t, especially on scary fringe issues like whether Bannon should have the authority to assassinate American citizens. Protests help the average American see that. It’s much, much easier to lie about this if active protest isn’t visible.
  5. Most people don’t know what they should be doing instead, and protests give people who want to do something something to do. This is actually really psychologically valuable, and as long as people don’t conclude they’ve done everything they need to do purely by showing up, it’s not a bad thing that they feel they have helped. So the moral is not “don’t protest,” it’s “don’t only protest” (which, to be fair, that article does state clearly). At minimum most people who showed up also tracked the news, which is very important and a thing we all need to be doing.

All of that being said, if we should be doing more than protesting, what else can we be doing?

I’ve been thinking about this question a lot of late, and more specifically about how we diversify and cooperate over the next four years — I think we all know that everyone doing everything every day just isn’t going to work that whole time, and as the article notes, protest is necessary but not sufficient to enact long-term change. There are so many things we all need to be doing — from gathering information, to disseminating information, to political action, to legal action, to logistical support, to morale boosting, to name a mere few — and we all have a role to play here.

Think of it as maintaining a house together — everybody gets a chore to do, and if all of us are sweeping daily, nothing else gets done. Some of us want to swap chores, and some of us want to do the same one every time. And the beauty of this work is that both of those are possible! I would love it if we were all thinking about how we can work together, playing to our strengths, to get through this.

After pondering this a bit, I concluded the best way to thinking about distributing various tasks necessary for change is to use a process of discernment I learned at school, which is loosely based on a Jesuit process of discernment of spirit (but is not religious).

Here is the basic question to ask yourself:

What…

1. Brings me joy…
2. …And I am good at…
3. …that is needed right now?

Note that those three things, by the way, are in order of importance; something that you really don’t enjoy is not sustainable for four years even if it’s really important, and we all need to be playing to our strengths. Some things, like protesting, are all hands on deck, but all hands on deck is no way to live day-to-day, and it’s a great way to burn ourselves out.

So, to synthesize for those of you who have less time for a lunch break than I do:

1. These are scary times;

2. Protesting is valuable;

3. So are other things, and we should be talking about what else we’re all going to do to keep on keeping on.

Okay, that’s all for now! Time to head back to my own task for social justice, which would be my advocacy day job. I’ll catch you all at the next EO.

Stakes on a Plane: An Early Analysis of the “Protecting the Nation From Foreign Terrorist Entry…

Kara HurvitzLeave a comment

(This is the third installment of a series of articles unpacking the many executive orders issued in Donald Trump’s first week of office. Click here to read the first installment (on the Border Security Executive Order), and here to read the second installment (on the Enhanced Public Safety Executive Order). Though I am not an immigration specialist, I am a legal generalist working with indigent populations professionally full-time. This article is not intended to form an attorney-client relationship or constitute legal advice, though it is my hope that it will help people understand what is going on.)

After nearly two full days of blissfully executive-order-free existence, this one (which was signed at 4:50 PM on a Friday, which just so happened to also be Holocaust Remembrance Day, and is still not up on the White House website) is a real blow to morale. The EO is a significant break from decades of humanitarian effort, and places the lives of many traumatized and suffering people in further peril. I’ll do my best to unpack what the executive order is actually saying, to help families prepare and to inform the average citizen what we can expect on this front. I’m also going to close this post with suggestions for how to support our immigrant communities, because at the end of this week I’m sure many of us are wondering how to help.

Here’s what is new and clearly articulated as of today, January 28:

  • For the next 90 days, entry to the country is suspended for immigrants and nonimmigrants from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. As several writings have noted, this is already being implemented against people touching down in U.S. airports, including people who are legal permanent residents. Now is therefore a very bad time to travel at all if you are an immigrant of any non-citizen status from those seven countries. These countries are widely believed to be targeted due to their predominantly Muslim demographics, though several countries with also predominantly Muslim demographics (such as Egypt and Saudi Arabia) have been left off the list. Since the provision outlining this requires several reports from government officials, we may see some flux in which countries remain on (or are added to) this list long-term. The EO contains an exemption clause “on a case-by-case basis,” when entry “is in the nation’s interest,” which we can probably assume refers to how much various people in the current government already like you.
  • Heart-wrenching changes are being made to the United States Refugee Admissions Program, which this executive order refers to as “realignment”. These changes include a four-month bar of entry for all refugees from all countries — the longest bar in our history, and nearly twice the length of the bar put in place after 9/11 — and indefinite suspension of any accepted refugees from Syria. During that four-month bar, the Department of Homeland Security will make currently-vague determinations about which countries will have reinstated refugee programs after the bar has lifted, though presumably this would not include anyone from the seven countries listed above. The executive order also limits the total number of refugees that may be admitted to 50,000 in fiscal year 2017, which is less than half the number in place before this order was issued (and the lowest number cited in over a decade). Once the USRAP is resumed, priority will be given to people who are religious minorities in their home country, which Donald Trump has clarified publicly to mean Christian applicants. The executive order also contains the same general exemption “on a case-by-case basis,” when it is “in the national interest” (which probably means Our Fuhrer’s interest, though the executive order does mention potential exemptions for people already in transit). I’ll talk more about what these provisions mean, and how they change life for people fleeing traumatic and dangerous circumstance, in a section below.
  • Many, many more reports more reports are being ordered from the Secretary of Homeland Security and the Attorney General, as well as a few more from the Secretary of State. The executive order requires reports every 30 days pursuant to Section 3, reports within 60 and 100 days pursuant to Section 4, reports within 100 and 200 days pursuant to Section 5, reports within 100, 200, and 365 days pursuant to Section 7, and reports every 180 days pursuant to Section 10. This is, keep in mind, in addition to all those reports ordered by the other two executive orders. Only the reports about terrorist acts will be available to the public (because keeping all of America terrified seems to be an actual goal of this administration), but I honestly don’t see how all of the other reports are even going to get done — Trump did, after all, order a hiring freeze, and several reports also involve a State department which has been famously vacated this past week. I would feel bad for these officials, except for the part where the writing on the border wall was about nine feet high on this; constant reports are a known favored technique in this type of government regime.
  • Screening is being made more rigorous on a number of immigration-related fronts, and will include more biometric measures such as fingerprinting for entry and exit from the country. Though it’s not clear what all of those measures will be — we already have a pretty robust set of measures in place for screening — it’s clear that these measures will mean much more work for immigration staff and much longer wait times overall. The executive order does specifically call out interviews for every single visa applicant, and the American Immigration Lawyers Association has put out a pretty good summary list of other changes mentioned in the executive order:

o Uniform screening standards and procedures (such as in-person interviews);

o The creation of a database of identity documents;

o Amended application forms with questions “aimed at identifying fraudulent answers and malicious intent”;

o A mechanism to ensure that individuals are who they claim to be;

o A process to evaluate the person’s “likelihood of becoming a positively contributing member of society” and “ability to make contributions to the national interest”; and

o A mechanism to assess whether the applicant has the intent to commit criminal or terrorist acts after entering the United States.

Some reality-checking about these policies:

  • Refugee vetting is already very, very vigorous. The previous administration put out a very good infographic of exactly how the vetting process worked prior to this week, and I urge you to read it. I also recommend this ProPublica twitter thread, which provides many, many resources for understanding the general process.
  • The United States Refugee Admission Program is a humanitarian effort designed to help people fleeing unimaginable trauma and horrific circumstance. By definition, in order to qualify for the program, an applicant has to show credible fear for their personal safety in their home country. Refusing all admission for four months is tantamount to that moment in a horror movie when all the doors slam shut and lock themselves, leaving terrified victims trapped in the house to die. And since the rest of the executive order contextualizes this act as aimed at Muslim populations, that will have a very real impact on the radicalization of Islam on a national stage.
  • Many of the provisions limiting entry generally are very likely to be illegal. The Council on American-Islamic Relations has already filed a constitutional suit against this executive order, and complaints have also been filed by the ACLU and other immigration law organizations. These suits cite due process violation and equal protection violation. The New York Times also put out a decent article about why nationality-based discrimination of this magnitude may be illegal under prior legislation, which I recommend reading. Expect many, many organizations to challenge this executive order swiftly with the fury of a thousand suns. And on a related note…

Here’s how you can help advocate against these orders:

  • Now is an excellent time to donate to CAIR, the ACLU, and other immigration-based advocacy organizations. Both CAIR and the ACLU are poised to become embroiled in lengthy and expensive suits to defend people’s rights, and that means they will greatly benefit from both time and money.
  • Pay attention to local and national advocacy efforts. Many organizations are already leading efforts to educate and assist people experiencing immigration-based discrimination. As noted above, both CAIR and the ACLU have already brought suits about this executive order. The American Immigration Lawyers Association has also been putting out excellent press releases. The Political Asylum/Immigration Representation Project has been putting forward a Know Your Rights initiative to educate people on the ground level, including topics like safe travel in their information. If you live in Massachusetts, like I do, the MIRA Coalition puts out regular news about immigration-related efforts and is a great place to find links helping people on day-to-day immigration issues. Mayor Walsh and Governor Baker have also put out some statements in the past week that indicate their general posture on the topic of sanctuary, giving us a clear picture of where and how advocacy may be next directed.
  • Consider assisting with protests and other on-the-ground efforts. Protests can be particularly dangerous for immigrant populations, because arrest can lead to deportation. This means that joining protests (such as the CAIR rally happening at Copley Square tomorrow) can be an excellent way to assist and show support, and also potentially can be a way to learn of other future efforts.
  • Stay informed about changes on the national stage. You’re already doing this one if you have gotten this far into this article, and I’m just going to take a moment to sincerely say: Yay for you! I encourage you to keep it up. It’s hard, but incredibly helpful, to know what is going on.

And that’s about all I got on this particular executive order, though I’m sure we’ll be hearing more in the weeks and months to come — and while I wish this were the last summary in this series, I know that it won’t be. Stay tuned for more awful, folks, and thank you for your diligence.

Tales from the Borderlands: An Early Analysis of the “Border Security” Executive Order

Kara HurvitzLeave a comment

(This is the first installment of a series of articles unpacking the many executive orders issued in Donald Trump’s first week of office. Though I am not an immigration specialist, I am a legal generalist working with indigent populations professionally full-time. This article is not intended to form an attorney-client relationship or constitute legal advice, though it is my hope that it will help people understand what is going on.)

Of all of Donald Trump’s promises, perhaps his most famous was his promise that he would personally ensure that the American government would “build a wall” to keep out “illegal immigrants.” It is therefore not surprising that one of his first acts in office is to sign an executive order entitled “Border Security and Immigration Enforcement Improvements,” which outlines his plan for building a wall (among other things). The order is long — it contains seventeen distinct sections — and a lot of it is either vague, confusing, or both. This article is intended to break down what the executive order is actually saying, to help families prepare and to inform the average citizen what we can expect on this front.

Here’s what is new and clearly articulated as of today, January 25:

  • The administration is ordering a wall built on the border between the United States and Mexico. Yes, that’s really a thing that is apparently happening. That said, it’s still unclear what the funding streams will be, what the budget will be, or generally what the plan is for construction.
  • The administration is ordering new detention facilities built near said wall. Again, it’s not clear where the funding is coming from or what the budget will be, though I’ll write more on that below. If Congress doesn’t cooperate, the actual construction is probably not going to happen.
  • Pre-proceeding release will no longer be a thing. The actual language of the executive order describes “the termination the practice known as catch-and-release,” which is really just a fancy way of saying “we won’t let people out before their hearings anymore.” This practice actually was originally terminated in 2006 under President George W. Bush, but much like NSEERS we’ve been walking that back under subsequent policy since 2009 or so. This is a big deal, both because it’s not especially humane and because refusing to release people puts huge amounts of strain on the detention systems, which often aren’t equipped to hold people in the numbers they are apprehended. This executive order does have a plan for that, but… you’re probably not going to like it.
  • Though we now have a federal hiring freeze for most government agencies, good news: The Wall is Hiring! The Secretary of Homeland Security “shall” (which is legalese for “this ain’t optional, Hoss”) hire 5,000 more border patrol agents, which the administration wants stationed “as soon as is practicable.” And they said Donald Trump wouldn’t create more jobs.
  • The order compels every executive department and agency to report all aid and assistance to Mexico since 2011. Folks, I honestly wish I were making this one up, but the language isn’t exactly ambiguous. Despite it not being remotely illegal to provide funds or otherwise provide aid to Mexico during President Obama’s tenure, each executive department and agency “shall” (there’s that word again) “identify and quantify” all such aid going back five years — in other words, not just what types of help everyone has given, but how much. They make sure to include language specifying that they mean “all bilateral and multilateral development aid, economic assistance, humanitarian aid, and military aid.” The first report is due to the Secretary of State within thirty days of today’s report — so by the end of February, basically. And thirty days after that, the Secretary owes a report directly to the President. Incidentally, note that all of this involves the Secretary of State, not the Secretary of Homeland Security. So, you know, that’s promising. Also, the section outlining all of this contains a grammatical error, which I note in a vain attempt to make myself feel better about the whole thing.
  • The Secretary of Homeland Security is now allowed to deputize any and all state and local police infrastructure of the United States as Immigration and Customs Enforcement officers. This is another one I dearly wish I were making up, because my concern that it might happen has been literally keeping me up at night. But again, the language is not ambiguous — “as the Secretary determines are qualified and appropriate,” police can be authorized “to perform the functions of immigration officers in relation to the investigation, apprehension, or detention of aliens in the United States under the direction and the supervision of the Secretary.” Oh, but in case you were worried about those poor ICE officers being out of a job, you needn’t be; the very next sentence clarifies that this is “in addition to, rather than in place of, Federal performance of these duties.”
  • This executive order is really hoping you haven’t heard of the concept of ‘sanctuary.’ It grants officers “access to all Federal lands as necessary and appropriate to implement this order” as well as authority “to perform such actions on Federal lands as the Secretary deems necessary and appropriate to implement this order.” I’m not sure how this one will be implemented in cities that refuse to cooperate, but I guess we’ll find out.
  • They want prosecution of people detained at borders to be a high priority. I know this because they explicitly say so. There’s a section devoted to it and everything — and the petty part of my brain that wishes none of this were happening would like you to know that they use the term ‘nexus’ wrong while saying so.
  • There will be monthly reports on their apprehension statistics. In a “publicly available way,” though it’s unclear what exactly that means.

Here’s what the executive order might be saying, but we need more information to really know:

  • Detained immigrants may be sent back to the place they are fleeing — or they might not. The exact language in the executive order is “The Secretary shall take appropriate action . . . to ensure that aliens . . . are returned to the territory from which they came pending a formal removal proceeding.” It’s not clear whether that would mean “we stick you in a truck and give you a nice starlight tour of Mexico,” or it actually means people might be extradited to the country they are fleeing. As awful as the former would be, the latter would be even worse — but it’s likely the latter is the accurate interpretation, because this administration has been adamant in its denial of refugees, and the policies in this order about asylum aren’t exactly much better. Relatedly…
  • Asylum might be about to become impossible to obtain at the border. Some provisions of this executive order promise to “end the abuse of parole and asylum provisions currently used to prevent the lawful removal of removable aliens.” This is a confusing statement to me, in addition to being a vague one, for a variety of reasons — first of all, it’s not exactly easy to get asylum granted; though rates vary by location and by type of application, less than one-half of asylum applications are granted annually. But also, from a legal perspective, you’re not a removable alien on the basis of status anymore if you have asylum status granted; it’s literally a status that grants the right to permanent legal residence. This is like saying “we will end abuse of the self-defense doctrine currently used to prevent the lawful incarceration of people who punched someone assaulting them and then ran like hell.” At any rate, that confusion aside, it’s not really clear what abuses they are contemplating or whether they are saying asylum will stop being a defense to deportation, so we’ll need to keep watch on this front and wait to see what is going on.
  • Special Immigrant Juvenile Status might also be about to become impossible to obtain at the border. Right now we have a status that is like asylum that specifically can only be applied to unaccompanied children — it’s called Special Immigrant Juvenile Status (or SIJ status for short). This executive order tells the Secretary of Homeland Security to “ensure that unaccompanied alien children are properly processed, receive appropriate care and placement while in the custody of the Department of Homeland Security, and, when appropriate, are safely repatriated in accordance with law.” It’s not clear whether this processing means deportation, or if it means filing SIJ paperwork; I guess we’ll need to wait and see on this one also.
  • The administration may be assigning asylum officers and immigration judges directly to detention centers. The language in the order itself isn’t entirely clear, but it sounds like the order is simply installing asylum officers and judges directly in the detention centers. To my knowledge, this is new — though it’s possible to plead asylum as a defense to deportation, traditionally that’s done at the court as part of deportation proceedings, just like the proceeding itself. This provision is probably not legal, in case anyone was curious. It sounds like they are expecting many of these cases won’t even get to the deportation proceeding stage , which would be a staggering change if I’m reading this correctly. Basically, they are aggressively minimizing how much detainees even get to set foot in the country at all.

Here’s what the executive order dictates for the near future, which presumably will clarify some things:

  • Several reports or reviews. Per the executive order, there’s a report due to the President in ninety days on the general progress of all of these directives, and another one due in one hundred and eighty days. There’s nothing guaranteeing that any of us will be told anything about this, but I suspect strongly that anything that makes this administration look good will be reported upon at length.
  • A budget of some kind for the project. Though there’s nothing guaranteeing we’ll see this either, it is required per the order itself for the current and next fiscal year. That gives them more-or-less six months to slap something together.

And now you know everything you ever wanted to know about this executive order! And presumably several things you didn’t. At any rate, it’s going to be a rough few years, but if you are reading this, you presumably knew this already. Keep on keeping on, and take care of yourself while you do; we’ll do everything we can to keep all of this bearable.

(Note: Click here to continue to the second installment, on the Enhanced Public Safety executive order.)