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Despite Flurry of Actions, Trump Administration Faces Constraints in Achieving Its Immigration Agenda
Despite President Trump’s intent to further stiffen immigration enforcement in the U.S. interior and at the nation’s Southwest border, the administration’s goals are being consistently stymied by court injunctions, existing laws and settlements, state and local government resistance, congressional pushback, and migration pressures that are beyond the government’s ability to swiftly address.
While major attention has focused on the government’s inability to stem rising arrivals at the U.S.-Mexico border, it has been less noted that arrests and removals of unauthorized immigrants in the U.S. interior have declined so far this year. In the first quarter of fiscal year (FY) 2019, U.S. Immigration and Customs Enforcement (ICE) arrested 34,546 noncitizens, down 12 percent from the same period last year. And removals were at 22,169, down 7 percent from the same period last year. The decline in enforcement in the U.S. interior owes to a couple of factors: limits on ICE cooperation imposed by a number of state and local jurisdictions, and the shift of some ICE personnel to respond to an increasingly chaotic situation at the border.
The administration has directed significant attention—and resources—to cope with the soaring numbers of asylum seekers at the border. Its active deployment of policy solutions designed to discourage Central American asylum seekers, including family detention, making illegal border crossers ineligible for asylum, and zero-tolerance policies that resulted in family separation have been stayed by legal challenges and public outcry.
The president has increasingly lashed out in frustration at not achieving success in the issue area central to his campaign and his presidency. As this reality and its optics have sunk in, the president earlier this month forced out several top officials at the Department of Homeland Security (DHS), including Secretary Kirstjen Nielsen.
The administration is reported to be considering a number of new policies, including implementing travel restrictions on nationals of countries with frequent visa overstays—per a presidential memo released this week—and expediting the issuance of a final regulation that will allow the government to deny immigration benefits to large swaths of foreign nationals who are deemed likely to become a “public charge.” However, when it comes to enforcement in the interior and at the border, the administration’s policy course is unlikely to produce the results that the president has repeatedly fought for.
Interior Enforcement Slows as Resources Are Reallocated to the Border
In his campaign promise to establish a “deportation force,” and in his first set of executive orders, Trump vowed to “employ all lawful means to enforce the immigration laws.” However, while the president increasingly conceives of the fight to combat illegal immigration as one that should take place at the U.S.-Mexico border, the results in interior enforcement have seen a significant decline.
The dip in interior enforcement witnessed in the first months of 2019 can mainly be attributed to the policies of many states and localities that limit their cooperation with federal immigration enforcement. In places such as California, ICE is issuing an increasing number of requests (known as detainers) for state and local law enforcement agencies to hold deportable noncitizens being released from custody, but—constrained by state laws or local practices—more agencies are declining to comply. When noncitizens subject to a detainer are released from state or local law custody, rather than being handed over to immigration authorities, it is rare that ICE officers ultimately can find and detain them. During FY 2017, ICE officers rearrested just 6 percent of noncitizens who had been released by state or local law enforcement agencies even though detainers had been issued.
Frustrated by the resistance from “sanctuary” jurisdictions, Trump recently publicly promoted the idea of releasing detained border crossers into communities that have limited their cooperation with ICE. Though an unusual—and untested—form of retribution, it would not be the first act of intimidation that sanctuary jurisdictions have faced. The administration has repeatedly threatened to withhold federal funding for noncooperating jurisdictions, but has been met with significant legal hurdles in federal courts.
The administration’s ambitions on interior enforcement are also tempered by resource constraints. Increased removals require more resources, including more ICE officers and detention space. In its FY 2019 budget proposal, DHS requested funding for 12,000 additional detention beds and 2,000 additional ICE officers. It ultimately received approval for 5,000 more beds and no new ICE officers. However, even though overall enforcement levels are down from their peak early in the Obama administration, ICE has stepped up use of immigration detention, detaining just over 50,000 noncitizens in early 2019.
The unprecedented number of asylum seekers arriving at the border may also partly explain the slowing of interior enforcement. According to ICE, the overall reduction in arrests is due to reassignment of resources to border enforcement.
Border Security Measures Tested Amid Mounting Legal Challenges
Time and again the president’s attempts to implement tougher policies at the southern border have been thwarted by limitations from laws, federal court decisions, and legal settlements. These policies include:
- Family separation. After then-Attorney General Jeff Sessions announced on May 7, 2018 that DHS would refer all illegal border crossers for criminal prosecution, DHS began separating an unaccounted number of families, as parents were transferred to criminal custody. Amid widespread public outcry against the separations, the president issued an executive order on June 20, 2018 mandating families be kept together. Shortly afterwards, U.S. District Judge Dana Sabraw of the Southern District of California enjoined the administration from separating families, unless the parent is unfit or presents a danger to the child.
- Family detention. In his executive order ending family separation, the president ordered Sessions to petition the federal judge overseeing the settlement that governs the detention of immigrant children and families for permission to indefinitely detain families. The judge, Dolly Gee of the Central District of California, rejected that request.
- Asylum ban. In November 2018, DHS and the Justice Department published an interim final regulation and the president concurrently issued a presidential proclamation—which together had the effect of making illegal border crossers ineligible for asylum. Ten days after the new policy’s rollout, U.S. District Judge Jon Tigar of the Northern District of California enjoined its implementation. An appeal is pending before the Ninth U.S. Circuit Court of Appeals.
The administration’s most recent efforts to deter the arrival of asylum seekers may soon join this list. In January, the administration began implementing its Migrant Protection Protocols (better known as Remain in Mexico), under which asylum seekers arriving at the border are returned to Mexico for the duration of their immigration proceedings and allowed into the United States only on the dates of their hearings. In April, U.S. District Court Judge Richard Seeborg of the Northern District of California issued an injunction that would block the policy. Days later a unanimous three-judge panel in the Ninth U.S. Circuit Court of Appeals gave the administration a reprieve and issued a stay before the injunction could go into effect, allowing Remain in Mexico to continue. An appeal is now before the full Ninth Circuit.
It is also rumored that the administration has a number of plans that will likely face obstacles if implemented:
- Closing the border. For months the president has intermittently threatened to shut down the border, but these threats became much more concrete in late March, as the number of arriving asylum seekers continued to climb. Completely shutting down the border would come at a significant economic cost and encounter logistical and legal hurdles. Past experience suggests such moves are quickly abandoned. After the 9/11 terrorist attacks, the United States did not officially close its borders with Mexico and Canada, but instead moved to full inspections of all border crossers. The resulting wait times, which stretched into more than a day at some ports, were so damaging to U.S. businesses that the policy was reversed, and within a week of its implementation the wait times returned to close to normal. Possibly recognizing the potential difficulties, the president later backed off this threat, opting instead to give Mexico one year to stem the flow of drugs and migrants before he will impose steep tariffs on cars and then, possibly, close the border.
- Limiting credible fear. The administration appears to be considering raising the bar of the initial “credible-fear” determination for arriving asylum applicants. The interview for the determination—currently conducted by an officer of the U.S. Citizenship and Immigration Services (USCIS) Asylum Corps—is designed to weed out frivolous claims and allow most applicants to pass that first hurdle, as it occurs shortly after the applicant has been apprehended, when few have counsel or have had an opportunity to prepare a case. Indeed, nearly 80 percent of recent applicants passed their credible-fear interviews. The administration appears to be considering raising the standards of such determinations and/or having U.S. Customs and Border Protection (CBP) officers make them, assuming that they will be stricter. Both changes would likely face legal challenges, arguing that the resulting process fails to meet U.S. obligations under federal and international law to not return asylum seekers to situations where they could face possible persecution.
- Binary-choice family separation. The administration is said to be debating implementation of a new type of family separation, named “binary choice,” under which parents would get to choose between being detained together with their children or separated while the parent remains in detention. This strategy has been approved by the courts overseeing the family reunification litigation and under the Flores v. Reno settlement—the decades-old agreement that limited the time and conditions under which immigrant children can be detained. However, the policy would run into immediate resource problems, as family detention is already over capacity.
- Family detention. Last September, the administration introduced a proposed regulation to implement the Flores settlement, under which it would be able to indefinitely detain families. The notice and comment period for the proposed regulation ended in November 2018. A final version could be published any time but will need to first be reviewed and approved by Gee, who oversees the settlement litigation.
- Delay work authorization for asylum seekers. According to recent reports, the administration is considering doubling the amount of time, from six months to a year, that asylum applicants are required to wait before being eligible to receive work authorization. Although this is legally and logistically feasible, it is unlikely to deter arriving asylum seekers, since many manage to work without authorization.
- Deny bond for asylum seekers. Attorney General William Barr recently issued an opinion deeming all arriving asylum applicants ineligible for bond and thus subject to indefinite detention throughout the duration of their asylum proceedings. However, the decision is unlikely to have a significant impact on recent flows, the majority of which are made up of families and unaccompanied children who are exempted from the opinion. In addition, ICE has limited capacity to hold asylum seekers, and will likely continue paroling, rather than detaining, the bulk of single adult asylum seekers. The opinion will also likely face legal challenges.
While the administration’s record on border security has encountered countless difficulties, it has had some limited successes. DHS appears to be successfully implementing a practice called “metering” at ports of entry, in which only a few asylum applicants are accepted each day and others are forced to wait in Mexico for weeks or even months before applying. This appears to have limited the number of asylum seekers entering at ports of entry, but has likely increased crossings between ports of entry.
The president has also reserved funds for his border wall in declaring a national emergency that could potentially allocate $6.1 billion for border barriers. Indeed, the Pentagon has already transferred $1 billion for wall funding from a military personnel account. The legality of the president’s declaration and transfer is being litigated.
Putting Pressure on a Divided Congress
The administration has increased its calls for Congress to make legislative changes that would help achieve its aim of increasing enforcement at the southern border. However, such requests are even less likely to meet with success in a divided Congress than they were when Republicans held both chambers.
Specifically, DHS has requested changes to allow it to deport children and detain families. Before resigning, Nielsen sent a letter to Congress sketching a crisis at the border, pressing for funds, and saying she was preparing such legislation. But the text has yet to materialize.
Finally, the administration asked Congress to lift limitations imposed under the Trafficking Victims Protection Reauthorization Act (TVPRA) of 2008 and the Flores settlement, which govern the treatment of children. However, the vast majority of asylum seekers at the southern border currently are families, not unaccompanied children. More importantly, the House is unlikely to agree to changes to TVPRA or Flores.
Mexico: Can Increased Cooperation Help the President Achieve His Goals?
Facing these significant legal and logistical difficulties, if Trump wants to drastically decrease the number of arriving asylum seekers, the only remaining option lies with Mexico limiting migrants from reaching its northern border. First, doing so would likely require the United States to engage with Mexico at a different level of cooperation—sharing intelligence, resources, and expertise. Yet such cooperation seems to go against the U.S. administration’s instincts, which has repeatedly turned to threats and ultimatums.
Second, the Mexican public is slowly but increasingly wary of the Trump threats. Thus, it is uncertain how politically sustainable it will be for Mexico in the long run to do the president’s bidding. Furthermore, Mexico can argue that it is doing more than is warranted: despite having limited resources and enforcement capacity, Mexican authorities have deported more Central American migrants than U.S. authorities have in every year since FY 2015. Mexican authorities have recently ramped up detentions and deportations of migrants heading north, with deportations this month already surpassing deportations in the entirety of April 2018.
Mexico has also begun to employ different strategies to encourage Central American migrants to stay in Mexico, but these are limited both by resource constraints and ongoing fatigue among Mexicans. According to a recent poll, 63 percent of Mexicans disagree with the prospect of offering migrants asylum. Mexico has encouraged migrants to apply for asylum in Mexico, and as a result asylum requests have increased exponentially: from 1,000 petitions in 2013 to nearly 30,000 in 2018, and 13,000 in the first three months of 2019. The dramatic increase quickly overwhelmed Mexico’s asylum agency, resulting in long delays.
Mexico also tried offering temporary humanitarian visas. The government issued nearly 13,000 of these to Central Americans from January through early February, but then largely stopped issuing them in-country out of concern they were encouraging more caravans.
Confronted by many real and varied constraints, it is unlikely that President Trump can achieve his desired outcome–either on interior enforcement or border security. But he may be less interested in the outcome than in the narrative that he alone has the resolve to confront the immigration crisis, and that others are getting in his way. With the 2020 reelection campaign on his mind, that narrative may be more important to his base than actual success on the ground. Thus, despite lack of results, it is unlikely that his approach will change.
- Source article on the immigration spending debates between the White House and Congress
- MPI report on the immigration enforcement machinery under the Trump administration
- Executive Order on “Enhancing Public Safety in the Interior of the United States”
- BuzzFeed News article on proposal to double the time asylum seekers must wait for work permits
National Policy Beat in Brief
State Department Ends Foreign Assistance to Northern Triangle Countries. In the wake of President Trump’s threats to end foreign aid to countries from which the United States has seen rising numbers of asylum seekers, the State Department announced in March that it would end foreign assistance programs for El Salvador, Guatemala, and Honduras. According to reports, the move would affect nearly $500 million in 2018 funds and millions in unspent funds left over from the prior fiscal year.
In defending the decision, the president has publicly faulted the three governments for rising migration. Most of the funding goes to NGO and other projects in the three countries and is not directly distributed to the governments. Many experts have asserted that the aid cutoff will do more to spur migration than deter it.
- Washington Post article on the administration’s decision
Third Judge Rules Against Census Citizenship Question. A third federal judge has ruled against the Trump administration’s plan to add a question about citizenship status to the 2020 census. On April 5, U.S. District Judge George Hazel in Maryland issued a 119-page opinion finding the addition of the question unconstitutional because it could lead to a “differential undercount of Hispanics and/or noncitizens,” which would violate the constitutional requirement to count every person in the United States once a decade. An undercount could negatively impact countless activities, including congressional representation and federal funding for states, both of which are determined by population size, as determined by the census.
The administration has maintained that a citizenship question is necessary for the enforcement of the Voting Rights Act. The Supreme Court on April 23 heard the appeal stemming from a lawsuit on the citizenship question in the Southern District of New York.
- NPR article on the decision, including text of Judge Hazel’s opinion
Government May Need Two Years to Identify Separated Children. In an April 5 filing, the Justice Department reported it could take up to two years for the Department of Health and Human Services (HHS) to identify thousands of migrant children who were separated from their families in 2017 and 2018.
The filing is pursuant to a March ruling in Ms. L v. ICE, a class-action lawsuit brought on behalf of more than 2,700 children who were separated from their parents by the Trump administration during summer 2018. In January 2018, the HHS Inspector General estimated that thousands more were separated from their parents. These children were not included in the judicial ruling ordering reunification of separated families because they were no longer in HHS custody when the order was issued. As a result, U.S. District Judge Dana M. Sabraw ordered an expansion of the lawsuit’s class, requiring HHS to identify all families separated on or after July 1, 2017.
To comply with the order, HHS will review the files of about 47,000 children who were referred to the department and released to a sponsor after July 2017. The Justice Department and HHS appear to have differing views of the time needed to review all files: HHS has said that it could take at least a year , particularly because U.S. Customs and Border Protection (CBP) did not collect specific data on family separations before April 18, 2018, and because the government “lacks access” to children who have already been discharged from custody.
- New York Times article on the litigation
- Declaration of Commander Jonathan White, who has been charged with leading the reunification efforts, explaining the process of identifying the expanded class
ICE Conducts Largest Sweep of Single Worksite in More than a Decade. On April 3, U.S. Immigration and Customs Enforcement (ICE) Homeland Security Investigation (HSI) arrested more than 280 suspected unauthorized immigrants in a workplace enforcement operation in Allen, Texas. The action at CVE Technology, a phone equipment repair plant, was the largest single worksite enforcement sweep in more than a decade; the all-time largest took place in 2008, when more than 400 workers were arrested in Postville, Iowa. The Trump administration has prioritized worksite immigration enforcement, and ICE workplace investigations quadrupled between fiscal year (FY) 2017 and 2018.
- Dallas News article on the operation at the Allen plant
H-1B Visa Cap Met Within Five Days of Opening. U.S. Citizenship and Immigration Services (USCIS) announced on April 5 that it had received sufficient petitions to meet the 85,000 H-1B visa cap for FY 2020, five days after opening the application process. In total, USCIS received 201,011 H-1B petitions, 10,000 more than in FY 2019. This marks the seventh consecutive year in which the number of petitions surpassed the visa cap in less than a week.
This was the first year in which USCIS reversed the order of conducting lotteries for the limited H-1B visas. In a move designed by the Trump administration to increase the education levels among H-1B recipients, USCIS first conducted the lottery for the 65,000 visas allocated for cap-subject petitions submitted on behalf of all applicants, including those eligible for the advanced degree exemption. The agency then conducted the lottery for those qualifying for the 20,000-visa advanced degree exemption, also known as the master’s cap. USCIS credited the new process for an 11 percent increase in advanced degree holders selected.
- USCIS news release on reaching the FY 2020 H-1B cap
- USCIS news release on the number of petitions submitted and the new selection process
- Final rule for the new lottery process and registration requirement for H-1B applicants
- Recode article on the rising number of advanced degree holders selected
- MPI brief on the H-1B visa program
DHS Raises FY19 H-2B Cap by 30,000. The Department of Homeland Security (DHS) agreed to increase the annual 66,000 cap for H-2B nonagricultural temporary visas by an additional 30,000 for FY 2019. The extra 30,000 visas will only be available to “returning workers”—those who have previously entered the United States to work on an H-2B visa. In the FY 2019 appropriations for DHS, Congress granted the department the temporary authority to lift the visa cap, and on March 1, 2019, 11 senators sent a letter asking DHS to raise the ceiling to 135,320 visas. DHS exercised this authority in FY 2017 and FY 2018 as well, making available an additional 15,000 H-2B visas each year.
Since 2014, demand for the visas has surged, and each year the 66,000 cap is quickly met. This year, visas for the second half of the fiscal year ran out within two months of USCIS accepting applications.
- Senate letter to DHS requesting more H-2B visas
- Bloomberg Law article on the visa expansion
White House Extends Protections for Certain Liberian Nationals. In a March 28 memo, President Trump announced that he would extend Deferred Enforced Departure (DED) protections for Liberian nationals in the United States until March 30, 2020. The announcement came three days before the date originally set for the end of the protections. The unexpected extension, according to the president, was based on the fact that the “overall situation in West Africa remains concerning.”
Due to armed conflict and civil unrest, Liberia was originally designated for Temporary Protected Status (TPS) in 2002 but the designation ended in 2007 after country conditions improved. Since then, former Liberian TPS holders have been protected from deportation under DED, which also offers work authorization. Because of the president’s announcement, Liberians who do not have a separate legal basis to remain in the country past March 30, 2020 will be subject to loss of work authorization and deportation. At least 840 Liberians currently hold DED benefits.
- White House memorandum extending DED for Liberians
- Reuters article on the extension
State Policy Beat in Brief
Arkansas Legislature Passes Anti-Sanctuary Bill. The Arkansas legislature in April passed legislation that will bar “sanctuary” cities from receiving state funding. Governor Asa Hutchinson has said he will sign the bill into law.
The measure would prevent cities from receiving discretionary state funding if they do not fully cooperate with federal immigration authorities or if they block local law enforcement officers from asking individuals about their citizenship or immigration status. While Hutchinson has said he opposes local jurisdictions limiting their cooperation with ICE, he expressed concern about the potential for racial profiling if local law officers can ask about citizenship or immigration status. As such, he urged lawmakers to include language requiring probable cause for law enforcement officers to make those inquires. Legislators rejected the request, but the governor said the bill’s sponsor assured him lawmakers could add the language later.
Currently, there are no sanctuary cities in Arkansas, as defined by the bill.
- Associated Press article on the legislation
- Arkansas Times article on concerns over racial profiling in the bill
New York Hires 19 State-Funded Immigration Attorneys. Governor Andrew Cuomo announced April 4 that New York has hired 19 immigration attorneys to serve as full-time legal counsel in ten regions of the state. Working through the Office for New Americans’ Opportunity Centers, the lawyers will provide free immigration legal services to any immigrant in need of representation in New York, under a model of “universal representation.” The attorneys will partner with five community-based organizations and travel throughout their assigned regions. They will provide direct representation for a caseload of 15 to 20 clients each and conduct legal workshops.
The hiring builds upon earlier New York efforts to extend legal assistance to immigrants, including the Liberty Defense Project, for which the state recently allocated $10 million to provide a range of free legal services to immigrants.
- Governor’s Office press release on the new program
- New York Law Journal article on the Liberty Defense Project
Maryland Legislature Seeks to Expand State DREAM Act. On April 4, the Maryland General Assembly approved legislation to expand the Maryland Dream Act of 2012. Governor Larry Hogan has not indicated whether he intends to sign the bill. The legislation would remove certain restrictions to the earlier law, allowing more unauthorized immigrants to access in-state tuition benefits at state public colleges and universities. For example, the bill would eliminate a requirement from the 2012 law that unauthorized immigrant students must attend a two-year community college before enrolling in a four-year public institution to qualify for in-state tuition. Currently, fewer than 500 students pay in-state tuition rates under the state Dream Act.
- Washington Post article on the expansion