Immigration Update: August 2022

August provided a stark reminder that nativist politics continue to create significant immigration policy challenges at all levels of government. The governors of Texas and Arizona seek to sow chaos by rounding up and busing migrants to “blue cities” including Chicago, New York, and Washington that lack reception infrastructure. The protracted legal wrangling from efforts by Texas and other states to block the Biden administration’s termination of the Remain in Mexico program has created on-the-ground implementation challenges. Despite the Administration’s issuance of a final rule implementing DACA, the program remains under existential threat in the courts due to lawsuits by anti-immigrant state leaders. And The Atlantic’s Caitlin Dickerson uncovers the authoritative back story on how bureaucratic machinery—and cruel, immoral leaders—implemented one of the most horrifying official government policies in a generation.

• Bused Migrants Remain Underserved and Underfunded

• Remain in Mexico Ends, Challenges Remain

• DACA Regulation and Legal Challenge

• Must Read: The Atlantic’s Retrospective on Family Separation

1. Bused Migrants Remain Underserved and Underfunded

The mayors of New York, Washington D.C., and now Chicago continue to grapple with how their cities should best support the thousands of migrants being bused in from border states. Since early spring, the governors of Texas and Arizona have used migrants as props in their political theater by rounding them up and sending them northward, (falsely) claiming it is the byproduct of President Biden’s “open border” policies.

Sadly, as often is the case, thousands of human beings suffer the effects of these political machinations. Not only have the mayors in these cities struggled with how to best support the arriving migrants, but also to answer the question of who is responsible for doing so. In Washington, Mayor Bowser has maintained that “cities alone cannot solve a broken immigration system,” and has repeatedly requested use of the National Guard, which has been denied. Additionally, Washington Attorney General Karl Racine originally offered grants to groups assisting the migrants and Congresswoman Eleanor Holmes Norton introduced a $50 Million bill aimed at securing additional FEMA funds for migrants arriving in the capital.

The political games of these border governors and the lack of effective policy infrastructure for welcoming recent migrant arrivals throughout the country does nothing to diminish the forces that will inevitably propel more migration throughout our hemisphere. Those migration drivers—climate change, poverty, violence, corruption—are exacerbated by both disinformation and misinformation, propagated by smugglers and others seeking to profit from the vulnerability of this population. A recent investigation explored the many ways in which social media and online sources continue to spread false information to migrants regarding the opportunities, legal pathways, and dangers involved in attempting to cross the U.S.-Mexico border.

Migrant Misinfo: Inside the World of Misinformation Targeting Migrants on Social Media. Credit: Tech Transparency Project.

While disinformation efforts and exploitive criminal enterprises will always remain a challenge, there are clear ways to diminish the risks confronting migrants and to maximize the benefits of their desire to pursue the American dream. That starts by acknowledging that migration will naturally continue to accelerate in the coming decades and by creating legal pathways to make it safe, humane, and orderly.

2. Remain in Mexico Ends, Challenges Remain

In June, the Supreme Court finally ruled that the Biden administration was legally permitted to terminate the Trump-era policy known as Remain in Mexico (aka Migrant Protection Protocols or MPP). That ruling, however, could not go into effect until August, when the District Court formally lifted the injunction blocking the termination. As a result, this month, over 7,000 asylum seekers who had been waiting in Mexico (often in desperate conditions) for permission to present their asylum claims in the U.S. will finally be allowed to remain in the U.S. throughout the duration of their hearings.

Unsurprisingly, given the political and legal whiplash created by this policy, even these important efforts to unwind the policy have proved procedurally opaque for many of the asylum seekers who were caught in its web. Despite the ruling and DHS’s guidance, many individuals remain unclear about their own status. For example, DHS indicated that those in the program would be unenrolled at their next court dates, but some people do not have court dates until 2023 meaning, theoretically, they would be required to wait in Mexico during that period. Others were surprised when they arrived at court in border cities in the U.S. to learn that they had been disenrolled from the program and were free to remain here -- but they had left their personal belongings in Mexico.

Advocates and DHS are working through—and will correct—these and other administrative implementation issues, but they merit highlighting because they shine another light on the wide-ranging consequences of systemic dysfunction and the need for large-scale reforms.

3. DACA Regulation and Legal Challenge

On Aug 24, 2022, USCIS issued a Final Rule to codify DACA into federal regulation. Although the rulemaking was a welcome step in the administration’s efforts to guarantee some degree of protection to current DACA recipients, the rule does not resolve the challenges facing Dreamers, young immigrants brought to live in the U.S. by their parents as children.

The Rule, set to take effect in October, was adopted under a dark legal cloud that continues to hover over the program. Since President Trump attempted to rescind the DACA program in 2017, it has been the subject of ongoing litigation. The many twists and turns that have left DACA recipients in legal limbo are reaching a climax in the courts. The 5th U.S. Circuit Court of Appeals is expected to rule any day now on the legality of DACA, including whether the newly issued rule strengthens the administration’s legal defense of the program.

Unfortunately, most experts believe that the conservative 5th Circuit will conclude (wrongly) that the program lacks a legislative foundation and therefore that the rule cannot save DACA. Likewise, the belief by legal experts is that the Supreme Court will uphold such a ruling during the Court’s next term which opens in October. Bluntly, and tragically, there is a high likelihood that the DACA program will be struck down by June 2023.

Of course, litigators at the Department of Justice and our partner organizations will continue to fight to protect the program, and we will continue to explore every opportunity to ensure protection and certainty for DACA recipients and all Dreamers. Most importantly, we will not relent on Congress, which ultimately must pass legislation to permanently protect these colleagues, friends, neighbors and family.

4. The Atlantic’s Retrospective on Family Separation

In September, The Atlantic published what its editor referred to as the longest piece ever published by the 165-year-old news magazine. “The Secret History of Family Separation,” authored by Caitlin Dickerson, provides a damning retrospective on the federal government’s entanglement with the policy of separating immigrant families as an attempt to deter immigration. Dickerson describes in painful detail the Trump Administration’s deliberate decision to separate children from their parents without any plans or possibility of ever reuniting them. The policy and its outrageous impacts at a larger scale came to light for most of the country in May of 2018, which led to outcries, protests, and lawsuits condemning the practice, a rare moment of unity in a deeply divided America.

Yet Dickerson’s piece telescopes into the history of the policy, demonstrating that government officials had been test-driving this policy much earlier than when it hit the news cycle. It also reveals the insidious, horrific, and callous approach to migrant deterrence as a zero-sum game that senior officials in the Trump administration adopted to make good on Trump’s campaign promise to seal off the border. The singular objective was deterrence at whatever cruel cost to human life and mental well-being, irrespective of the impact on young children who were traumatized, and will perhaps remain traumatized forever, as a result of this horrific policy.

And yet, as evidenced by interviews with so many migrants who sought to cross the border after news of family separation became public, they were still willing to take the chance of being swept up in this disastrous policy because the alternative was untenable. This finding should put to rest arguments that we can deter our way to a functional immigration system. This central lesson—that enforcement-only strategies are ultimately a dead-end—is why we are working to shift the border debate from one exclusively focused on prevention and deterrence at the border to one that equally emphasizes the importance of creating meaningful alternatives for would-be migrants.

Migration as a form of adaptation to existential challenges has always been part of the human experience and we know that phenomenon will increase in the years and decades to come. Some politicians treat this as a threat when it is, in fact, a unique opportunity for the United States. Despite communicating deeply mixed political signals about immigration, America stubbornly remains a beacon for people seeking an opportunity to build a better life. Many countries will face massive population declines in the coming years, but our competitive advantage—unless we continue to squander it—remains our attractiveness as an immigrant destination. That reality must propel us to build the policies, infrastructure, and political will to welcome future newcomers and treat those that are already here with respect and dignity.

In solidarity,

Marshall Fitz
Managing Director of Immigration