Welcome to IRTF’s April 2022 newsletter on Migrant Justice and the current situation at the US-Mexico border!
In recent weeks, Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) have apprehended more than 13,000 migrants a day, according to the New York Times. Most are caught and either expelled immediately or put into overcrowded detention centers to await their immigration hearings, a process that can take several years. As the Biden administration has announced that it will end the use of a public health proclamation known as Title 42, and has started plans to reform the U.S. asylum system, some expect that the numbers of people coming to the border will rise in the coming months. But this argument, currently often used by politicians opposing immigration and the end of Title 42, does not mean that overhauling the asylum system is a mistake. It shows that it is long overdue. Let us give you an overview of recent updates on U.S. immigration and what has been happening at the southern border!
In this newsletter, please read about
- Biden’s new Asylum Process: an Overview and Concerns
- Expelling migrants in the name of health measures: The End of Title 42
- Immigration and Customs Enforcement (ICE): The Dangers of a Not so ‘Smart Border’
- Take Action: Tell Congress to Demand Title 42 is Ended and the Asylum Process Restored!
THE BIDEN ADMINISTRATION IS OVERHAULING THE ASYLUM PROCESS: AN OVERVIEW AND CONCERNS
After almost 15 months in office, the Biden administration finally initiated the long promised overhaul of the US asylum policies, changing the way asylum cases are being processed in the hope that it will help counteract the vast immigration court backlog of over 1.7 million pending cases nation-wide – with 40% of those being political asylum cases. But besides the outlook that asylum cases might now be processed much faster, there are several concerns with this new asylum process, as it poses great challenges for immigrants seeking asylum, for example when looking for crucial legal support. Let’s take a look at the policy changes the Biden administration is proposing to make, and what challenges they might bring.
How the new asylum process works:
Up until now, the majority of asylum seekers arriving at the southern border were placed into “expedited removal” and would have to go through a two-step asylum process. First, an asylum officer would determine in an interview whether the asylum seeker had a “credible fear” of persecution. After passing the interview, the individual would be sent to an immigration court and would have to submit a formal asylum application in English. Only a few migrants arriving at the border were able to skip the credible fear interview and go directly to immigration court.
Under the new asylum policy, migrants placed into “expedited removal” who are able to prove a sufficient fear of persecution in their home country would no longer go directly to court. Their application would not be reviewed by an immigration judge anymore but by a U.S. Citizenship and Immigration Services (USCIS) asylum officer. About 30 days after the initial credible fear interview, the asylum-seeker would get an “asylum merits interview” where a USCIS asylum officer would be authorized to grant the individual asylum immediately if the need was sufficiently demonstrated. If that is not the case, the asylum seeker would then be referred to an immigration judge to review the denial within 90 days–much, much faster than the 2-5 years from start to finish in the current immense backlog of cases.
Within 30 days of the referral from USCIS to immigration court, the asylum seeker would have their first hearing in front of a judge. One month later, they would have the possibility to submit any new evidence in their case, and only 30 days after that, which brings us to 90 days in total, their trial on their asylum application would be held in front of the judge. Except for the asylum seeker’s option to request 30 more days to prepare for court, the rules aim at making it difficult to close the case any later than 90 days after the asylum merits interview.
Positive: A positive change with this new asylum plan is that it will close a loophole used by the previous administration to allow CBP (Customs and Border Protection) agents to conduct credible fear interviews and make initial decisions on an individual’s right to seek asylum. Since CBP officers are not trained in U.S. asylum law, their own biases and political opinions come into play, resulting in false assessments and deportation orders despite a legitimate reason to stay in the U.S. As the responsibility for conducting both the initial credible fear interviews as well as the asylum merits interviews would be taken over by USCIS in this new asylum system, it could assure that every migrant’s asylum claims are heard and evaluated by a trained USCIS officer who knows the country’s asylum law, allowing for a hopefully more neutral asylum process and for the loophole to be closed.
Another positive: One other positive aspect, and really the main improvement with the Biden administration’s asylum overhaul, is the timeline of asylum cases. Under the new procedures, asylum seekers are supposed to have a final decision on their immigration status, reviewed by an immigration judge, within 90 days of arriving at the border and conducting the initial credible fear interview. This would allow migrants to gain legal status in the U.S. much faster, not keeping them in this stressful stage of uncertainty for too long. Plus, some asylum seekers who would be granted asylum immediately after their asylum merits interview (currently about 22% of asylum claims are approved by the USCIS after this second interview ) would be able to skip the immigration court hearings, saving them a lot of time and effort.
Negative: But speed is not always beneficial in this process. Many immigrant advocates and attorneys fear that this rapid timeline of hearings will make it very difficult for the asylum seeker to obtain legal assistance in their case. Asylum cases require an extensive amount of legal work and usually take weeks, even months, to prepare for in order to gather evidence and witnesses and to properly prepare the asylum seeker for the hearings. This very short timeframe from the initial interview until the first hearing will make it hard for immigration lawyers to work on more than a few cases, and even harder for the asylum seeker to find a legal representative that will take on their case and to gather the necessary evidence to support their asylum claim.
Different reports show how vastly the chances of a successful immigration hearing and obtaining legal status in the U.S. increase when the asylum seeker has an attorney to give them legal advice. This means that if fewer people will be able to successfully find a legal advisor in time for their hearing, more asylum cases will end up being denied, and more people will be processed for deportation. So really, although this new system should increase the efficiency of the immigration court and minimize the nation’s backlog of 1.7 million pending cases, this new asylum process that the Biden administration is proposing might turn into a humanitarian catastrophe, denying migrants their legal stay in the U.S. even though the threat is clear, just because they did not have enough time to obtain legal support and build their case.
Another negative: Additionally, this promised new efficiency of the asylum system might not be so easy in reality, as the new asylum plan means that the government would need to hire at least 800 new asylum officers who will be playing a more important role in the process of seeking asylum (e.g., by having authority to initially grant or deny someone asylum in the asylum merits interview). And although this new process is set to work off some of the backlog from the immigration courts, it might just increase the backlog in cases at USCIS, as they will have to conduct interviews for the around 75,000 new asylum applications coming in every year. This would make it significantly harder to stay in this timeframe of 90 days.
While we can appreciate the efforts the Biden administration is making to overhaul the asylum system and decrease the backlog of cases, it is important to note that this focus on speed rather than due process can be a matter of life or death for many asylum seekers. When they pass the credible fear interview and are granted asylum right away, this new asylum process works out great as it adds one less case to the 1.7 million waiting for an immigration court hearing and the asylum seeker is released shortly after arriving at the border. But in (the majority of) cases where the individual does have to go to immigration court and has to find a legal advisor within 30 days to increase their chances of winning the case, the new procedures prove to be counterproductive, not allowing for enough time to prepare and thorough processes.
So as we applaud Biden on keeping his promises of reforming the U.S. asylum system, let us take this new plan with a grain of salt and hope that in the month remaining before the finalization of the rule, the administration will make changes to address the concerns being raised by immigration advocates and attorneys.
Sources: Immigration Impact, New York Times, Boundless, Quixote Center
THE END OF TITLE 42: WHAT HAPPENS NOW?
On March 20, 2020, the Department of Health and Human Services (HHS) issued an emergency regulation, called Title 42, which permits the Centers for Disease Control (CDC) to prohibit the entry of individuals into the United States when there is “serious danger” of the introduction of a disease into the United States. The rule allows any CBP (Customs and Border Protection) agent to implement any such order issued by the CDC. In late March 2020, the Border Patrol began sending most Mexican, Guatemalan, Honduran, and Salvadoran families and single adults back into Mexico under Title 42.
The official terminology is “expulsion,” not deportation.
The expulsion of migrants under Title 42 can be tracked by interpreting the number of expulsion air flights. According to statistics gathered and analyzed by the nonprofit Witness at the Border, there have been 7,617 total ICE air flights since Biden’s inauguration over a year ago, of which 1,341 were removal flights to countries accepting Title 42 flights (Honduras, Guatemala, El Salvador, Haiti, Brazil, Colombia). In March 2022, there were a total of 624 ICE air flights, up 20% (+105 flights) from the previous month, and up 57% from March of last year. As more countries are now accepting Title 42 expulsion flights, the Biden administration is able to expel more and more migrants from the border.
Removal Flights: Expulsion Flights, Deportation Flights
Hundreds of people are “removed” from the US each month either by expulsion (under Title 42) or deportation. Some are lauding the decrease in deportations over the past year. But too often overlooked is the significant increase in the number of Title 42 expulsions.
In March, flights to those countries accepting Title 42 flights made up 90% of all removal flights. In March, most of the removal flights went to Guatemala (41), Honduras (34), El Salvador (13), Haiti (10), and Colombia (10).
A recurring trend with Title 42 flights is that, as soon as a country starts accepting Title 42 flights at their airports, the expulsion rate of families and single adults from that country increases significantly because the number of ICE air flights to that country increases. For instance, Colombia began accepting Title 42 flights in March; ICE air flights to Colombia went up from just two in February to ten in March. From news reports in Colombia, a number of about 100 people on board each of these flights is estimated. This means that in just the last month, 1,000 people were expelled to Colombia, a country on the lower end of total removal flights.
The End of Title 42
Now, after two years and over 1.8 million expulsions of migrants, the Biden administration, confirmed by the Center of Disease Control (CDC), announced that Title 42 will end on May 23, 2022. The Trump administration reinstated this 80-year old emergency regulation, ostensibly as a means to protect people in the US from further spreading of the COVID-19 virus, though it became very clear very quickly that this was never really the intention behind Title 42. Other than giving migrants at the border a really hard time and initiating a vast number of “expulsions” back to dangerous countries (see ‘removal flights’), it did nothing to protect the nation’s public health.
But already, attorneys general in three states (Arizona, Missouri, and Louisiana) filed a joint lawsuit against the CDC’s plans to terminate Title 42 at the end of next month, claiming that this change will lead to an increase in border crossing attempts over the next months and therefore “the abrupt elimination of the only safety valve preventing this Administration’s disastrous border policies from devolving into an unmitigated chaos and catastrophe”.
And while an increase in migration at the border is almost certain in the weeks and months following the end of Title 42, rather than fearing for the U.S. national safety – which was never really threatened by the migrants fleeing actually dangerous countries to seek safety in the U.S. – this expected trend should function as a warning sign to us. It demonstrates to us, and the U.S. government, how many people have wanted or attempted to flee their home countries because of persecution, poverty or death threats but were pushed back at the border or didn’t even try because Title 42 denied them a fair asylum process. It shows us how many people the U.S. Border Patrol has denied access to a safer place over recent years, and that is why there will be a higher number of border crossings in the following months, and why it is so important to take those people in and grant them due process.
Sources: Witness at the Border, American Immigration Council, Austin Kocher
IMMIGRATION AND CUSTOMS ENFORCEMENT (ICE): THE DANGERS OF A NOT SO ‘SMART BORDER’
The wall along the U.S.-Mexico border is literally, physically crumbling. But the Department of Homeland Security (DHS) is not wasting any time re-stacking stones and wire. Rather, they are expanding their vast surveillance system known as the digital border wall. This “smart border” has been steadily built and updated over the last four presidential administrations, executed by and supported by both Republicans and Democrats. Even the Biden Administration – despite promises to set an end to the messy and, in many cases, deadly immigration policies implemented by Trump – has expressed plans to increase the digital border wall funding, claiming that it will be a “gentler” and “smarter” alternative to the physical wall.
But the opposite is happening. Funding and increasing the use of surveillance technologies along the border will only contribute to the ongoing expansion of surveillance on immigrants and local communities within 100 miles of the border, and rights advocates have reacted with serious concerns about personal safety and privacy in that region.
Still, last year the DHS received more than $780 million in federal funding, and its subsidiary agency Customs and Border Protection (CBP) has been signing multi-million dollar contracts with big tech companies like Palantir and Amazon Web Services to develop cutting edge, for-profit surveillance tools and systems to more easily and effectively monitor, detain and expel migrants whose movements along the border are recorded with those technologies.
What makes up the digital wall?
The digital border wall is made up of several advanced surveillance technologies like aerial drones, surveillance towers, and underground sensors that can precisely detect any living beings and vehicles across hundreds of miles.It is not a stationary wall where surveillance happens, like a surveillance camera attached to a store. It is an intricate system of surveillance that can be expanded anywhere in the 100-mile border zone, where ⅔ of the US population resides. It is the license plate scanners and databases with millions of entries of biometric data. It is DNA collected at the border. It is the ability to hack and confiscate smartphones and other devices for several days without having to provide an explanation. It is the permission granted to DHS to monitor almost all activity “along the border” (which is now a 100-mile zone). For migrants seeking refuge in the U.S., the “smart border” is not only a matter of privacy but of life and death.
Here are a few of the technologies that ICE and CBP are currently using for border surveillance:
Automated License Plate Recognition (ALPR) is a surveillance technology consisting of cameras fixed on top of street lights or vehicles that capture data about vehicles and their passengers, including the date, time, and location of the picture taken. The cameras are capable of logging data on passing and parked vehicles, and the data is used to determine the travel patterns of individual drivers, tracking the car owner’s movement and sharing that information across different law enforcement agencies.
Surveillance tower systems are used in a variety of settings and formats along the border, mostly in the southwest. There are the so-called Integrated Fixed Towers (IFTs), developed by the Israeli military contractor Elbit Systems, that can be up to 140 ft tall and are equipped with radars and day and night cameras to track and identify people as far as six miles away (as of 2019, 55 IFTs were deployed in Arizona alone). There is the Remote Video Surveillance System (RVSS), a network of smaller, relocatable surveillance towers that use color and infrared cameras with integrated video analytics to allow CBP to monitor both urban and rural areas in the border zone. (General Dynamics has a $153 million contract through 2023 to expand the system.) And there is the Mobile Video Surveillance System (MVSS), consisting of telescoping poles that are mounted on the back of a truck and extend up to 35 ft high. MVSS units are equipped with thermal and video cameras and have a range of up to six miles. Between 2018-2020, CBP deployed 58 MVSS units along the border in Texas and signed an $80 million contract with the tech company Tactical Micro to expand that system to 165 units.
The most recent, and thus most high-tech surveillance towers are the 33 ft tall, relocatable Autonomous Surveillance Towers that are deployed by Anduril Industries, and use artificial intelligence to identify and classify items on camera. These systems have the ability to distinguish between people and livestock, and can identify and capture human faces.
Drones have been used by CBP for years to surveil the southern border, and have been updated as new technologies emerged. Since 2006, the 36 ft long Predator B drones, a version of the U.S. military’s reaper drones, have been used for border surveillance, with each flight hour costing about $12,000. The private company General Atomics currently has a contract with CBP worth $250 million through 2023 for their operation and maintenance.
Additionally, by 2020, CBP was using more than 135 smaller drones called small unmanned aerial systems (SUAs), that are able to collect images and videos and can sometimes even detect movement on the ground to track people in hard-to-access areas. CBP has expressed plans to expand their drone usage and to even possibly implement drones that have integrated facial recognition technology.
Biometric data, meaning fingerprints, DNA, facial recognition, and other physical characteristics used to identify people, is being used extensively by DHS, and the agency is rapidly expanding the types and amounts of biometric data points it collects, even in places like airports and often without permission. When people are apprehended at the border, their biometric data is collected, including fingerprints, iris scans, DNA samples and much more. The DHS’s current biometric storage system, the IDENT database, holds information on over 260 million people, and there are agreements on sharing that data with Mexican immigration authorities. DHS is currently planning to transition from their IDENT database to a new, centralized database called the Homeland Advanced Recognition Technology System (HART), hosted by Amazon Web Services. This new system will collect personal information from federal agencies like ICE, CBP, FBI and the Department of Defense, including foreign governments, and share that information across all of these agencies.
The Intelligent Computer Aided Detection (ICAD) system operates a network of underground sensors and cameras installed along the U.S. border that detects the presence or movement of individuals and refers that information to the U.S. Border Patrol. This notifies CBP operators where the alarm occurred, and those operators give direction to agents in the field to respond to the alarm and apprehend the people whose movements were tracked.
While all of these data collection and surveillance technologies are said to be for the purpose of securing the border, local communities living within the border zone are also seriously affected by those tools. CBP defines the border zone as anything that is within 100 miles of a land or coastal border. This effectively means that about two-thirds of the U.S. population, including nine out of the ten largest cities in this country, are located in that border zone, making them subject to DHS surveillance systems. Not only have border communities been surveilled extensively without any reasoning, CBP drones have also been used on Black Lives Matter protesters in several cities nationwide, harming citizens far into the country, especially black, indigenous, and communities of color.
The new border wall is not just stones and wire, it is an expanding and federally funded network of high-tech surveillance tools that pose serious threats to the personal safety and privacy of those affected by it. The system is designed to detect, monitor, and act on every single movement that can be tracked along the border, leading to an increasing amount of arrests and deportations. This “smart” border is, in fact, deadly, as it not only results in more individuals being expelled back into countries where threats and persecution awaits them, but they are also pushed into taking remote and more dangerous crossings, making it more likely for the migrants to suffer heat strokes, dehydration, and death. This “smart” border is actively costing people lives, and it is violating the rights of privacy of those living in border communities as anyone within 100 miles of the U.S. border has become a target for increasing amounts of surveillance and enforcement.
Sources: No Tech for ICE, tni
Want to find out more about the conditions at the southern US border?
TAKE ACTION NOW
Now that you are up to date on the issues at and around the southern border of the U.S., here is what you can do to take action this week and stand up in solidarity with migrants and their families:
CDC and President Biden announced Title 42 would end on May 23. But now, the Biden administration’s decision to end Title 42 is being attacked. Send a pre-written email to Congress to demand Title 42 is ended and the legal asylum process is restored!
Members of Congress avoid accountability for the way their funding decisions impact communities. Sign this petition and participate in demanding that Congress cut funding for ICE and CBP and to defund hate!
Tech companies are building the tools used to surveil, incarcerate, and deport our neighbors from our communities. Send a pre-written or personalized message to Tech companies to stop powering ICE during the COVID-19 pandemic!