Terry Allen
Activists march on October 28 in Burlington, Vermont, celebrating settlement of federal lawsuit affirming first amendment rights of immigrants.
The election of Joe Biden as the next President of the United States has come as a great relief to Natzieli Alvarez—and nearly 650,000 other undocumented immigrants, who are protected from deportation by the Deferred Action for Childhood Arrivals (DACA) program.
“It seems that the United States in some circumstances understands the importance of the First Amendment, but whenever confronted with a situation where it doesn’t like the type of speech or the speaker, it willfully ignores that obligation.”
As a nine-year-old in 1995, Alvaraz crossed the border with her mother and sister to escape poverty and domestic violence in Mexico. She lived an underground existence until the establishment of DACA in 2012. But for the past three years, President Donald Trump has tried to dismantle this program.
“The only thing I had to get me through was hope; hope that we would get him out. Just the hate he spewed. It was just too much,” says Alvarez, who now lives in Medfield, North Carolina, and is active in the immigrant rights group, Siembra NC.
DACA is one of the protections Biden has pledged to restore. He can do this without Congressional approval. And that’s also true for more than 400 other executive actions that Trump has unilaterally implemented in an unprecedented assault on immigration.
A more challenging task would be Biden’s desire to create “a roadmap to citizenship for the nearly eleven million people who have been living in and strengthening our country for years.”
In the meantime, simply returning immigration to the pre-Trump days won’t suffice. Alvarez, like many activists, wants to be treated the same as everyone else. “We are here to remind people that you can plant roots here because you live here,” she says.
Alina Das, photo provided
Biden should instruct Immigration and Customs Enforcement (ICE), as well as Customs and Border Protection, to stop treating asylum seekers as criminals. And when immigrants do run afoul of the law, that shouldn’t be a pretext for deportation.
“So many individuals who have a single offense from many years ago have gone through the criminal justice system, paid their debt to society, and suddenly find themselves subject to deportation,” says Alina Das, co-director of New York University School of Law’s Immigrant Rights Clinic.
Ravi Ragbir, fifty-six, for example, is now fighting deportation to Trinidad and Tobago, arguing that the Trump Administration has singled him out because of his activism as executive director of the New York City-based New Sanctuary Coalition. Das, who is representing Ragbir, notes that a 2001 fraud conviction was the basis for revoking his permanent residency.
Previous administrations recognized Ragbir’s contributions, and did not go ahead with deportation.
But the Trump Administration detained him for deportation in January 2018. Although Ragbir’s case is still being fought out in the courts, the Second Circuit Court of Appeals recognized that he has provided “plausible—indeed, strong—evidence that officials responsible for the decision to deport did so based on their disfavor of Ragbir’s speech.”
The attempt to deport Ragbir is one of 1,010 retaliatory actions by immigration enforcement in recent years now documented on an interactive website established by the NYU Immigrant Rights Clinic and the New Sanctuary Coalition.
Meryl Ranzer
Ravi Ragbir, holding a New Sanctuary Coalition button, after a check-in with ICE on January 24, 2020 in New York City.
“It seems that the United States in some circumstances understands the importance of the First Amendment,” says Angelo Guisado, a lawyer with the Center for Constitutional Rights. “But whenever confronted with a situation where it doesn’t like the type of speech or the speaker, it willfully ignores that obligation.”
Guisado was one of the lawyers who represented three undocumented workers and the immigrants rights group Migrant Justice in a lawsuit recently settled with the federal government. The three are active in Migrant Justice, which organizes dairy farmworkers in Vermont. They claimed they were singled out for arrest and deportation because of their political activism. An informant was even used to spy on the group.
The lawsuit, filed in U.S. District Court in Burlington, alleged First Amendment and other constitutional violations by ICE. In the settlement, the government agreed to pay plaintiffs a total of $100,000 and not proceed with their deportation. ICE, while not admitting wrongdoing, agreed to remind its agents in the Vermont field office that the First Amendment must be respected.
Biden’s immigration plan calls for ending for-profit detention centers. His platform also seeks an end to long-term detention and a greater use of alternatives.
The Vermont Department of Motor Vehicles was also a defendant because it shared information about applications for Driver’s Privilege Cards with ICE. A 2013 state law allows undocumented immigrants to drive with such a card. This part of the lawsuit was settled last January with tighter restrictions to protect applicants.
“The message is that ICE needs to get its hands off the community because workers understand that what we are doing—organizing and speaking out—that’s something that is constitutionally protected,” says Enrique Balcazar Sanchez, one of the plaintiffs.
Terry Allen
Organizer Enrique Balcazar Sanchez addresses activists in Burlington, Vermont on October 28, announcing settlement of federal lawsuit affirming first amendment rights of immigrants.
Biden should follow the lead of localities and states that have adopted sanctuary laws and policies to prohibit local law enforcement from engaging in various collaborations and information sharing with ICE and Customs and Border Protection.
Das, who is the author of a new book, No Justice in the Shadows: How America Criminalizes Immigrants, says Biden could end the Secure Communities program, which shares fingerprints taken by local law enforcement with ICE, and no longer deputize local police for immigration enforcement. And she calls on the new administration to stop requesting that local jails hold on to immigrants who have completed jail time until they are picked up by ICE agents for detention and deportation.
Biden’s immigration plan calls for ending for-profit detention centers. His platform also seeks an end to long-term detention and a greater use of alternatives.
But there needs to be a much deeper dive into detention. The number of immigrants locked up by ICE—sometimes for years in deplorable conditions—ballooned from a daily average of 34,376 in fiscal 2016 to 54,000 in June 2019.
This sharp increase was fueled by Trump’s “zero tolerance” policy, which doubled down on a punitive trend of charging asylum seekers with criminal violations—such as illegal entry or re-entry into the United States.
Clearly, this is no way to treat asylum seekers, who should not be criminally charged. Nor need they be detained by ICE. Instead, they should be released to sponsors, often family members, while awaiting resolution of their asylum claims.
“In 2020, the idea that you have to lock up a person in a cage as part of a civil proceeding makes no sense,” says Das.
Over the past year, the ICE detention population plummeted to about 17,000 by early November 2020—but for the wrong reason.
Trump’s use of the COVID-19 pandemic as an excuse to close the borders in March to asylum seekers has resulted in nearly 200,000 immigrants being turned away by the end of September without so much as a hearing before an immigration judge.
ICE’s continued detention of a thirty-three-year-old Mexican immigrant, Carolina, shows how entrenched the agency is in the Trumpian mindset.
Carolina, who asked to be identified by first name only, survived severe abuse from her former partner who, according to court papers, beat her so badly that she was in a coma for a month. She and her family were also threatened by a criminal cartel, which tried to extort them. Police would not intervene to protect her, says her lawyer, Zachary Sanders, director of Immigration Legal Services for Catholic Charities Southwestern Ohio.
In 2015, Carolina and her son, who is now fourteen, sought asylum in the United States. She was initially allowed to stay with family in the Cincinnati area. But her arrest for driving while under the influence in December 2019, which resulted in a misdemeanor plea, prompted ICE to detain her at the Butler County Correctional Complex, near Cincinnati.
This past August, Immigration Judge Bruce Imbacuan granted Carolina asylum. He found that she had “credibly testified” about her abuse, which caused traumatic injuries.
Still, ICE has kept Carolina in detention, away from her family, while it appeals the judge’s ruling.
“It’s like hell in here, where I am separated from my son. Life just goes,” Carolina tells The Progressive.
At Butler, she says, guards, have not worn masks, and the inmates often don’t cover their nose and mouth.
She can only hope Biden’s election will bring change. “In my heart, I believe it is better—for everyone.”
Trump’s March border closures followed three years of executive branch directives that have all but blocked the United States from becoming a safe haven for the persecuted.
“It has got to be a restart from essentially a dead stop,” says Kate Jastram, director of policy and advocacy for the Center for Gender and Refugee Studies.
Biden’s campaign platform says that he will rescind a wide range of Trump’s restrictive asylum policies—including the Migrant Protection Protocols, which have forced more than 67,000 asylum seekers to remain in Mexico while U.S. immigration courts consider their cases.
Trump has also reduced to a trickle––about 11,000 for the fiscal year that just ended––the number of refugees admitted from abroad for resettlement. Biden says he’ll increase the annual admissions to 125,000 and end Trump’s “Muslim ban,” prohibitions on issuing visas to people from thirteen nations, many with Muslim majority populations.
Biden must also reopen the borders to asylum seekers, who should be valued as more important than the “essential traffic” that continues to make daily crossings.
“Rather than imposing a ban or suspension on people seeking protection from harm, U.S. authorities should use evidence-based public health measures to process asylum seekers and others crossing the U.S. border,” says a May letter from fifty-seven leading health experts to top Department of Health and Human officials.
Biden has said “not another foot” of border wall will be constructed on his watch and that a government task force will be established to help reunite the 666 children separated from their families by Trump.
And while Biden says he will end prosecution of parents for “minor immigration violations,” such an approach does not go nearly far enough to address an immigration bureaucracy out of control. He should also push lawmakers to rethink how ICE and Customs and Border Protection have trampled on rights and instilled fear in immigrant communities.
As Angelo Guisado of the Center for Constitutional Rights puts it: “We need something that is more in line with our values as a society.”