Stopping construction of the border wall, as President Joe Biden has promised, would be a step toward changing the mindset that treats immigrants as criminals. But it would only be a start.
“The problem is not the folks who come from other countries,” says immigrant rights activist Lilian Serrano. “The problem is that, as a country, we are not treating them with dignity and humanity.”
Biden has called for an end to Trump’s draconian immigration policies, but some of the changes will be on a slower track.
Serrano, thirty, was born in the United States but spent most of her childhood in Tijuana because her parents, who are from Mexico, did not want her to face the same discrimination her father experienced as a student in Los Angeles. In 2009, she started Alianza Comunitaria, a grassroots group, to alert the public to Border Patrol checkpoints that instill fear in immigrant communities.
Ending these checkpoints has not been part of Biden’s immigration policy reform agenda. But Serrano, chair of the San Diego Immigrant Rights Consortium and co-chair of the Southern Border Communities Coalition, is urging him to do so, sending an important message on the need to demilitarize the border.
Ernesto, an asylum seeker from Honduras who asked that his last name not be used to protect his safety, learned how hostile the border has become this past August. In a recent telephone interview, he tells how he fled his small town in Honduras after repeated threats from local police who objected to his efforts to expose government corruption.
But as soon as Ernesto crossed the border from Mexico into Arizona near Nogales last August, he was detained by Border Patrol agents. Within four hours, Ernesto was returned to Mexico. He is now back in Honduras, living in fear.
“They didn’t review my case,” says Ernesto, thirty-seven, a victim of Donald Trump’s March 2020 border closures. With the exception of unaccompanied minors, asylum seekers are being summarily rejected—without judicial review—while “essential” commercial vehicles cross unimpeded.
Biden has called for an end to Trump’s draconian immigration policies, but some of the changes will be on a slower track. Susan Rice, Biden’s domestic policy adviser, told the Spanish wire service EFE that the border will not be suddenly fully open.
And that statement only adds to the skepticism that already exists.
“He’s making a lot of promises. I’ll wait and see what he actually makes happen,” says Victor, a leader of Alianza Agrícola, a group of undocumented farmworkers in western New York.
Victor, who like other undocumented immigrants quoted in this story asked that his last name not be used, for fear of deportation, continues to work seventy-nine hours a week on a dairy farm, where he begins milking cows at four in the morning. He remains reluctant to venture into the community until he has legal status. “We will always have fear,” says Victor. “No President will be able to protect us without a law.”
Immigration policy in the United States has long been shaped by racism and xenophobia—trends that Trump took to a new low, with an unprecedented assault on immigration. His more than 400 anti-immigrant executive orders have left Biden with a tangled mess to undo. This includes a sweeping executive action finalized in December that took a final shot at the asylum system in more than 400 pages of new regulations.
Andrew Schoenholtz, a professor at Georgetown Law and a co-author of the forthcoming book The End of Asylum, sums up the Trump Administration’s thinking: “Hey, let’s create a high bar and that will eliminate most of these people because most of the people do not come with evidence—notes from whoever is persecuting them.”
A big problem is that undocumented immigrants charged with a crime or other violation, no matter how minor, are not only punished in the criminal justice system but also turned over to ICE for deportation.
Schoenholtz, who co-directs the Center for Applied Legal Studies, a clinic in which students represent refugees seeking asylum, says the new regulations make it highly unlikely that Central Americans can pass the initial screening to determine if they have a “credible fear” of persecution. They would typically be disqualified from asylum if they had traveled through Mexico without seeking asylum there first. This provision is repeated in another regulation recently finalized.
Immigrant activists have filed at least three lawsuits challenging these regulations, which also strictly limit what qualifies as persecution and allow immigration judges to dismiss cases without a hearing.
“Have they ended eligibility for most asylum seekers?” Schoenholtz asks. “Yes.” Team Biden must not only seek to repeal these regulations—a lengthy administrative process—but also join in the court challenges.
On January 8—three days before the new regulations were to take effect—a federal judge issued a nationwide preliminary injunction stopping them from being implemented.
Beyond simply reversing Trump, Biden must recast immigration more broadly. “We need to dismantle the structures that were established after 9/11,” says Azadeh Shahshahani, legal and advocacy director of Project South, an Atlanta-based social justice organization. “We are framing the issue of immigration and immigrant rights based on Homeland Security.”
Consider that the budget for Customs and Border Protection ballooned from $6.3 billion in fiscal year 2005 to $17.4 billion this past fiscal year, while Immigration and Customs Enforcement (ICE) shot up from $3.1 to $8.4 billion, according to the Migration Policy Institute. What’s more, Congress approved roughly the same spending levels for fiscal year 2021.
High on Biden’s immigration agenda was ending Trump’s attempt to dismantle Deferred Action for Childhood Arrivals (DACA), which has provided protection from deportation to almost 650,000 immigrants. The “Muslim ban,” which restricts visas for thirteen nations, many predominantly Muslim, was also on Biden’s rescind list. And so was Trump’s expanded definition of “public charge”—a provision in immigration law denying permanent residency to people who have received public assistance.
Biden has also promised less reliance on detention and an end to workplace raids. And he says he’ll introduce legislation to create a roadmap to citizenship for the nearly eleven million undocumented people now living in the United States.
But for any of this to happen, there needs to be a strong push from progressives. “They are going to have to make as much use of their pulpit as the Trump Administration did in doing the harm,” says Jennifer Piper, program director for the American Friends Service Committee in Colorado.
Clearly, a return to pre-Trump days won’t suffice. After all, more than three million deportations occurred when Biden was Vice President. And while Alejandro Mayorkas, Biden’s choice to head Homeland Security, wants the United States to be a “country of welcome,” he, too, can’t merely revert to the practices in place when he held high-ranking Homeland Security positions under President Barack Obama.
“A lot of the fear and racism that we see toward migrants started to ramp up in the 1990s, with this policy of prevention through deterrence,” says Tracey Horan, associate director of education and advocacy for the Kino Border Initiative, which operates in both Nogales, Mexico, and across the border in Nogales, Arizona.
The group helped Ernesto, the Honduran asylum seeker rejected by Border Patrol agents.
Ernesto came to Kino with head wounds—inflicted, he says, by Mexican police after he was returned by Border Patrol. Police in Mexico hounded him because he had filed a complaint about a Mexican migration station being involved in the prostitution of migrant women.
The border initiative, which is part of the #SaveAsylum coalition, had asked Homeland Security to look into how Ernesto’s attempt at asylum was handled. Homeland Security responded by saying the complaint was registered in its database but no further action would be taken. Coalition members have protested the mistreatment of asylum seekers.
On the legislative front, an important bill, New Way Forward, will be reintroduced in the 117th Congress to take immigration out of the grip of criminal law. After all, it should not be a crime to seek safe haven in the United States.
First introduced this past Congress, New Way’s backers include Democratic Representatives Pramila Jayapal of Washington, Karen Bass of California, and Jesús García of Illinois. These and other representatives including Alexandria Ocasio-Cortez have also produced a Roadmap to Freedom Resolution setting forth a progressive vision on immigration.
A big problem is that undocumented immigrants charged with a crime or other violation, no matter how minor, are not only punished in the criminal justice system but also turned over to ICE for deportation.
Among other things, New Way Forward would:
- Repeal federal laws that criminalize unauthorized entry or re-entry into the United States.
- End mandatory immigration detention and mandatory deportation.
- Restore judicial discretion, so that immigration judges can consider individual circumstances.
- Phase out for-profit prisons and the use of county jails during immigrant deportation proceedings. As of last May, more than 70 percent of ICE’s detained immigrants were in privately run prisons.
“The system does not recognize us as human beings [but] as commodities,” says Donald Anthonyson, director of Families for Freedom, the New York City–based group led by people directly affected by the detention system.
In 2004, Anthonyson found himself in a deportation proceeding for a 1986 misdemeanor conviction. His court challenge to deportation restored his permanent residency status. The sixty-one-year-old Anthonyson went on to lead this group, which provides an important pipeline for detainees exposing abuses.
Biden calls for ending for-profit detention centers and long-term detention, as well as a greater use of alternatives. Now is the prime time to do that—and much more.
The ICE detention population has risen from a daily average of 6,785 in 1994 to about 54,000 in June of 2019. By early January, the detainee population had plummeted to about 16,000, largely as a result of Trump’s closing the borders last March and continued deportations.
Still, the ICE detention budget agreed to by Congress for this fiscal year provides funding for 34,000 detainees, according to Detention Watch Network.
“People should be able to go through their immigration cases with their loved ones, in their community, not behind bars,” says Setareh Ghandehari, advocacy manager for this network.
An example of unnecessary detention—and possible deportation—is Abigail Hernandez, twenty-four, now completing her third year of ICE detention in upstate New York.
In February 2018, when Hernandez was twenty-one, she made a big mistake. She posted a message on the Facebook page of the Rochester high school she had attended. It said: “I’m coming tomorrow morning and I’m going to shoot all of ya bitches.”
She did not pose a genuine threat. The local DA’s office let her plead guilty to third-degree falsely reporting an incident, a misdemeanor. County Court Judge Vincent Dinolfo, in delivering his sentence of three years of probation, said he hoped the resolution of this matter would help her immigration case. “I hope it doesn’t cost you your place here among us, but we have no control of that,” the judge said.
But it has. Hernandez was snatched up by ICE agents from a jail on the outskirts of Rochester, New York, as she was about to be released in her criminal case, and taken to an ICE detention facility about forty miles away. She has been in ICE custody ever since. Now she is on her last leg of appeals. Because of intellectual disabilities, Hernandez could be especially vulnerable if deported to Mexico, which she left at the age of four.
Activists have rallied behind Hernandez and given her a support system. That would be lost if she were deported to Mexico. The Biden Administration should not allow such cruel detentions and deportations.
Living in the shadows, as immigrants to the United States have been forced to do, has taken its toll in a variety of ways, all made worse by the COVID-19 pandemic.
Some undocumented immigrants have been reluctant to seek medical care after getting sick with COVID-19. Piper, the AFSC director in Colorado, tells how a longtime permanent resident was too scared to apply for benefits such as food stamps that she qualified for and needed. In Mississippi, Juana and her husband, Freddy, who are undocumented and from Mexico, both lost their jobs for about three months last year because of the pandemic. Nevertheless, they didn’t apply for the food stamps their three U.S.-born children could have received.
Trump’s 2018 “public charge” rule created many more reasons to deny permanent residency for those immigrants who might need public assistance. But, Juana says, “Even if President Biden repeals the public charge, I’d still have concerns.”
Victor, the western New York dairy farm worker and advocate, helps support his wife and three children in Mexico by working long hours. He has not seen his family in sixteen years. “We are working to support this country but don’t have any federal support,” says Victor, forty-seven.
Besides doing essential work, undocumented workers contribute $11.7 billion a year in state and local taxes, according to a 2017 estimate by the Institute on Taxation and Economic Policy.
In rethinking immigration, Biden must also consider how climate change has become a growing factor in driving migrants from their homelands. Legislation introduced last Congress would amend the Immigration and Nationality Act to include the category of “climate-displaced person”—at least 50,000 of whom would be allowed into the United States each year.
As a candidate, Biden floated “a comprehensive four-year, $4 billion regional strategy to address factors driving migration from Central America.” He must also consider how U.S. foreign policy and corporations have destabilized Central American nations, exploited natural resources, and contributed to climate change.
John Walkey of the Massachusetts-based GreenRoots environmental organization raised this issue at a recent webinar about climate and migration convened by Lawyers for Civil Rights.
“It’s more about the United States accepting responsibility for its hand, along with the global Washington consensus, about how resources have been used and abused in the Global South,” said Walkey. “There is a big push to look out and receive the folks in need but there should also be a moment of reflection and how are we a part of that.”