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October 2019, Volume 25, Number 4

Central Americans, Politics

A record 390,308 people traveling as families entered the US illegally in the first nine months of FY19, plus 63,624 unaccompanied children under 18. Most are from Central America. In FY18, some 116,808 Guatemalans, 77,128 Hondurans, and 31,636 Salvadorans were apprehended just inside the Mexico-US border.

The 1997 Flores agreement that settled litigation between migrant advocates and the government over the treatment of foreign children who enter the US illegally or apply for asylum limits unauthorized children to 20 days in detention, so most are released with their parents to join US relatives.

Flores dealt with teens but not families who entered the US illegally. In 2015, a federal judge ruled that Flores also prevents the detention of children for more than 20 days who arrive in the US with their parents, and the Ninth U.S. Circuit Court of Appeals upheld this maximum 20-day detention ruling in 2016.

The Obama administration responded with a catch-and-release policy that involved apprehending families with children, processing them, and releasing them to US relatives until immigration judges decide their asylum applications. The Trump administration in May-June 2018 separated parents from their children in order to satisfy Flores by detaining only the parents. However, family separation was ended after a public outcry.

DHS in August 2019 announced plans to terminate the Flores agreement by holding families together in detention until their cases are resolved, arguing that Flores acts as a magnet for illegal migration. California filed its 57th suit against the Trump administration over this planned family detention policy in August 2019; 13 of California's suits against the Trump administration involve immigration. A federal judge in September 2019 ruled that only Congress can change the Flores agreement, drawing a rebuke from President Trump and a promise to appeal.

Apply Abroad. DHS and DOJ issued regulations July 15, 2019 that prohibit foreigners who travel through Mexico from applying for asylum in the US. Instead, foreigners who are seeking refugee status are expected to apply in Mexico.

The new policy aims to "deter aliens without a genuine need for asylum from making the arduous and potentially dangerous journey from Central America to the United States." The regulation was justified by the fact that less than 20 percent of Central American asylum seekers are recognized as refugees.

Under the new policy, Hondurans and Salvadorans must apply for asylum and be denied in Guatemala or Mexico before they are eligible to apply in the United States, and Guatemalans must apply and be denied in Mexico before applying in the US. Migrant advocates sued to block the implementation of the new regulation, asserting that all foreigners who reach US soil are entitled to apply for asylum.

A federal judge in Washington DC on July 24, 2019 refused to issue an injunction to block the apply-abroad rule from taking effect, but a federal judge in San Francisco agreed with advocates and issued an injunction to block the apply-abroad rule. The US Supreme Court reversed the San Francisco judge, allowing the apply-abroad regulation to go into effect.

In September 2019, there were over a million cases pending before immigration courts, making the average wait between filing an asylum claim and a decision over 700 days.

Since January 2019, many adults who enter the US illegally or at ports of entry and apply for asylum are required to wait in Mexico under the Migrant Protection Protocol or Remain in Mexico program. Some 38,000 foreigners, mostly Central Americans, were waiting in Mexico in September 2019.

Immigration judges sometimes handle Migrant Protection Protocol cases in groups, granting asylum to less than 15 percent of Central American applicants. Advocates complain that requiring Central Americans to wait in Mexico means they do not have access to US lawyers to help them to prepare their cases.

Another new DOJ-DHS regulation requires the USCIS asylum officers who first interview asylum seekers to apply a tougher standard when evaluating applicant claims of a "credible fear" of persecution at home. Over 75 percent of applicants currently pass this credible fear test.

Attorney General William Barr in July 2019 overturned a decision of the Board of Immigration Appeals that allowed a Mexican man to apply for asylum because his father was targeted by a Mexican cartel. In 2018, the Trump administration decided that Central American women who were the victims of domestic violence would no longer be considered members of a particular social group and allowed to seek asylum in the US.

Asylum seekers are foreigners in the US who have a credible fear of persecution in their country of citizenship because of their race, religion, political opinion or membership in a particular social group. The social group definition is most elastic, and Barr's decision means that family ties can no longer be considered membership in a particular social group for the purpose of asylum.

DACA. The US Supreme Court during its 2019-20 term will decide whether President Trump's cancellation of the Deferred Action for Childhood Arrivals or DACA program in September 2017 was lawful. Federal judges issued injunctions that require USCIS to continue to accept and renew applications from unauthorized foreigners who arrived in the US before age 16 and graduated from high school, concluding that the reasons given by Trump for ending DACA were pretextual.

President Obama created DACA in 2012, and it protects about 700,000 foreigners from removal.

Politics. Democratic contenders for their party's presidential nomination want to reverse many of President Trump's policies, but only four have announced immigration reform plans. Senator Elizabeth Warren (D-MA) in July 2019 offered an immigration plan that includes decriminalizing unauthorized border crossings, introduces judicial review for immigration cases, and creates an Office of New Americans to offer English classes and other integration assistance to newcomers. Warren also pledged to invest $1.5 billion a year in the three Central American countries sending most asylum seekers to the US.

Warren promised to raise refugee admissions to 175,000 a year by the end of her first term, up from 110,000 a year in FY16 under Obama and 30,000 in 2019 under Trump; 18,000 refugees are to be admitted in FY20. Warren promised to expand family unification immigration.

Senator Bernie Sanders (I-VT) in September 2019 promised to stop deportations and to support making illegal entry into the US a civil rather than a criminal offense. Sanders, who has long opposed guest worker programs, now supports allowing employers to hire foreign workers if US workers have priority to fill vacant jobs and if the foreign guest workers can change US employers.

Warren and Sanders have proposed a wealth tax to finance their plans for tuition-free college, universal child care and Medicare for all. The top 0.1 percent of households have 20 percent of US wealth, and income inequality is at its highest level since 1957, when the Census Bureau began reporting data. Warren proposed a two percent tax on wealth over $50 million and three percent on wealth over $1 billion, while Sanders proposes a graduated tax, beginning at one percent for wealth over $32 million and eight percent on wealth over $10 billion.

The Warren plan would affect about 70,000 households and generate $2.6 trillion over a decade, while the Sanders plan would affect 180,000 households and generate $4.4 trillion. Critics of wealth taxes argue that they would undermine business confidence and reduce investment and economic efficiency.

Census. President Trump wanted the census planned for April 1, 2020 to include a question on whether the respondent is a US citizen. Preliminary testing suggested that, if all residents were asked about their citizenship, 6.5 million of the expected 330 million US residents would not complete the census.

The Supreme Court in June 2019 concluded that the Trump administration failed to justify plans to ask respondents about their citizenship on the census, so the 2020 census will not ask all respondents whether they are US citizens.