Q & A: White House Immigration Principles and Policies

On October 9, 2017, the White House released “Immigration Principles and Policies,” a list of changes it wants in immigration law and policy. These are being cast as necessary components of any legislative deal that would provide protection for so-called “Dreamers,” unauthorized immigrants who came to the US as children. The list includes major changes to protections for child migrants and refugees, as well as significant increases in funding for immigration agents and immigration detention.

However, immigration enforcement already receives lavish levels of funding with few meaningful measures to limit serious abuses. The White House proposal relies heavily on erroneous views about the current immigration system and would make an already broken system worse.

The current system allows a man who has lived in the US for more than 20 years, has a US-citizen wife, and is the primary caretaker of his severely disabled stepson to be deported with no consideration of the impact it will have on his American family. An Afghan who was an interpreter for the US military, and who sought asylum in the US believing it values human rights, can be locked up for nearly a year in an abusive immigration detention system. A 10-year-old boy from El Salvador who witnessed the murder of his father by gang members and later was threatened by the same gang can face complex deportation proceedings without an attorney.

These practices do not make the US stronger or safer. Yet the White House proposal does nothing to address the serious abuses already inherent in the immigration system, and instead seeks to weaken existing protections for such vulnerable groups as people fleeing violence and persecution, including children.

These questions and answers provide a human rights analysis of the proposals in the White House document.

Border Enforcement

Child Migrants

Q: The White House claims that “loopholes in current law” have resulted in significant increases in the number of unaccompanied children apprehended at the southern border, proposing major changes to anti-trafficking and other laws intended to protect child migrants. Is the administration right to press for these changes?

A: The “loopholes” the White House cites are actually laws and policies intended to protect children who are victims of trafficking, persecution, abuse, and neglect. Chief among these is the Trafficking Victims Protection Reauthorization Act (TVPRA) – passed by Congress in 2007 and enacted in 2008, which provides many protections to unaccompanied migrant children that are in line with international human rights law.

These include a general rule against detaining children and a requirement that countries always consider and take into account the best interest of children when making decisions that affect their welfare. Under this law, children who are coming from non-contiguous countries cannot be summarily deported without the opportunity to have their claims heard by a neutral adjudicator.

It’s not enough to say authorities in Central America should address gang violence. Local police are demonstrably unable to protect these children – and frequently unwilling to do so lest they become targets themselves.

Nor is it realistic to suggest that Mexico can protect these children. Mexico recognized just 130 unaccompanied Central American children as refugees in 2016, a relatively high proportion of the number that were able to apply for asylum and see their applications through to completion, but fewer than 1 percent of the more than 17,000 unaccompanied children from those countries who were apprehended during the year. The UN High Commissioner for Refugees has estimated that as many as half of the unaccompanied children who arrive in Mexico from El Salvador, Guatemala, and Honduras have plausible asylum claims. Unaccompanied children face formidable barriers in practice, including lack of information, the absence of legal assistance and other support, and the routine detention of most asylum applicants. In particular, as Human Rights Watch has found, the prospect of lengthy periods behind bars is a significant disincentive to seek asylum, even for children who face serious threats in their home countries.

Instead of gutting the protections now provided under law, the US should strengthen them. Ensuring that all unaccompanied children have legal representation in deportation proceedings would address serious due process harm and make the immigration adjudication system more efficient and effective, allaying concerns that children could never be deported. Similarly, winding down the US use of detention for families with children and addressing concerns over the detention conditions for some children in Office of Refugee Resettlement custody would be important and productive steps.

Children fleeing for their lives already have to navigate a veritable gauntlet of obstacles along the path to safety. The administration’s proposed changes would put it even farther out of reach.


Asylum

Q: The White House proposes to “tighten standards and eliminate loopholes in our asylum system” and increase detention of people applying for asylum. Is the US asylum system broken?

A: The US asylum system is, in many ways, broken, but not in the way the Trump administration claims. In the US today, border agents, in violation of US and international law, regularly turn away people who have genuine and legitimate claims that they will be persecuted or killed if they are returned to their home countries. Existing procedures for fast-track deportations, called “expedited removal,” have returned such asylum seekers to harm.

Even after they have entered the US, asylum seekers face an incredible array of challenges to gain protection in the US, including severe backlogs in the courts, lack of legal representation for people who cannot afford to hire an attorney, prolonged detention in many cases, and widely inconsistent rates of granting asylum across the country. Whether a person is granted asylum can depend on where they apply. In some areas, immigration judges grant asylum to fewer than five percent of applicants.

The White House proposal largely echoes the provisions of the proposed Asylum Reform and Border Protection Act, HR 391, which Human Rights Watch has joined other organizations in opposing. It would raise the threshold standard of proof in credible fear interviews, which is the preliminary screening before full adjudication of an asylum claim. Raising the standard for a screening process faced by newly arrived people, many of whom are traumatized and interviewed in challenging settings, often while detained, by telephone, and with remote interpreters, would most likely result in the deportation of many asylum seekers with legitimate claims.

The White House also proposes to “close loopholes” that supposedly allow terrorists to gain asylum. The existing “terrorism-related” bars to asylum protection are so broad, however, that they have been applied to the victims of terrorist groups like a refugee from Burundi, who an immigration judge found provided “material support” to a terrorist group because rebels had robbed him of four dollars and his lunch.

Trump’s proposal to ensure “appropriate use of parole authority,” reiterating aspects of executive orders and Homeland Security memoranda that emphasize broader detention of asylum seekers, could effectively mean that all asylum seekers would be jailed pending their immigration court proceedings, with no individualized consideration of whether such detention is necessary to ensure court appearances or protect public safety, a colossal waste of resources and a violation of the international human rights norm that in general, asylum seekers should not be detained. This would also most likely result in prolonged, indefinite detention given the backlog in immigration courts.

Expanding the return of asylum seekers to “safe third countries,” such as Mexico, would inappropriately shift the burden to a country with less capacity to process claims.

Bars to Entering the US and Illegal Reentry

Q: The White House proposes to make admissibility bars more stringent to keep out dangerous criminals and to increase penalties for illegal reentry and for illegally crossing the border repeatedly. Would any of this protect the US from dangerous criminal immigrants?

A: Overly broad bars that prevent people who are not threats to public safety or national security from reunifying with their families prevent resources from being focused more specifically on those who are actual threats.

US immigration law treats harshly nearly anyone with a criminal conviction, including convictions for minor and very old offenses. Existing bars to entering and reentering the US are already incredibly stringent and overly broad. For example, “Alice M.”, a 41-year-old Canadian graphic designer reported that she was barred from living in the US with her American fiancé because of a single teenage conviction for drug possession, which had been expunged long ago in Canada. Similarly, most immigrants deported for a criminal conviction, even offenses like shoplifting, find it nearly impossible to reenter the US legally, even if the US is the only country they have ever known and their immediate family members are all US citizens.

Illegal entry and reentry are already the most prosecuted federal crimes. Immigration offenses make up 52 percent of all federal criminal cases. Many of those prosecuted for illegal reentry are asylum seekers, and far too many of those were wrongfully denied access to asylum application procedures by border agents. Many others are long-term US residents desperate to return to their American families.

Expedited Removal

Q: The White House proposes to expand the number of non-citizens subject to “expedited removal,” a form of fast-track deportation in which a person is not entitled to a hearing before an immigration judge. Why shouldn’t the US be able to deport people more quickly, especially given the significant backlog in the immigration courts?

A: Under “expedited removal,” an immigration agent fills out a form and the person can then be deported with the approval of the agent’s supervisor. The process can send someone fleeing domestic violence back into the trap of their abuser, or a long-term resident away from their US citizen family members, with no consideration of whether they may be eligible for a “pardon” from deportation. Expedited removal processes have even resulted in deportations of US citizens and others who should never have been removed. There is probably no other area of US law in which a law enforcement officer can make such a life-or-death determination without the person affected having legal representation and court oversight.

Expedited removal is now only applicable to people caught within 100 miles of the border and within 14 days of entering the US. The border security memo indicates that the Homeland Security secretary will soon issue new regulations expanding the program nationwide for anyone who cannot prove they have been in the US for at least two years.

Border agents’ application of expedited removal already results in human rights violations, as Human Rights Watch research found on the treatment of Central Americans fleeing gang violence. Notably, many agents fail to record asylum seekers’ expressions of fear and their intention to apply for asylum, in violation of US and international law. Expedited removal also gives people no chance to present to an immigration judge evidence of their ties to the country, their family, or other mitigating factors. Only those who pass a “credible fear interview” by an asylum officer eventually go before a judge to pursue asylum claims.

Given what Human Rights Watch research has already shown to be insufficient care in considering whether a person deserves an asylum hearing, the Trump administration is giving a steroid boost to agencies and agents that have shown by their past actions to be barely restrained by the laws protecting migrants and asylum seekers.

Interior Enforcement

Sanctuary Cities and State and Local Involvement in Federal Immigration Enforcement

Q: The White House claims sanctuary cities release dangerous criminals and proposes to block sanctuary cities from receiving certain grants or cooperative agreements from the Departments of Justice and Homeland Security. Do so-called “sanctuary cities” imperil public safety?

The White House also proposes increasing state and local involvement in federal immigration enforcement, including by authorizing state and local governments to pass legislation that will support federal law enforcement. Should states and local police get involved in enforcing federal immigration law?

A: Cities, counties, and states across the country ended their participation in Department of Homeland Security programs, in which local law enforcement participates in federal immigration enforcement, because of concerns that holding people for Immigration and Customs Enforcement (ICE) was unconstitutional and that local law enforcement involvement in immigration enforcement was terrifying immigrants – to the point that they avoided the police even when they desperately need police protection.

That means that crimes weren’t reported, investigated, or prosecuted. As a police officer in Los Angeles recently told the Los Angeles Times, “It is my job to investigate crimes. And if I can’t do that, I can’t get justice for people, because all of a sudden, I’m losing my witnesses or my victims because they’re afraid that talking to me is going to lead to them getting deported.”

Under human rights law, all victims of crimes, regardless of immigration status, have the right to seek justice and redress. Although Trump claims his immigration policies are needed to protect public safety, expansion of these programs often counters local law enforcement goals.

These programs have also been found to facilitate racial profiling by local law enforcement. For example, a Justice Department investigation of the Maricopa County Sheriff’s Department found that after Sheriff Joe Arpaio entered into a 287(g) agreement, deputies engaged in unconstitutional conduct, including racial profiling, and that Latino drivers in certain parts of the county were nine times more likely to be stopped than other drivers. A study by the Warren Institute at the University of California, Berkeley found that the Criminal Alien Program in Irving, Texas, led to local police arresting Hispanics for the least serious class of misdemeanors at significantly higher rates than Whites and Blacks.

When states have passed anti-immigrant laws in the past, Human Rights Watch has found abuses of such basic rights as the right to water and housing, the right to education, and the right to redress, including access to courts, all of which affect unauthorized immigrants’ families, including US citizen children.

Visa Overstays

Q: The White House proposes classifying overstaying a visa as a misdemeanor and barring people who exceed the terms of their visa from immigration benefits. Isn’t it already against the law?

A: Unlawful presence or overstaying an immigration visa is already against the law, but it is a civil violation. There is no need to make it a crime. About half of the unauthorized 11 million people in the US, however, did not enter the country illegally. They entered legally and then became unauthorized after exceeding the limitations of their legal status.

The impacts of the spike in prosecutions for illegal entry and reentry over the past decade are indicative of the type of harm criminalizing illegal presence would have on that other portion of the unauthorized population. It would provide a basis to criminalize the actions of people with longstanding ties to the US, US citizen family members, jobs, and businesses.

The added step of making people who have overstayed visas ineligible for immigration benefits, such as gaining legal status through an American spouse, would cynically cut off avenues authorized by Congress for them to regularize their status. Such a policy shift would also increase the number of people whose unauthorized status makes them vulnerable to serious abuses and crimes.

Deporting Criminals and Gang Members

Q: Does current immigration law allow dangerous criminal immigrants to remain in the US? Does it allow gang members to remain in the US? Is the definition of “conviction” overly narrow? What is the “categorical approach” to convictions that Trump wants to eliminate?

A: US immigration law does not allow immigrants with convictions for violent crimes to enter or remain in the US, nor does it allow people with convictions for gang-related crimes to enter or remain in the US. In general terms, US immigration law is hardly lenient toward anyone with a criminal conviction – over the past 20 years, millions of immigrants, including lawful permanent residents who have lived in the US almost their entire lives, have been deported for criminal convictions, the vast majority for nonviolent offenses.

A Human Rights Watch analysis of US government data reveals that 72 percent of noncitizens deported for criminal convictions from 1997 to 2007 had nonviolent offenses. Those deportations affected more than a million family members. Human Rights Watch analyses of government data in 2009 and 2013 also showed that hundreds of thousands of people with minor nonviolent criminal convictions and strong US family ties were swept up into detention and deportation.

The White House proposal to expand the grounds for deportability would make immigration law’s treatment of anyone with a criminal conviction even more cruel and unforgiving. Specifically, the proposal to include gang members is likely to sweep up people who have no criminal records but who have been erroneously included in gang databases. In California, for example, a state auditor found California’s state gang database was rife with errors.

Even convictions that have been expunged or pardoned can result in deportation or bar people from gaining legal status, Because the definition of a “conviction” in US immigration law is already so broad, immigrants can face deportation for convictions that are no longer considered convictions in state criminal courts. For example, Jose Francisco Gonzalez pled guilty to marijuana cultivation after police found one plant on his balcony in 2001 and entered a drug diversion program that promised his record would be clean under California law upon successful completion. Despite meeting all of the program requirements, ICE put him into deportation proceedings as a “drug trafficker” 13 years later.

The “categorical approach” criticized by the White House is a longstanding approach used by US federal courts to determine whether a conviction triggers deportation to avoid second-guessing convictions already handed down by state and federal criminal courts. The Supreme Court has consistently upheld the “categorical approach,” in such cases as Moncrieffe v. Holder, which rejected the classification of a low-level marijuana offense as an “aggravated felony.”

Efforts to change this approach would upend longstanding judicial precedent and make deportation proceedings even more complicated as immigration judges and Homeland Security officials would develop new law untethered from existing precedent and state criminal laws. This would be especially unfair in immigration proceedings, in which immigrants do not have full due process protections normally available in criminal court, such as court-appointed counsel.

Issues Related to Both Border and Interior Enforcement

Increased Resources for Immigration Courts and ICE Officers

Q: The White House claims the backlog in immigration court is preventing the swift removal of people at the border and the interior. It proposes increases in resources for immigration courts, ICE officers, and detention. Are these resources really needed?

A: There is a severe backlog in immigration courts that is harmful to many immigrants who seek timely resolution of their claims. Resources that increase fair and unbiased resolution of immigration claims are badly needed.

However, the prospect of increased numbers of immigration agents and detention capacity is deeply troubling. The Trump Administration’s ramped-up deportation force has already led to a significant and essentially haphazard increase in the deportation of immigrants, with little individualized consideration of that person’s ties to the US, including US citizen family members. Unless preceded by fundamental reforms, increasing the number of ICE agents, whether to remove people in the interior or at the border, would increase the number of broken families and the ensuing costs to local communities and economies.

The number of people locked up in immigration detention is already at an all-time high, and results in large-scale unnecessary detention of asylum seekers, long-term US residents – with devastating impact on their US citizen children – and families seeking asylum. Conditions in immigration detention centers are often abusive and sometimes even deadly. This administration has already made clear it plans to weaken standards for medical care, safety, and civil rights in detention.

Detention severely impairs the ability of people to obtain legal counsel and to fight their case, even when they have meritorious claims to remain in the US. Government reports repeatedly note the detention system’s failure to even keep track of costs, complaints, and otherwise manage the system effectively. There are alternative methods of ensuring that people will appear at their court hearings – such as community-based supervision – that are effective and more cost-efficient.

Detention Authority

Q: The White House claims “erosions” to detention authority have limited the US government’s ability to detain dangerous immigrants. Are reforms needed?

A: What the Trump administration claims are “erosions” to detention authority are actually checks placed on detention by US federal courts to prevent indefinite detention. The US should reduce, not increase, the number of people in detention; and should certainly not detain people in violation of the US Constitution.

Merit-Based Immigration

Q: The White House proposes establishing a merit-based immigration system that prioritizes skills over family relationships. The proposal effectively reiterates the provisions of the RAISE Act, which would overall reduce legal immigration to the US and limit family-based green cards to spouses and minor children. Doesn’t the US have a right to set limits on legal immigration?

A: International human rights law does not dictate what factors should go into a country’s priorities for legal immigration. However, the RAISE Act does nothing to address the serious failure of current immigration law to protect the right to family unity.

Refugee Resettlement

Q: The White House proposes to limit the number of refugees allowed into the US, echoing recent media reports that the total number of refugees admitted each year will be reduced to 45,000. Doesn’t the US have a right to decide how many refugees it accepts?

A: The recently announced decision to lower the US refugee ceiling is an abdication of US leadership at a time of greatest need for the world’s refugees. This action not only cuts a lifeline for thousands of refugees, but sends a message to countries on the front line of the crisis, from Bangladesh to Lebanon to Kenya, that US pledges of support can no longer be trusted.