Supreme Court Allows Dreamers to Stay in US – For Now

MAPA Newsletter Jul-Aug 2020

A demonstration by United We Dream outside the Supreme Court in November 2019, when the DACA case was heard. Credit: UWD photo.

Part IV of the series Voices from the Border: A Cry for Justice

by Sunny Robinson

In a significant victory for immigrants, the US Supreme Court on June 19th released a 6-3 decision that, for the moment, preserves DACA (Deferred Action on Childhood Arrivals.) While it may be just a short-term victory, the decision does allow current DACA recipients to avoid, for now, the deportations that were anticipated to begin immediately if DACA had been overturned.

DACA was established by President Obama via executive action after Congress failed to create protections for children and youth who came with their parents, often fleeing police, military and/or gang violence. The Trump administration reasoned that since it had been created by executive action, it could be overturned by executive action. However, regulations require that a rationale for, and the impact of, overturning an executive action must be presented as part of the request. The Supreme Court found these conditions had not been met. Only Justice Sonia Sotomayor made additional comments, noting the racist grounds on which the Trump order was based.

Thus, a group of 6-800,000 deportations has been at least temporarily averted. It remains unclear, however, if DACA recipients, whose status is due for renewal, will be allowed to renew; or if they will be able to meet the fees associated with renewal; or whether new DACA applications will be accepted. This fearsome legal back-and-forth will continue until Congress passes legislation that not only secures the continued right of DACA recipients to remain in the U.S., but creates a well-deserved path to citizenship for these young people. Many are now in college or are essential workers in a variety of settings – including, notably, in health care.

Another positive federal court decision of June 26 ordered that all children still held in the three Immigration and Customs Enforcement (ICE) family detention centers be released by July 17th. Many of these children have already been held longer than the 20 days allowed by law. The accompanying adults have not been ordered released, though most of them have family contacts in the U.S., as do the children, to which they could be released if the Trump administration chose a humanitarian response.

Finally, on June 30th a DC Federal Judge, in an even more surprising decision, ruled that persons reaching the US in their pursuit of asylum could not be denied the right to apply even if they had passed through a third country. Any attempt to do so, according to the judge, was a violation of the Immigration and Nationality Act as well as of the Administrative Procedures Act. As this series of articles on immigration has stated repeatedly, people have the human right to apply for asylum. This decision reinforces the fact that simply passing through another country before arriving at the US border does not curtail the right to apply for asylum and that it is illegal for the Trump administration to try to do so.

However, so-called Safe Third Country agreements have already been implemented as asylum seekers, some known to have tested positive for Covid-19, have been returned to Guatemala via plane. Few if any services are available to these persons on arrival in Guatemala, where they can find the possibility of shelter and support from only a very few voluntary agencies.  Agreements are in place for such forced deportations to Honduras and perhaps El Salvador, though it is not clear if they have been implemented.

Worse still is a June 15 submission of proposed new regulations to govern requirements for asylum, that, if approved, would virtually eliminate the opportunity to seek asylum; would require much more detailed documentation for claims of persecution, bringing the requirements to the point of having to prove torture; allow applications to be deemed “frivolous” and immediately denied, and, in doing so, increase the depth of US violation of its own and international asylum standards. Comment on these regulations is open to July 15th and should be sent to the Executive Office of Immigration Review. Write, call or email Senators Warren and Markey urging them to work with others and oppose these new regulations and insist that the US continue to meet its asylum standards as set forth in United Nations protocols and the US Refugee Act of 1980.

The southern and northern borders remain closed, though migrants continue to attempt to enter the US and are either deported immediately or detained by CBP (Customs and Border Protection) or ICE in facilities where they face the risk of exposure to Covid-19, virtually no opportunity for physical distancing, often no masks or other safety precautions, nor access to health care, and little opportunity for hand washing. Statistics indicate as many as 16,000 deportations have occurred since March 2020 with 900 being unaccompanied minors. How many of these were new entrants to the US, versus deported from earlier detention, is not clear.  Of 1001 unaccompanied minors seeking asylum in May, only 39 are known to have been permitted to move their cases forward after credible-fear interviews conducted by CBP. The ACLU recently indicted they also did not know how many children, previously separated from their parents, have never been returned to their parents.

A very troubling Supreme Court 7-2 decision on June 25 (only Kagan and Sotomayor dissenting) permitted fast-track deportation without further judicial review of a Tamil asylum seeker from Sri Lanka on the grounds that he did not provide sufficient evidence of credible fear despite his history of beatings and persecution. This fast-track denial is seen as likely precedent-setting in undermining the ability of asylum seekers at the border to present their cases for judicial review. Those with longer standing connections in the country may have a stronger case for claiming due process. The decision was based narrowly on the authority of executive agencies to remove applicants without judicial review.

At the southern border, the so-called Migrant Protection Protocol—more commonly called the Remain in Mexico Program or metering—has been dismantled and these migrants returned to Mexico or their countries of origin. No retention of the list of people “metered”—that is, cued up waiting to be called to court to present their case—is known to be in existence as far as this writer could learn. Immigration courts, even those that were operating virtually with little legal assistance to the applicants and little if any translation, seem not to be continuing. As of July 3rd, COVID-positive cases have been identified among Matamoras, MX camp residents.

Even H-1B visas, those given to skilled and often high tech professionals and students, are being greatly reduced in numbers. While some temporary worker visas in sectors like agriculture are still in existence, they are limited in number, seasonal, and at work sites that offer little in the way of Covid-19 protections. If we look behind the scenes at whom the workers in many of the meat and poultry processing facilities are, in places from Georgia to North Dakota, we find a very high percentage of these workers to be immigrants, whether long term or newly arrived. Businesses and universities generally oppose the new visa restrictions, which are being justified in the name of stopping the spread of the pandemic and allowing the jobs to go to US residents who are out of work. On July 6, Trump issued an executive order indicating that foreign students whose universities were going to be on-line only, would have to leave despite the fact that they are here now and hold valid visas!

USCIS (the US Customs and Immigration Service – the US’s visa and citizenship granting body) is about to go bankrupt as they are funded largely through fees and, even with fees increased, they are accepting few visa or citizenship applications and are about to run out of funds. Plans indicate up to 70% of this work force may be laid off.

At the national level, Trump, led by Stephen Miller, seems to be achieving his goal – end immigration! Especially of people who are not white!  At the same time, massive numbers of people continue to flee economic, military, and gang violence stimulated in large part by US policies

Much needs to be done to keep encouraging, as often as we can, our federal representatives and senators to do all they can to help preserve even a modicum of humane treatment in the current operation of immigration practices.

Please make questions about immigration a central plank of any interactions with these Congressional reps. Thank them for what they have done so they keep on trying. While we will not achieve just and humane immigration practices until we elect a just and humane president and Congress, we do need to keep trying to secure what protections and human rights we can.

At the state level, as a result of vigorous advocacy, the so-called safe driving bill, the Driving Massachusetts ForwardBill, has been reported favorably out of committee though it is not clear when or if it will come to the Mass. House or Senate floor for discussion and vote. MIRA (Mass Immigrant and Refugee Advocacy Center) continues to be an excellent site for learning the current status and strategies for this bill.

Over the last weeks more than 9,000 emails have gone to the Mass. Public Safety and Homeland Security Committee urging legislators to vote favorably on the Safe Communities Act and thus to move the bill to the floor for discussion and vote. Continued calls to our local reps and senators to urge them to urge the committee chairs, Sen. Moore and Rep. Naughton, to move the bill forward, are needed. Additionally urge your representatives to urge House Speaker DeLeo to bring the bill to the floor. 

The Supreme Court also recently rejected a request to review a California Federal Court decision that said states could not be forced to cooperate with ICE. This lack of action leaves standing the reality that states cannot now be forced to accept these contracts as the Trump administration wants.

This amount of attention to the bill while in committee is seen as having created very favorable possibilities! However, we only have till July 15th to move this legislation out of committee onto the floor for discussion and vote. Time is of the essence. Makes those calls today!

We must not let this bill die in committee again this year. Urge others to do so also. Keep calling till you get a firm commitment that they will work to help pass this bill.

Now is the time!  Immigrant justice is an integral part of racial justice!  

–Sunny Robinson is a retired public health nurse and decades-long human rights activist, whose international work has focused largely on Central America. She is an active member of Mass. Peace Action’s Latin America and Caribbean Working Group and the Essex County Community Organization.

Missed the other articles in the “Voices from the Border” series? Check out the first three to learn more:

A Cry for Justice

What must we do to make immigration just and humane?

Looking to support and protect immigrants in your community? Support the Safe Communities Act!