Haitian Refugees at the Southern Border


Refugee crisis

 

Last week I talked about the humanitarian crisis for the Afghan refugees, so today I want to address the refugee crisis, but now on the southern border. 

Along with that, I’ll talk about two recent rulings: 

  • The reconciliation bill, 
  • The huge blow the Democrats’ immigration plans took due to the recent decision in the senate, and
  • Finally, I’ll take a few moments to talk about another ruling, this one from a federal court and related to asylum seekers at ports of entry, and how it was deemed unconstitutional to turn them back. 

If you have immigration concerns, our New Jersey immigration attorneys can help. We can help you get legal status for you and your family.

 

The Southern Border Crisis

Ok, so let’s jump right ahead with our first topic, and that’s the humanitarian crisis happening at our southern border. 

First of all, let’s get a bit of background: Back in 2014, the U.S. government declared a crisis at the southern border in order to address the rapid increase in the number of unaccompanied children and, to a lesser extent, women migrating through the border checkpoints and unguarded entry points.

7 years later and the situation continues to be a crisis. 

When President Biden took office, we all hoped his administration would bring significant changes to this situation, but his administration is steering clear of calling children coming to the border a crisis, instead emphasizing that the crisis is based in the origin countries in Central America.

As you know, the southern border has always been a crossing point for people coming from Mexico, and other countries, into the U.S; and while asylum-seeking and border crossing is often identified as a problem with Mexican immigrants, from 2000 to 2016 unlawful Mexican immigration dropped off by almost 90 percent.

Instead, most of these individuals came from the Northern Triangle of Central America: Honduras, Guatemala, and El Salvador.

 

Haitian Refugees Coming at the Border

In addition to this, and as sure as you have seen in recent news, thousands of Haitian migrants have recently congregated under the bridge that connects Mexico with Del Rio, Texas.

The U.S. responded to this by arresting people and sending them back to Haiti. This is considered to be one of the “swiftest large-scale expulsions of migrants or refugees in decades.”

It can be compared only to the expulsion of Haitians at sea in 1992. 

In recent months, the number of Haitians attempting to cross at the border has gone from 2,700 back in May, to over 6,700 this past August. 

 

Factors That Are Complicating the Border Crisis

While there are large numbers of people from Central America crossing, many are returned to Mexico due to the pandemic. However, Mexico will not accept Haitians and is only allowing in people from Mexico, Guatemala, Honduras, and El Salvador.

 

US: Supreme Court Ruling Endangering Asylum Seekers

Another factor adding to the crisis is a decision taken in September 2019 that stated that any asylum seeker who entered the United States after July 16, 2019, would automatically be denied asylum if they had not tried to seek refuge in a country they had traveled through on their way to the border.

Considering most migrants coming at the southern border are from Central America, this ruling impacted Cubans, Indians, Africans, and Venezuelans who may travel through several countries before reaching the U.S. – Mexico border.

Along with this, the supreme court recently refused to block a ruling from a Texas judge that required the Biden administration to reinstate Trump’s “Remain in Mexico” program, and even if this particular ruling will probably end up back in the Supreme Court, we still need to wait.

 

Asylum Seekers at the Border

Now, talking about asylum seekers, and contrary to many reports, migrants do not have to present themselves at a legal port of entry to claim asylum. 

They only need to assert that claim to the first ICE or Customs and Border Protection official they encounter or submit an application to apply for asylum within one year of arrival.

After 150 days of waiting for their asylum hearing, applicants can apply for employment authorization, and under the previous administration, those who applied most recently were granted their hearing first, meaning that some people can live and work in the U.S. for years waiting for their hearings. 

 

Applying for Asylum

In the past, an asylum process used to take a few months, but with all of these situations, is now taking between 2 to 5 years.

All of these factors: a large number of people trying to cross the border, the ones who have crossed and are seeking asylum claims, and the reasons such as violence or political instability at their home countries, is what is fueling this crisis.

To solve, or at least decrease, this crisis, a combination of actions will be needed. 

A mix of political advocacy, policy changes, and humanitarian aid is what it takes to start solving the situation and provide relief to the hundreds of thousands of people looking for a way to improve their lives.

 

A Huge Blow to the Reconciliation Bill

On Sunday, September 19, the Democrats plan to provide over 8 million green cards as a part of their $3.5 trillion spending bill had a major blow after the Senate parliamentarian Elizabeth MacDonough ruled against it.

I have created a few videos during the past weeks talking about the Reconciliation Bill, and how it could help the Democrats to fulfill their immigration policies.

Now, going to MacDonough’s ruling, it seems to give a definitive closure to the plan the Democrats had to use the spending bill to provide a pathway to citizenship for millions of immigrants.  

In her guidance, she warned that the Democratic plan doesn’t meet the strict rules on what can be in the spending bill, calling the plan “by any standard a broad, new immigration policy.”

Referring to the budget process the democrats were trying to use to avoid the Senate filibuster, she said that the policy changes of the proposal outweigh the budgetary impact scored to it and it is not appropriate for inclusion in the reconciliation bill.

In the plan presented to MacDonough earlier this month, the Democrats mentioned the intention to use the $3.5 trillion spending bill to provide 8 million green cards for four groups of immigrants: 

  • “Dreamers,” 
  • Temporary Protected Status (TPS) holders,
  • Agricultural workers, and 
  • Essential workers. 

As you know, getting legal permanent resident status allows an individual to eventually apply for citizenship if they can meet other qualifications.

One key aspect to consider in this situation is that the Democrats were using reconciliation to pass the spending bill WITHOUT GOP support, and this brings strict requirements for what can be included.

For instance, one of the requirements is that any provision in the bill has to impact the federal government’s spending or revenues and that the impact can’t be “merely incidental” to nonbudgetary intentions.  

And in her guidance to the senators, MacDonough wrote that granting LPR status had “no federal fiscal equivalent.”

She said: “Changing the law to clear the way to LPR status is a tremendous and enduring policy change that dwarfs its budgetary impact”. 

 

What the Democrats Can Do

But the Democrats did have the option of rejection in mind, and from the start, they pledged that if the Senate turned down their efforts, they could keep trying to sway her until the $3.5 trillion spending bill was on the Senate floor.

And on that same Sunday night, Senate Majority Leader Charles Summer said Democrats would take an alternative proposal to MacDonough.

He expressed his disappointment in the decision but reinstated that the fight to provide lawful status for immigrants in budget reconciliation continues.

He said that: “Senate Democrats have prepared alternate proposals and will be holding additional meetings with the Senate parliamentarian in the coming days”.

How things stand at the moment, the spending bill is Democrats’ best shot at getting immigration reform to President Biden’s desk.

Though the House previously passed two smaller bills, Senate Democrats have been unable to come up with a plan that could get the 10 GOP votes needed to break a filibuster in the Senate.

And for sure, the filibuster is what the democrats are looking to avoid. They were hoping that MacDonough would greenlight their immigration plan in the spending bill because it would increase budget deficits by $139 billion over a 10-year period.

To this note, Republicans also argued to MacDonough that immigration reform was outside the lines of what could be passed under reconciliation, which allows Democrats to avoid a GOP filibuster in the Senate. 

Sen. Lindsey Graham, the top Republican on the Budget Committee, praised MacDonough’s decision and argued that legal status shouldn’t be provided without broader immigration reforms.  

Outside groups supportive of using the spending bill to pass immigration reform argued that this was the first step in the process and not a nail in the coffin for getting some changes into the spending bill. 

But what is a fact is that if the Democrats can’t sway MacDonough, they’ll need to either leave the immigration language out of the spending bill or muster the 60 votes needed to keep it in.

And with Republicans opposed to using the spending package to pass immigration reform, that looks unlikely, to say the least.

Democrats are also likely to face fresh calls to nix the legislative filibuster, which would let them pass immigration reform and other priorities with a simple majority outside reconciliation, as well as either fire MacDonough or formally overrule her on the floor, a move that would take total unity from Democrats and Vice President Harris presiding.  

 

Turning Back on Asylum Seekers is Against the Law

Moving to our next topic, we have some good news coming from a ruling by a federal court back at the beginning of the month.

This new ruling states that the U.S. government’s turning back of asylum seekers at ports of entry along the U.S.-Mexico border not only violates U.S. law but also is unconstitutional. 

To give some background on this subject, before the Migrant Protection Protocols and Title 42, U.S. Customs and Border Protection officers began the practice of turning back asylum seekers all along the southern border to keep them from accessing protection in the United States. 

CBP’s metering practice, which is a formalized use of turnbacks, stationed CBP officers at the U.S. border to prevent asylum seekers, who lawfully approach U.S. ports of entry to ask for protection, from setting foot on U.S. soil. 

Asylum seekers who are metered are told that the ports of entry are “full” and turned back to Mexico. 

The ruling made in Al Otro Lado v. Mayorkas confirms what advocates and the plaintiffs in the case have known for years: the government may not deny asylum seekers their right to access the U.S. asylum process by blocking them from stepping on U.S. soil.

CBP officers have a mandatory duty to inspect and process asylum seekers who are arriving in the United States. 

This duty applies to those who, because of CBP practices, remain outside the U.S. boundary line. 

As a result of metering, asylum seekers often would put their names on waitlists that were created out of necessity in Mexican border towns. 

Although CBP might process a limited number of asylum seekers on a given day, CBP kept no record of the individual asylum seekers who were metered. 

As of May 2021, there were on waitlists in eight Mexican border towns.

The waitlists generated on the Mexican side of the border only told asylum seekers how long they had been waiting in comparison to others, not when, or even if, they would get access to the U.S. asylum process. 

Therefore, vulnerable asylum seekers waited for unspecified amounts of time in the dangerous Mexican border region for a chance to access the U.S. asylum process. 

Finally, on September 2, Judge Cynthia A. Bashant found that, as a matter of law, the government may not disregard its duty to inspect and process asylum seekers who are arriving at ports of entry. 

In fact, U.S. law confirms that this duty is equal in importance to other CBP duties, such as its national security mission. 

The federal court has not yet determined the remedy that it will impose for the government’s violations, but the decision serves as an important reminder of this nation’s commitment to those fleeing persecution who arrive at our borders seeking protection. 

Ports of entry serve as a front door to our country. The government may not simply shut that door to asylum seekers.

 

Need Immigration Help? Talk to an Immigration Attorney 

If you need assistance with your immigration issues, our New Jersey immigration attorneys are here to help.  We won’t take your money if we can’t help you, so reach out to us today and we’ll see if we can get you started on your immigration journey.  Connect with our New Jersey immigration law firm today to schedule a consultation.

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