Immigration Policy – Reporting from the field
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» See the original article posted on Oct. 2019
I have been an immigration attorney in Palm Beach County for over 25 years helping mostly nationals of Guatemala, the majority Maya and many others from El Salvador and Honduras. Most of them have had no option but to cross borders. For years the border was wide open- and as a nation we have enjoyed the benefits of their hard work. Yet we have made it virtually impossible for millions to ever correct their legal status, despite the fact that so many have lived in our nation for more than ten years, worked hard and raised families.
We have millions of mixed status families among us, living in great fear and vulnerability for many years. I have been practicing immigration law during a period when some of the most draconian immigration laws in our nation’s history have been in effect. I will try to distill 25 years in the battlefield to give context to the issue.
THE STATE OF OUR IMMIGRATION SYSTEM
The movements of people, is our human history, yet how we deal with the sojourners among us says much about the soul of a nation. Freedom of movement is an inherent basic human right, yet the protection of a nation’s borders and the decision of who and when and in what conditions people are admitted is also a right that nation states have. It is in this tension, that good immigration policy should be found, yet our Congress and many administrations have failed to enact such a policy for over two decades.
Our present immigration system was last revamped in 1996. The rule of law is important and we must strive to push policies that promote legal migration, yet our current, immigration system does not do that. There is no line to get behind for our many needed workers. Yet when there are no legal ways, the free market will dictate the flow of labor. Because of stringent bars enacted by Congress in 1996 and signed into law by President Clinton,policies perpetuate the illegality of millions.
It is estimated that there are 10.7 million undocumented people in the country. About 2 million entered as children. Fifty percent entered via the border or without inspection, the other half with a visa and are visa overstays. Since the passage of the 1996 law, those that entered without inspection are the hardest to help correct their legal status after the passage of the 1996 law. Immigration policy has been used by both parties as meat for their respective bases and politics.
I organized rallies, formed coalitions, filed complaints in order to break the silence of the injustices that have been taking place in plain sight for years with the hope always, that Congress will act. In 2008 President Obama promised that within his first year he would give our nation immigration reform. In 2009, with a Democratic controlled Congress, President Obama rather than keeping that promise and using his mandate, went on to expand a pilot program created by President Bush in 2008 called “secured communities” which allowed law enforcement to inquire about the legal status of a person they stop and to assist in federal immigration enforcement. President Obama’s administration expanded this program- without pairing such massive interior enforcement with a legalization component. This massive interior enforcement, was the fuel to deportations during the first four years of the last administration-when 2.4 million people were deported and at least 400,000 United States citizen children lost a parent to deportation. In 2012 alone, the last administration spent 18 billion a year for interior enforcement.
A vast majority of the millions deported during the last administration, were largely nationals of Mexico, Guatemala, El Salvador and Honduras. The majority of the deportees during this time from the Northern Triangle did not have criminal convictions prior to deportation, but merely had been convicted of immigration offenses or traffic offenses, such as “driving without a license”. We deported landscapers, dishwashers, agricultural workers, all sub rosa ; separating families and creating the social chaos that has hurt rather than help development in the region. Migrants can and should be seen as a force for development. They are the ones whose money goes directly to the villages they come from. That is the money that lifts a household and then a village out of poverty. Yet, we spent billions deporting the lifeline of those three nascent democracies.
The private correctional industry lobby has given money both to Democrats and Republicans, since criminalizing the undocumented is good business. The “attrition through enforcement” has been a policy they have driven.
Palm Beach County, like other counties with a growing immigrant community was ground zero during those difficult years. I filed three complaints with the Office of Civil Rights and Liberties of the Department of Homeland Security as a result of the racial profiling that is part of the enforcement only approach.
I have witnessed as well the xenophobia that has enveloped the immigration debate for years and I have taken citizen actions. I filed an FCC complaint against a local radio personality that stated on the airwaves that “illegal aliens should be hung in public squares as invaders.” It is important to note that many immigrants in our county, already are the victims of serious crimes against them, since many prey on their vulnerability.
As an immigration attorney reporting from the field, I know too well that human smugglers are, since 2004, working closely with transnational criminal organizations. Back when I began helping many of the Guatemalan Mayas here in our County in 1993, people would cross borders without a smuggler or pay $700. The dangers were the desert itself, the animals encountered or dehydration. Since 2004 I have witnessed a change. Human smuggling is a billion-dollar business and transnational criminal organizations have cashed in. A woman or child from Guatemala has to pay up to $10,000 each to cross via Mexico. If they try to cross without a smuggler they could be killed in Mexico. Mass graves of Central American immigrants have been found.
THE BORDER SURGE OF 2014, WAS LARGELY FUELED BY SMUGGLERS IN GUATEMALA, THAT KNOW THAT ARRIVING WITH A CHILD, IS THE TICKET TO BE RELEASED INTO OUR HOMELAND. MANY ADULTS HAVE ARRIVED WITH CHILDREN THAT ARE NOT THEIRS, YET CLAIM THEY ARE A FAMILY UNIT.
I helped and continue to help, pro bono, the victims of extortions, rapes, attempted murders of those who cross borders. I helped a mother, who received a call from a smuggler in Arizona, saying that if she did not send another five thousand, they would kill her kid and sell his organs. In 2009 I walked pro bono with a family from West Palm Beach, where the father was deported for an immigration violation and then attempted to come back with a smuggler. His wife got a call from the smugglers asking for an additional $5000 to be wired or he would be killed. She never heard from him again. Three years later the Guatemalan consulate in Texas identified him because of his teeth in a skull they found in a ranch. His children, all United States citizens, went to Guatemala to bury the remains. We also have meth arriving at records never seen before between ports of entry, and have child trafficking rings that bring an average of 10,000 children a year.
THE PROBLEM AT THE BORDER
Mass flash migrations of asylum seekers is a humanitarian crisis that can devolve rapidly into a national security crisis. Just in May 2018, 144,000 family units arrived essentially breaking down our system. Such mass flash migrations are not new. Both President Bush and Clinton grappled with similar circumstances when we had Haitians in the early 1990’s, jumping into makeshift boats and attempting to make it to the USA. Both of those Presidents dealt with that mass flash migration of asylum seekers by processing them in Guantanamo Bay Cuba for their “credible fear interviews,” and then paroling them into the United States so that they could apply for asylum. The others, were repatriated back to Haiti.
The mass deportations of nationals from Guatemala, El Salvador, and Honduras from 2009 to 2012 and the abandonment of the Northern Triangle by the previous administration during the same time period, did create the conditions for the 2014 border surge of women, children, and unaccompanied minors showing up at the border asking for asylum. In 2014 the Obama administration handled that crisis with the creation of family detention centers, fast tracking the asylum hearings and a request for 4 billion dollars to attend the crisis. Vice President Biden went to the region in 2014 and urged the Presidents of those three nations to curtail the migration of their nationals with funding from the US to promote security, governance and prosperity and also provided funding to repatriate and reintegrate those removed.
The Obama administration created a small refugee program to promote the legal migration of certain children from El Salvador, Honduras and Guatemala- the Central America Minors program-CAM), yet that program has been terminated by the Trump Administration before it even made any traction.
The answers as to how to deal with the mass flash migration of asylum seekers from these three countries, most of them children and women to request asylum, is a complex and very nuanced policy issue. It requires a holistic approach. Border security is not the solution, it is only a part of the solution. The caravans that began the summer of 2018 were clear indication that a “wall” will not deter a mass migration of asylum seekers with children, since the Flores agreement provided an open door for an adult arriving at the border with a child requesting asylum, to be released into the homeland. From April to June 2018 the Trump Administration issued the “zero tolerance policy” charging adults criminally for crossing the border and separating the children, arguing that litigation based on the Flores agreement in 2015 gave them no alternative, since per that Court ruling, both “accompanied “ and unaccompanied” children could not be held more than 20 days in detention. This policy, that lasted a month as a result of the bi partisan outrage, will be a stain in our nation’s history.
Human despair cannot be criminalized. Separating parents from their children for crossing the border to provide a better life for themselves, and traumatizing children now under the care and responsibility of the US Government, was an egregious policy decision. The optics of the children separated from their parents who crossed the border in search of a better life will haunt our nation forever. Yet the suffering of the 400,000 United States Citizen children, separated from a parent during President Obama’s deportations based on interior enforcement, all sub rosa , should not be swept under the rug. The suffering of children by our enforcement-only approach to our broken immigration system must be taken into account and must give Congress the urgency to act.
It must be noted that only 14 percent of those that apply for asylum from El Salvador, Guatemala and Honduras, are granted that relief and only forty percent of those that were released into the homeland during the 2014 border surge even applied for asylum when released. Our asylum system is indeed being abused as a way to be released into the homeland with meritless asylum cases. Yet we must protect it for those that are indeed fleeing individualized persecution. The perpetual interplay between the right of a nation state to protect its borders and the basic right to life is at issue.
The Flores agreement is the result of years of litigation by well-intentioned immigrant rights attorneys to protect the rights of arriving unaccompanied minors, that morphed into an agreement whose unintended consequences foment the irregular migration en masse of asylum seekers with children. Nationals of other countries are now following the irregular migration routes of those from the Northern Triangle. Given the lack of congressional action to attend the unforeseen consequences of the Flores agreement, the Trump administration recently issued the Flores rule, which allows for accompanied children to be held more than 20 days in detention while the family unit is being processed.
RECENT ACTIONS TO ADDRESS PROBLEM
It is clear that something must be done, but Congress has remained unable to find compromise on the border crisis, let alone immigration reform. So, the Administration has been forced to act unilaterally.
It is recognized that we must work regionally with other nations to absorb people from the Northern Triangle and other countries showing up at the US border requesting asylum. During the 2018 border surge, Mexico did offer asylum and work permits to those attempting to reach the United States in a caravan. Regretfully, open border activists, many who also promoted those caravans, did all they could to deter people from seeking protection in Mexico.
Father Solalinde, a renowned immigrant rights activist in Mexico, in 2018 strongly criticized the organizers of the caravans, particularly “Pueblos Sin Fronteras, People Without Borders” for refusing to accept the asylum offered in Mexico and for pushing the migrants to go straight to the US Mexican border for what he called a “mediatic confrontation with the United States”. One hundred people, 67 of them children who were part of the latest caravan promoted by these open border groups, were last seen getting on some fruit trucks near Veracruz Mexico. They have not been seen again.
Now we have moved beyond simply encouraging migrants to stay in Mexico. At the height of the crisis, Democrats for months kept denying there was a crisis at all, forcing the executive to take action unilaterally by issuing asylum regulations that have changed our asylum system dramatically. Per the asylum regulations issued by the Trump Administration, all those that attempt to cross the border to apply for asylum after the date of enactment must first show that they have applied and been denied asylum in a safe third country.
Per the recommendations of the Homeland Security Advisory Council Final Report, which recommended in country processing of asylum claims in the Northern Triangle, the Trump administration is working toward creating Refugee Processing Centers in Guatemala to process asylum claims of Salvadoran and Honduran nationals there. It entered into a similar agreement with El Salvador, and working on the same with other nations in Central America.
The administration has by regulation changed the practice of “catch and release” and now those nationals that arrive at the border with children will have their claim adjudicated in family detentions and returned back if denied. Congress continues to fail to act and actions taken this administration are being challenged in court.
A NEW IMMIGRATION POLICY
Our immigration policies are in need of serious reform. To achieve such reform, both Democrats and Republicans in Congress will have to compromise. As someone that has spent many years speaking to Republicans to try to find this compromise, I know that until the border is secure, Republicans will not move on legalizing those already here.
As a bridge- builder and in order to find compromise and good policy, I believe that Democrats should give the current administration what DHS has requested for border security, since that will deter the drugs that are arriving between ports of entry, the child sexual trafficking rings and the human smuggling of desperate people.
Specifically, the Congress should shape an agreement that involves the following elements.
- Provide the necessary amount of money needed for border security as requested by DHS.
- Congress should then legislate for “Dreamers.” Dreamers refers to people brought to the United States by their parent(s) who either crossed the border or overstayed their visas, and for the purposes of this policy paper it covers all those that could have applied under the Deferred Action for Childhood arrivals promulgated by President Obama in June 2012 via executive action. They should have a direct path to citizenship, yet they should not be allowed to petition for their parents, since this would create a direct path to citizenship to people that either crossed the border or overstayed their visas, and Republicans rightly feel this would reward those that circumvented existing laws.
- The parents of “Dreamers” and the rest of the undocumented population already here, prior to 2014, working without authorization in our country, should get legalization without a direct path to citizenship. That is, they can get a work permit to travel and work legally in the country but a special law should not be carved out for them to reward for crossing the border or overstaying their visas. If they have a way to obtain their legal permanent residency via existing laws, they can, but in the interim they will be here legally, with a type of non-immigrant status.
It will help our national security to bring the undocumented population in the United States( prior to 2014) out of the shadows, and have them all undergo background and criminal checks to obtain that status.
- Congress and/or the Executive by regulation, should allow for nationals of Guatemala, El Salvador and Honduras, already working and living in our nation in certain industries (i.e. agriculture, construction, service industry) to obtain a work card that will allow them to work in the United States and travel, renewable every two years. It could be a type of “deferred action” that will not lead to legal permanent residency and or citizenship. It will help our national security to bring this population out of the shadows and l boost the economy of these three nations.
- In order to prevent future undocumented , Congress should create a market based, guest worker program to bring in needed workers particularly from the Northern Triangle region, which would in turn help those nascent economies. The Trump administration recently signed a Memorandum of Agreement with Guatemala to improve the temporary H-2A worker program and allow for more Guatemalan nationals to enter the country temporarily, to work in agriculture. A similar accord has been signed with El Salvador.
This is a good step forward. Congress should act and allow for workers under this non-immigrant worker visa, to change employer’s “portability” once in the United States and expand these programs for nationals of these three countries in other industries, other than agriculture. Once we attend to the status of the undocumented population already in the United States, Congress should also mandate an employment verification system. The onus would then be on employers not to hire people without documents.
- Congress should enact legislation that will admit each year a specified number of unaccompanied minors who demonstrate that they have been abandoned, abused and or neglected by their natural parents from El Salvador, Honduras and Guatemala. In-country processing would take place in the respective US Embassies allowing them to enter the USA under humanitarian parole. This will deter them from risking their lives by crossing borders alone or in the hands of smugglers.
This program can be created by Congress to provide this protection for 5 -10 years and help change the migration of teenagers, from irregular to legal. Once here, these unaccompanied minors can renew their humanitarian parole status every two years allowing them to live and work in the United States. At the moment, the Flores Agreement and our current policies, simply foment this irregular migration of at-risk children with transnational criminal organizations and once they arrive, they simply become the “undocumented “of tomorrow. Many are abused by the “legal guardians” that take them into their homes and forced to work in slave like conditions.
- The Executive that allocates refugee numbers annually, should create a parole program for the Northern Triangle so that children of nationals of these three countries in the United States covered under a legalization program can bring their children under the age of 21. They would enter under humanitarian parole to be reunited with their parents already here and not have to endanger children’s lives.
WHAT CAN WE DO?
While Congress acts to address our antiquated immigration system and create legal mechanisms, other than asylum, that reflect current labor flows, we as citizens can take action.
Given the dark underbelly of the forces that are fueling this mass migration of asylum seekers and knowing that few have winnable asylum claims, even with the best attorneys,I have focused much work, pro bono, in helping attend the root causes of the irregular migration of marginalized children. For years, as Honorary Consul of Guatemala in Palm Beach County I also organized workshops both in South Florida and in Quetzaltenango Guatemala promoting transnational projects for development with the South Florida Guatemalan diaspora, geared at attending the root causes. That is, promoting -the right not to have to migrate.
At the moment I am raising awareness and the need for funding to create the first “shelter school” in Guatemala City called Casa Shalom – that will provide for the accelerated education and gainful employment of returned migrant youth in Guatemala. Casa Shalom will be the Guatemala City campus of Ak Tenamit, which in the Maya language of Q’eqchi means “new village” a school in the rainforest in Rio Dulce, created 30 years ago by Steve Dudenhofer a Jupiter, Florida native.
We want to replicate this model in other areas of great need and this model can be expanded as well to Honduras and El Salvador. The diaspora communities can also help play a role in the expansion of these schools, that promote vocational training and entrepreneurship.
The Governor of Florida could play a role in promoting trade and tourism with these three Central American nations. We need a holistic, coherent public/private approach toward the Northern Triangle- so that men, women and children do not have to feel the need to leave their villages and cross borders at all costs.
Aileen Josephs, Esq. is a member of the Board of Directors of the Palm Beach Center for Democracy and Policy Research and an Honorary Consul of Guatemala in Palm Beach