Setbacks in U.S. courts come on top of ongoing anti-immigrant policies and racist rhetoric.

March 17, 2020As the Trump administration enters its fourth year, it is worth taking stock of the devastating impact it has had on immigrants and people seeking humanitarian protection.  The anti-immigrant drum-beat started early, followed quickly by policies designed to deter, detain, and deport people deemed undesirable by the administration. For a time, some of the most draconian measures were blocked in the courts.  But now, despite the tireless work of civil society organizations, we are seeing decisions in higher courts that affirm the efforts to dismantle protections for asylum seekers, and further erode the rights of immigrants and their families.

US Supreme Court begins to weigh in on migration-related cases

In recent weeks, the US Supreme Court held hearings and handed down decisions on several migration-related cases. The Court heard arguments regarding the constitutionality of criminalizing people who “encourage” irregular migration (as described under a 1986) law.  The court issued a decision in the case of Hernandez v. Mesa in which it determined that the parents of a Mexican teenager who died in Mexican territory after being shot by a U.S. Border Control agent, could not sue without specific legislation authorizing them to do so. Last week, the Court also refused to uphold the suspension of the Migrant Protection Protocols (MPP) in Arizona and California that had been ordered by the 9th Circuit Federal appeals court.  The California appeals court had blocked the implementation of the program that returns asylum seekers to Mexico, finding it illegal due to the harm imposed on those seeking protection. If this trend holds up, it could weaken the role of the judicial system as a last-resort safety net for protection.

A case study in dismantling systems of international protection 

The Trump administration has worked systematically and tirelessly to weaken and restrict systems of humanitarian protection, particularly asylum and protection against torture. This administration has gone out of its way to create obstacles, to punish and mistreat people seeking protection, and to limit the categories of people whom it deems “deserving” of  protection. New programs would establish protocols to further restrict access to legal representation and keep people deprived of their liberty. Asylum agreements are being implemented that send applicants against their will to Guatemala and soon to El Salvador. Angered by a decision by an immigration judge to grant protection to a Mexican man who had been tortured, Attorney General William Barr changed the rules  to restrict the defintion of torture, thus undermining the authority of immigration judges, and further slamming the door on protection to victims.  A recent report revealed that the government uses information obtained in compulsory therapy sessions for children in its custody against those children when they seek asylum, a clear violation of the psychologist-patient relationships.

Unrelenting tide of anti-immigrant measures continues

Recently, the government announced the creation of an office in the Department of Justice specifically charged with revoking U.S. citizenship to those who have fraudulently obtained it.  It has denied the citizenship test in Braille for visually impaired applicants, and used the courts to back its effort to restrict funding to states that refuse to mingle local law enforcement with immigration enforcement. The Trump re-election campaign recently had to remove misinformation on Facebook about the Census that could have caused people to mistakenly believe they had completed the census survey.

Xenophobic rhetoric versus reality 

The Trump administration has consistently demanded and received more resources to lock down the border and stop the arrival of foreigners.  However, a recent analysis by the Pew Research Center concluded that the past three years have seen neither the highest number of entries, nor the largest numbers of arrests and deportations in recent history. It appears that the Administration’s cries of “crisis” and demands for increased funding were neither warranted by the numbers, nor particularly effective, except in creating a climate of fear in migrant communities, and feeding the racist and xenophobic appetites of its base.

As we analyze the collective impact of all these policies, it is important to remember that the entire system has been weakened. Repairing the damage will require more than repealing or revoking a few rules.  We will need to broaden and redefine the conditions and paths towards permanent residency, and at the same time strengthen and expand international protections, taking into consideration new pressures driving forced migration, including climate change.  We also have a major task ahead to counter the rhetoric of xenophobia and recognize the many and diverse contributions of migrants to our social fabric.