The New Yorker: “How the Trump Administration Uses the 'Hidden Weapons' of Immigration Law”

Isaac Chotiner, a staff writer at The New Yorker, interviewed Aaron Reichlin-Melnick, the policy counsel at the American Immigration Council, about President Trump’s impact on American immigration policy, from travel bans to changing how asylum claims are made at the US-Mexico border. Reichlin-Melnick says that the Trump administration has had success in finding “the hidden weapons in existing immigration law” and using “them to the full extent, which no one had ever imagined would ever be done.”

In the interview, Reichlin-Melnick covers a variety of topics, including the international agreements that the Trump administration has made with Mexico, Guatemala, Honduras, and El Salvador, which have re-shaped who is arriving at the US-Mexico border; the travel bans, which are essentially nationality-based immigration restrictions; the child separations that are still ongoing; and, in particular, the “humanitarian catastrophe” happening at the U.S.-Mexico border because of the so-called “Migrant Protection Protocols” (MPP).

As Reichlin-Melnick explains, the MPP program is supposedly to increase access to court hearings but “what it is doing is forcing sixty-two thousand-plus asylum seekers to wait in appallingly dangerous conditions with no hope that they’ll ever have the opportunity to get a lawyer and virtually impossible chances of ever winning asylum, regardless of the strength of their claims.” Because of MPP, migrants have been subject to kidnapping and serious crimes like rape and torture. Reichlin-Melnick notes: “I often like to say the Trump Administration realized that Americans would rise up in anger when it saw our own government officials doing horrific things to people at the border, so what they did is they exported that—they outsourced the violence, and the crime, and the danger to the cartels in Mexico and let the cartels do the deterrence work that our agents were no longer able to do.”

The New York Times: “Trump Declares National Emergency to Build Border Wall”

President Trump declared a national emergency at the border this morning to access billions of dollars to build a border wall that Congress refused to give him, claiming that the nation faces an “invasion of drugs and criminals coming into our country.” The emergency declaration, issued after the spending package passed by Congress included none of his requested $5.7 billion for 234 miles of steel wall but instead only provided $1.375 billion for about fifty-five miles of fencing, will enable President Trump to divert $3.6 billion budgeted for military construction projects to the border wall. Those funds, along with the presidential budgetary discretion to draw $2.5 billion from counternarcotics programs and $600 million from a Treasury Department asset forfeiture fund and the $1.375 billion authorized for fencing, would total about $8 billion in all for construction of new barriers and repairs or replacement of existing barriers on the US/Mexico border.

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Washington Post: “Fact-checking President Trump’s Oval Office address on immigration.”

Last week President Trump addressed the nation in a speech about immigration and what he has claimed is a “crisis” at the US-Mexico border. Throughout the course of his nine-minute speech (which was made on the 18th day of the government shutdown), numerous fact-checkers and experts agree that the president painted an exaggerated and overall misleading picture of immigration to the US and the situation at the US-Mexico border. Fact-checkers across mediums confirm that the President’s speech pumped up some numbers, exaggerated the public safety risks of immigration, and repeated false claims regarding funding for the border wall.

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DOJ and DHS Issue New Rule to Block Certain Asylum Seekers at US/Mexico Border

On November 8, Acting Attorney General Matthew Whitaker and Department of Homeland Security Secretary Kirstjen Nielsen announced an Interim Final Rule declaring that foreign nationals “who contravene a presidential suspension or limitation on entry into the United States through the southern border with Mexico issued under section 212(f) or 215(a)(1) of the Immigration and Nationality Act (INA) will be rendered ineligible for asylum.” Under the new rule, based on the “Presidential Proclamation Addressing Mass Migration Through the Southern Border of the United States” that was signed by President Trump on November 9 the following day, migrants seeking asylum will have to make their claims only at official ports of entry on the border where according to the rule they will “be processed in a controlled, orderly, and lawful manner.”  

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Time: “Children ‘Don’t Need Jail.’ Immigration Advocates Say President Trump’s Executive Order Creates Even More Problems”

Last month President Trump signed an executive order that ends the separation of children from their parents under the zero-tolerance policy, which criminally prosecutes immigrants that cross the border without documentation. While President Trump made it clear that the zero-tolerance policy will remain in effect, the executive order states that it is now the administration’s intention to keep immigrant families together throughout the criminal proceedings process. “I didn’t like the sight or the feeling of families being separated,” Trump said at the signing. “At the same time, we are keeping a very powerful border, but continue to be zero tolerance.”

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New York Times: “10 Shots Across the Border”

The death of a Mexican teenager four years ago in Nogales, Mexico and its aftermath has again led to serious questions about the agency’s use of excessive force as well as corruption within Customs and Border Protection’s (CBP) Border Patrol. In 2012, when Nogales police and the Border Patrol were alerted to two drug smugglers at the border wall that splits Nogales, one Border Patrol officer, Lonnie Ray Swartz, who claimed that rocks were being thrown at the officers, opened fire. He shot sixteen-year-old José Antonio Elena Rodríguez on the Mexican side of the border. Rodriguez’s death was, in the words of James F. Tomsheck, who at the time led CBP’s Office of Internal Affairs, the “most egregious’’ of any excessive-force cases he’d seen at the agency, telling the New York Times that he felt ‘‘angry and sickened. Even if he had been throwing rocks previously—it’s conceivable, but there’s no evidence. But this was evidence of a Border Patrol agent shooting an unarmed boy.’’ By not charging the agent, Tomsheck said, the message would be that it’s “open season at the border.’’

Tomsheck, who has since left the agency, has been a severe critic of CBP’s handling of violence and abuse claims as well as CBP leadership, which he said had ‘‘a well-established history of intentional misinformation. Having sat through these meetings for years, after every one of these shootings, there’s an effort to spin and distort facts and obscure a clear understanding of what actually occurred.’’ In his position in Internal Affairs at the agency, he claimed that he held little actual power to investigate and remedy the misconduct claims. “We had a mandate to hold the Border Patrol accountable but were given very few to no authorities to do that job,’’ he told the New York Times.  ‘‘From Day 1, they aggressively resisted every effort.’’

In the past years, CPB has been accused of many instances of excessive force and abuse, including the shooting death of a Mexican man who was at a park with his family when a Border Patrol boat opened fire on a crowd of people, as well as other instances. A 2013 investigation by the Arizona Republic found that since 2005, CBP agents had killed forty-two people, and few had faced any repercussions even when the justification for the shooting was in doubt. While on average one CBP officer was arrested every day between 2005 and 2012—144 of them for corruption-level offenses—historically, Border Patrol agents have been rarely disciplined for misconduct allegations. In the case of Rodríguez, the officer who killed him was indicted three years after the teenager’s death, and only after the family’s civil lawsuit against the officer brought the case to public attention.  

One possible reason for the increase in misconduct cases over the years has been the dramatic surge in the number of border agents after September 11, along with the militarization of the agency. The number of Border Patrol agents doubled from 11,000 to 22,000, during President Bush’s second term, and the border patrol received such military hardware as drones, assault rifles, and Black Hawk helicopters. This arguably resulted in inexperienced agents with excessive firepower and a military-like mindset who often escalated tense situations.

In their defense, CBP agency leaders have said that critics don’t understand the threats Border Patrol agents face, and that it’s easy for those to judge who don’t “wear green,” a reference to the border patrol uniforms. With dangerous drug cartels operating on the border, agents must be vigilant in the threat of extreme violence. "Anything that is out there can be used against our agents," Hector Garza, spokesman for the Laredo local of the border agents union, told the Los Angeles Times. "Mesquite wood, firearms, rocks, you name it." The National Border Patrol Council, which exclusively represents approximately 18,000 Border Patrol Agents and support personnel, claims that despite being one of the largest law enforcement agencies in the US, Border Patrol agents “use lethal force seven times less than the average law enforcement officer nationwide. The facts don't lie, we stand by our agents and the truth.”