New Administration, New(ish) Immigration Rules: Policy Continuity and Change Under President Biden and the Experience of Georgia Communities

Key Takeaways

  • Georgia has 18,000 DACA recipients. These recipients rely on DACA to be able to work and live without having to worry about the threat of deportation. As DACA continues to play out in the courts, thousands are left in limbo with no permanent solution.
  • Migrant Protection Protocol was used to stop thousands of migrants from accessing the right to apply for asylum. It has also contributed to the backlog of immigration cases, which has caused hundreds of Georgia families to delay reunification.
  • Title 42 has been used by presidential administrations to combat the spread of COVID-19. Yet, their interpretation and the execution of the policy are rooted in racist and xenophobic ideology.
  • Georgia was previously home to three major Immigration and Customs Enforcement (ICE) Detention facilities. While none of the facilities have had a great track record for the treatment of detainees, Department Homeland Security (DHS) secretary Mayorkas was forced to shut down Irwin detention center due to human rights abuses.
  • The 2020 election brought about many changes in local enforcement and 287(g). Priorities have shifted to targeting individuals who are deemed a threat to public safety. Also, residents of Gwinnett and Cobb elected sheriffs who have fulfilled their promise to end their participation in the 287(g) program.
  • The change in public charge has caused many immigrant families regardless of immigration status to forfeit public benefits that they or their children are eligible to receive. Many of Georgia’s immigrant families have had to live without assistance for fear that it may jeopardize their opportunity to adjust their status.

As we wait for Congress to act on immigration, the courts and pending ligation have played a huge role in determining how the United States deals with immigrants and immigration.

The 2020 election brought in a wave of change in every policy area, including immigration. The cornerstone of the 2016 Trump campaign was anti-immigrant and anti-immigration. During President Trump’s tenure, he delivered on his campaign promises by employing and lifting up anti-immigration policy experts as advisors. This paved the way for some of the most restrictionist policies enacted in the 21st century, even when compared to the Obama administration during times of high deportation rates. Families being separated at the border and on their front steps started to become the norm.

During some of the Obama years and all of the Trump years, the immigrant community dealt with attacks on Deferred Action for Childhood Arrivals (DACA),  immigration court backlogs and constant fear of what could be next. As COVID-19 took hold, the policy landscape began to change, and survival became paramount.[1]

When President Biden took the reins, immigration advocates were hopeful that the administration would reverse the restrictionist policies of the Trump administration, but the results have been mixed. For the last nine months, the new administration has been piecing the immigration system together and battling the courts to ensure changes are permanent. While many policies were reversed, others, combined with the threat of COVID, stayed in place, all of which have had an impact on Georgia’s immigrant communities.

Deferred Action for Childhood Arrivals (DACA) Has Helped Thousands of Undocumented Youth in Georgia and Nationwide

Deferred Action for Childhood Arrivals, or DACA, has been in place since 2012 and has helped around 800,000 undocumented people live and work without having to worry about the threat of deportation. In September 2017, the Trump administration formally announced the end of the program. Although Trump made the formal announcement, Attorney General Jeff Sessions, a long-time anti-immigrant advocate and DACA critic, made the argument that the policy was unconstitutional and illegal. For almost a year, DACA recipients were able to renew their status, but no new applicants were accepted, and the administration continued to deny applications even after the Supreme Court ruled in favor of DACA in July 2020.[2]

During that time, Secretary of Homeland Security Chad Wolf issued a memorandum making significant changes to DACA, requiring yearly renewals instead of renewals every two years and excluding new applicants who were previously eligible but had not applied yet. In November and December 2020, a federal judge in New York set aside the limits in the Wolf memo and ordered DHS to start accepting new DACA applications.

In July 2021, Federal Judge Hanen found DACA to be unlawful in a lawsuit brought by the state of Texas. This ruling blocks any new DACA applications from being approved. The Biden administration has always been committed to keeping DACA and providing help to young undocumented immigrants who arrived in the U.S. as children (also known as DREAMERs). In October of this year, the administration offered a rule change to DACA to decouple work authorization and deportation protection. However, advocates rightfully continue to ask for permanent protection for members of our community. Georgia is home to over 18,000 DACA recipients who live, work and attend school without the fear of deportation because of deferred action. Georgia is also home to around 15,000 would-be DACA applicants who have to place their lives on hold until DACA plays out in the courts. Although DACA is a great piece of policy that has helped thousands nationwide, DREAMERs deserve a permanent solution that will not change on a whim.

Migration Protection Protocol (MPP) has Forced Thousands of Migrants to Stay in Mexico

The Migrant Protection Protocol, or “Remain in Mexico,” was implemented by the Trump administration in early 2019 to prevent migrants from waiting in the US while their asylum case is adjudicated. This policy has been met with tremendous resistance from pro-immigrant advocates because it continues to place would-be asylees in danger by forcing them to stay in a foreign country with no protections or timeline for when their case will be heard. In February of 2020, the MPP was ruled to be illegal, and the Trump administration was advised to stop the program. However, as COVID-19 continued to spread, the Trump administration found reprieve in Title 42, a policy meant to suspend all migration into the United States, as a way to expel migrants under the guise of public health. The MPP and its subsequent expansion contributed to lowering the number of apprehensions and detentions at the border.

In June of 2021, the Biden administration formally ended the MPP. The policy was largely phased out by the previous administration to rely primarily on Title 42. However, in August, a federal judge, a Trump appointee, ordered the Biden administration to reinstate the policy after Texas and Missouri sued. The Department of Homeland Security, although critical of the policy, has said they will keep the policy in place but will continue to look for other avenues to permanently end it.

According to Atlanta-based immigration lawyer Charles Kuck, through MPP, Title 42 and other means, the Trump administration completely gutted the immigration process, creating a backlog that would take years to get through, and the Biden administration has done little to improve the process. Kuck states that Trump loyalists continue to derail any improvement, asylum interviews have not happened for years and Georgia families have not been able to reunite.

Title 42, a Policy to Prevent “Communicable” Disease is Used Arbitrarily to Stop Migrants From Seeking Asylum

Title 42 is a policy that gives the Director of Centers for Disease Control and Prevention the power to suspend entry of any persons or goods from entering the United States when a “communicable” disease from a foreign country poses a public health threat to the US. This policy, around since the late 1800s, has gone through various changes but had never been enacted to control immigration until the COVID-19 pandemic. The Trump administration used this policy to expel and turn away hundreds of thousands of migrants, including unaccompanied minors at the border. By the time Trump finished his presidency, his administration had expelled 520,000 people through Title 42 and other means.

Once Biden came into office, many pro-immigrant advocates believed the administration would do away with Title 42. Early in the administration, there was a promise to slowly roll back the policy by allowing only family units to enter and then completely doing away with the policy by the end of July. Yet, as COVID-19 cases began to rise again, the administration decided to extend Title 42 with no clear indication of when it would end.

Since its enactment, Title 42 has been very contentious. This policy when carried out without discrimination does have a public health basis meant to keep the United States and its inhabitants safe and mitigate the spread of disease. However, as it stands today, Title 42 is an arbitrary policy that keeps migrants from claiming asylum. According to the American Immigration Council, since Title 42 was put in place almost 9 million people have entered the United States through various ports of entry either by walking or in cars without having to be subjugated to the policy or without having to be tested upon arrival. Yet migrants who are successful in entering are tested before being sent to shelters and, if positive, are made to quarantine.

Title 42 recently took turn for the worse when Haitians started to arrive at the southern border to seek asylum. They were terrorized by Border Patrol Agents and turned away under this policy. As a first-generation Haitian American and Gwinnett resident, Berthine Crèvecoeur West explained that Haitians experience racism and prejudice on two levels, first for being Black and second for being immigrants. Crèvecoeur West notes that people have various reasons for wanting to leave, but everyone has a common goal of wanting something better than what they currently have. Haitians have dealt with political unrest, poverty and natural disasters, and we continue to turn them away under this arbitrary policy.

Detention has Increased as Biden Relies Less on Trump-Era Policies; A Georgia-Based Detention Center was Forced to Close Due to Human Rights Violations

Detention under both the Trump and Biden administrations looks vastly different. As people continue to get caught up in the crimmigration system, the intersection of criminal and immigration law, enforcement priorities have shifted. During the Trump administration and before the pandemic, enforcement was mainly focused on ICE detaining people within the country rather than arresting people at the border. As previously stated, the Trump administration relied heavily on MPP to stop people from being able to wait in the United States while their asylum case was pending. Once the pandemic started to take hold, the administration used Title 42 to keep detention numbers down.

Immigrant detention has grown since the Biden administration took over. Towards the end of Trump’s presidency, the detention rates for ICE and Customs and Border Protection (CBP) were trending downward. During the last 10 months of the Biden administration, there has been a significant increase in CBP detention. While the Biden administration continues to use MPP and Title 42, they are not relying on those policies as heavily as the previous administration. However, the rates have not yet reached the peak detention levels from 2019.

Georgia plays a huge role in immigration detention. The state, up until recently, was home to three immigration detention centers: Irwin County Detention Center, Stewart Detention Center and the Folkston ICE Processing Center. All of the centers are privately owned and are major employers in the counties where they reside. Every center has been accused of mistreating detainees, but in September of 2020, a whistleblower exposed the Irwin County Detention Center of performing unwanted medical procedures on female detainees. As a result, in May 2021, the Secretary of DHS instructed that no more detainees would be sent to the facility, and in September all ICE detainees were moved to the Stewart Detention Center.

The Stewart Detention Center now holds the second-highest number of ICE detainees, and Georgia is fourth in housing ICE detainees in the nation.

Enforcement/287(g) Policies Continue to Evolve

Enforcement policies such as 287(g) continue to evolve to prioritize those who are threats to national security. Gwinnett and Cobb no longer participate in 287(g).

Immigration enforcement differs in every administration. The Trump administration had a harsh interpretation of enforcement that focused on stopping migrants and asylees from entering the country and arresting and deporting undocumented people regardless of crime and criminal history. These new enforcements led to an increase in ICE arrests from 2016 to 2018. This was a departure from the Obama administration where the enforcement priorities were focused on the violent criminals, new arrivals and those with an extensive criminal history. Even as deportations and arrests increased under the Trump administration, they never reached the levels seen during the first six years of Obama’s presidency and this is partly due to that lack of cooperation from sanctuary cities. It is also important to note that apprehensions at the border during FY 2019 were the highest seen in 12 years meaning that thousands of migrants were denied entry and thus not counted as arrested or deported.

During the Biden administration’s first days in office, two memos were released updating the immigration enforcement guidelines. The new enforcement would focus on the detainment and deportation of persons who are a threat to national security, border security and public safety. The memos also gave ICE officers discretion on whom to detain based on criminal history and severity. These rules have been in place since early 2021. However, shortly after these memos went into effect, a Trump-appointed judge from Texas enjoined the implementation of the new enforcement priorities. In October 2021, DHS Secretary Mayorkas put in place new guidelines that mirror the enforcement guidelines set by the Biden administration.

Immigration enforcement in Georgia differs from county to county due to the 287(g) program, which allows local law enforcement to act on behalf of ICE and detain undocumented immigrants. Until 2021, Georgia had eight law enforcement agencies that participated in the program with Gwinnett and Cobb Counties being the most prolific. Gwinnett ranked No. 5 in ICE detainers in the nation, and Cobb ranked No. 2 in the state for ICE arrests, just behind Gwinnett. The 2020 election ushered in new sheriffs for Gwinnett and Cobb both of whom decided to opt out of the program. Undocumented immigrants in these counties are now able to interact with law enforcement without having to worry about the threat of deportation.

Public Charge Deters Immigrants from Public Assistance

Public charge has been used to deter immigrants from accessing public assistance leaving them unable to care for their families. Although the policy has changed, the lasting effects are still felt.

The public charge rule, much like Title 42, has been in existence for decades and has gone through many iterations, while the core definition has remained the same and the rule continues to represent a broader trend to criminalize poverty. Historically, the rule has been used to prevent immigrants of color from entering the country.  Under the rule, a public charge is a person who needs, has needed or is likely to need the assistance of TANF or other cash-based programs. This rule was meant to bar immigrants who may need economic support from entering the United States. The Trump administration changed that rule in 2018 to deem any person who receives government assistance for at least 12 consecutive months a public charge, thus barring them from being able to adjust their immigration status.

As a result of this rule change, around 260,000 children nationwide were taken off food and health assistance programs by their parents. Undocumented immigrants have never been able to access government assistance of any kind; however, their citizen US-born children do have the right to public benefits. The public charge under Trump was done to purposely make immigrants of any status feel unwelcome and unwanted. According to the Urban Institute, 13.7 percent of immigrant families either did not apply or were unenrolled in public assistance. For Latinx families, that figure went up to 20.6 percent.

After years of being debated in the courts, in early March 2021 the Biden Administration filed and was granted motions to dismiss its appeals by the Supreme Court. The decision allowed the Department of Homeland Security to revert to the original rule which would let immigrants apply for social services without it having a bearing on their immigration status.

In Georgia alone, there were 260,000 children that could have been negatively affected by the rule change for simply having immigrant parents. Cynthia Roman, Managing Director of Family Services at the Latin American Association, saw firsthand the fear and worry many families experienced. Many thought it could affect their children negatively in the future or that their child might even be taken by the government. During this time, various local social service agencies reported a decline in immigrant clients, primarily from the Latinx community, applying or renewing their applications for services. Many agencies stated the decline was a result of the public charge rule. When looking at SNAP data for the state, from Fiscal Year (FY) 2013 to FY 2020 there was an overall decrease in monthly average recipients, but there was a sharp decline between FY 2017 and FY 2018. When the counties with a high Latinx and immigrant population are isolated, they also show the same sharp decline in monthly average recipients seen statewide. However, when compared to DeKalb, which has a low Latinx population and high immigrant population, it does not exhibit the same steep decline.

Conclusion

Although immigration policy is a federal matter, the effects are still felt at home. The situation often feels bleak and our capacity to influence it remote, but there are simple policy solutions that Georgia can implement to ensure immigrants feel welcomed.

In-state tuition for undocumented students has the potential to break down the financial barriers that many undocumented students face when they want to pursue higher education. Having access to higher education also opens up the possibility of upward mobility and better economic outlook.

Getting rid of 287(g) in the remaining counties where it currently exists is also a simple way to allow immigrants to live without fear of deportation. Gwinnett and Cobb have both provided an example that other counties can follow.

Finally, reaching out to your Congress member and making your voice heard on this issue is vital. Because immigration plays out on the federal stage, we need to make sure our representatives know that there is a need and desire for an immigration solution. Recent provisions in the federal reconciliation package to provide a pathway to citizenship for the undocumented illustrate what is possible when individuals engage their elected representatives.

Change is possible. As immigrants continue to call Georgia home, we have a duty to help our neighbors lead safe and dignified lives without fear of arrest and deportation.

Endnotes

[1] Angel, S. (2019, December 22). Immigration primer. Georgia Budget and Policy Institute https://gbpi.org/immigration-primer/#_edn5

[2] Department of Homeland Security v. Regents of the University of California. https://www.supremecourt.gov/opinions/19pdf/18-587_5ifl.pdf

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