Join the ACLUNM for a night of reproductive health, rights, and justice trivia and games!
We will have prizes for our game night winners!
Date: August 19
Time: 5:30 p.m.
Virtual Event
This op-ed was originally published in the Las Cruces Sun News and the Santa Fe New Mexican.
Too often, our nation has learned who we don’t want to be from the mistakes of our past. Indeed, asylum laws were born of a shameful history — our government’s failure to shelter thousands of Jewish people fleeing state-sponsored persecution by the Nazi regime. In his four years in office, Trump decimated those asylum protections more than any other president before him. President Biden promised to restore a humane approach to asylum and uphold our nation’s promise to allow people fleeing violence and persecution the opportunity to seek safe sanctuary in our country. But one of Trump’s most extreme and restrictive policies remains and it's illegally shutting the United States off from vulnerable migrants fleeing desperate conditions.
Last March, Trump exploited the COVID-19 pandemic to further his anti-immigrant agenda, using Title 42, a public health order, to justify the immediate expulsion of any migrant who approaches the U.S. border. Weaponizing the order in this way runs afoul of both U.S. and international laws that protect refugees and has no basis in science. It has sparked condemnation from immigrant rights organizations, public health and medical experts, and United Nations High Commissioner for Refugees Filippo Grandi. Yet, nearly seven months into the Biden presidency, the order remains.
"There is no legitimate public health rationale for denying asylum seekers the opportunity to plead their cases, as countless public health officials have pointed out."
Though the Biden administration has made exceptions for unaccompanied minors and a limited number of vulnerable families, in part due to ACLU litigation, single adults and many families continue to be turned away at the border. Many are expelled to Mexico, where they are at risk of further violence and don't have access to proper food, shelter or medical treatment.
The Title 42 order is anything but the humane approach Biden promised. Though the administration claims the order is aimed at protecting people from the threat of COVID-19, there is no legitimate public health rationale for denying asylum seekers the opportunity to plead their cases, as countless public health officials have pointed out.
The order cites “congregate settings” that migrants are typically held in once inside the United States as a justification for suspending their entry, stating that the facilities are not set up for social distancing or to deliver adequate medical care. We agree. These facilities are not designed to care for people in normal times, let alone in times of emergency. That’s why the Biden administration should focus on community-based alternatives to detention, and allow people seeking protection to stay with friends, family, and community members as their immigration cases proceed. Recent research shows that 99% of asylum seekers who were not detained or who were previously released from immigration custody showed up for their hearings in 2019.
"We can uphold our asylum laws and protect the public’s health. And we must."
The federal government is capable of safely welcoming asylum seekers with dignity and adhering to CDC-endorsed best practices during initial processing, including social distancing, masking and testing. The government has already proved capable of this in processing families and other vulnerable migrants who qualify as exceptions for humanitarian reasons under Title 42.
We can uphold our asylum laws and protect the public’s health. And we must. Because denying migrants the legal right to seek asylum and sending them into harm’s way only creates a different kind of a public health crisis. After all, no one can live a life of dignity and health if faced with the continual threat of violence and persecution.
People seeking asylum bring courage, hope and resilience to our country and deserve to be treated with compassion. As a border state, New Mexico has an added responsibility to call out the callous indifference happening in our backyard and to advocate for those who our state could help shelter from violence. There are numerous community-based organizations ready to help. Now, we need our local elected officials to show courage. We ask them to contact us and join us in sending a joint letter to the administration calling for an immediate end to the illegal and inhumane use of Title 42.
In the days after his nomination, Homeland Security Secretary Alejandro Mayorkas signaled his willingness to make a decisive break from Donald Trump’s racist and anti-immigrant policies. Mayorkas is the first Latino and the first immigrant to lead the Department of Homeland Security, the government agency that is most responsible for delivering the “fair and humane” immigration system President Joe Biden promised as a candidate.
As he approaches the sixth month anniversary of his confirmation, Mayorkas’ progress report is mixed: Despite some notable high marks, the incremental approach Mayorkas has embraced is not doing enough to reverse the drastic restrictions of the Trump administration and to end the ongoing trauma inflicted by America’s inhumane immigration enforcement system.
While there’s been a sharp decrease in ICE arrests, a trend that began before he assumed his position, some ICE agents are flouting the administration’s directives and ICE continues to intimidate immigrants across the country in collaboration with local police.
Mayorkas moved to close two detention sites in Georgia and Massachusetts, but ICE has doubled the number of immigrants and asylum seekers locked up in detention centers under his watch, and kept open dozens of facilities with appalling records of abuse and neglect. And while Mayorkas ended the “return to Mexico” policy implemented under Trump, he has largely continued Trump’s illegal misuse of the Title 42 public health authority to expel people seeking asylum without due process.
Here’s how Secretary Mayorkas’ record in three key areas — reining in ICE abuses, closing ICE detention centers, and taking a fair and humane approach to border policy — matches up with his rhetoric and voters’ mandate to dismantle Trump’s anti-immigrant policies and bring humanity and fairness to our immigration system.
However, Mayorkas has repeatedly declined to rein in ICE agents in other ways. He rolled back the Biden administration’s initial move to largely prohibit agents from conducting street arrests, which have involved “snatch and grab” operations, where agents in plain clothes force people off the street into unmarked cars, and agents masquerading as local police — in violation of the Fourth Amendment.
Agents are now justifying arrests by categorizing people as “priorities” even though they do not meet the criteria set out in the May memo, resulting in thousands of people wrongly deported.
Mayorkas’ DHS has also not done enough to reduce ICE’s tentacular reach into communities across the country. Since the early 2000s, ICE has tapped state and local police, sheriffs, and corrections officials to participate in arrests and deportations through the 287(g) program, Secure Communities program, and ICE detainers. These programs have emboldened local police to engage in racial profiling, incentivizing pretextual arrests made on state or local criminal grounds — with the actual goal of identifying immigrants to detain for ICE.
The Trump administration used these programs to intimidate immigrant communities and drive a wedge between them and local law enforcement. The 287(g) program expanded to an additional 116 partner agreements with local law enforcement under Trump. Despite promises President Biden made on the campaign trail, DHS has only ended one 287(g) agreement, and has left in place Trump-era changes making these partnerships last indefinitely instead of three years.
Secretary Mayorkas has the power to end the 287(g) program, fundamentally reform ICE, and decouple its work from local policing.
In May, DHS announced the closure of two sites: Bristol County House of Corrections in Massachusetts and Irwin County Detention Center in Georgia, the site of horrific allegations of abuse, including the use of tear gas against detained people seeking safety from COVID-19, forced hysterectomies, and systemic medical neglect. In July, ICE announced a policy against detaining and arresting pregnant, postpartum, and nursing individuals — a shift long sought by the ACLU and other advocates.
These were positive steps, but Mayorkas failed to seize the opportunity to shrink the ICE detention machine. In February, after Mayorkas was sworn in, ICE held approximately 13,500 people in detention each day — compared to a high of 56,000 people per day under the Trump administration. Instead of taking the opportunity to close detention sites — saving millions in taxpayer dollars — and expand the use of community-based alternatives to detention, ICE in recent months has doubled the average daily population of detention facilities. As of July, DHS reports an average daily detained population of 26,200 people.
The Trump administration signed unusually wasteful contracts that expanded the use of private prison companies and opened detention centers in facilities with lengthy histories of abuse. The ACLU called on Mayorkas to shut down these and other facilities, identifying 39 detention sites with inhumane and life-threatening conditions and extremely limited access to legal counsel. Yet the administration has only closed two, and asked Congress to fund 30,000 detention beds in the coming year.
While the Biden administration moved to end the Justice Department’s contracts with private prisons operating criminal detention sites, it has not extended that to immigration. Immigrants and people seeking asylum continue to languish in privately operated prisons that are incentivized to keep conditions poor and even unsafe to maximize their profits.
Perhaps most galling, as detention sites close, ICE is choosing to transfer people to other detention facilities rather than release them to their communities and families — undermining hard-won progress and jeopardizing the health of detained people, as well as their ability to effectively present their cases.
Mayorkas still has an opportunity to bring lasting change to this system. He should recommit to closing ICE detention sites that fail to ensure the health and safety of detained people, and make a new commitment to review and close detention sites where people do not have meaningful access to counsel. Moreover, as detention sites close, he should require that ICE prioritize the release of detained people — rather than their continued detention elsewhere.
Mayorkas and the Biden administration have a mandate from voters to reform an immigration system that has been weaponized, politicized and made increasingly punitive. We will continue urging Mayorkas to prioritize major reforms to undo the harm the Trump administration caused to families and communities, and to make substantial progress toward rebuilding the asylum process and reining in abuses by ICE and its agents.
