immigration policy

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Last week, Proskauer hosted a panel discussion focusing on the recent influx of migrants crossing the U.S. southern border and the urgent need for pro bono legal services. According to The New York Times, this past fiscal year nearly 2.5 million migrants crossed the U.S.-Mexico border, which is two and a half times greater than the number from four years ago. The large number of recent arrivals has overwhelmed an already strained system, as demonstrated by the current backlog of three million immigration cases — which has doubled since 2021 — pending before just 800 judges. 

This week we had the privilege of speaking with Catherine Cole, the Executive Director of Grannies Respond, about the impact the “Grannies” have made through their efforts to advance immigrants’ rights, and how Proskauer’s pro bono work has supported the Grannies in their mission.

Grannies Respond / Abuelas Responden, Inc. is a grassroots movement and nonprofit organization that supports immigrants seeking asylum and safety in the United States.  What inspired Grannies Respond to take on this mission?

In July 2018, the U.S. government’s separation of children from their families at the southern border broke many hearts.  Children as young as five months old were taken from the parents who had brought them here to escape life-threatening conditions in their home countries and to seek asylum.  Many people watched the news of the separations and felt helpless, but Dan Aymar-Blair, the creator of Grannies Respond, was discussing the separations at the border with friends and said “why don’t we put a bunch of grannies on a bus and go down there?”  Grannies are the heart of the family and would never stand for separations.  For our purposes, you don’t have to be a grandmother to be a “grannie” – we welcome everyone who supports the cause of immigrants’ rights. 

The families and children migrating from Central America have suffered terrible traumatic experiences, and a recent report by Physicians for Human Rights (PHR), a non-profit advocacy group, addresses the serious, long-term medical consequences of this trauma. These important findings provide compelling support for more humane immigration policies, and inform best practices for lawyers working with immigration clients.

Trauma Suffered by Young Migrants

Multiple studies link trauma to long-term negative health outcomes, including chronic disease, impaired cognitive development, and mental health conditions. With analysis by medical school faculty and students from Weill Cornell Center for Human Rights, the report is significant for its sole focus on child asylum seekers. Out of the 183 children in the study, nearly 80% experienced direct physical violence, 71% experienced threats of violence or death, 59% witnessed acts of violence, and almost 20% experienced repeated sexual violence or exploitation. Sixty percent of the children experienced some form of gang violence, and 47% experienced violence perpetrated by family members. A constant theme among the children was the lack of protection from law enforcement in their home countries. (Eighty-nine percent were from El Salvador, Guatemala, and Honduras.)  Many also reported traumatic experiences during transit to the U.S. through dangerous terrain, with inadequate food or water, where they remained vulnerable to continued acts of violence.

In A Nation of Immigrants, President John F. Kennedy traced America’s mixed record of embracing new immigrants, and then emphasized the benefits of immigration as he argued in favor of reforming the system. “Nativism failed,” he concluded, “not because the seeds were not there to be cultivated, but because American society is too complex for an agitation so narrowly and viciously conceived to be politically successful.”

More than 50 years later, American society has grown more complex but now finds itself with increasingly restrictive immigration policies. During a panel discussion hosted at Proskauer’s New York office this month, Valarie McPherson, Savanna Sosa and I surveyed recent developments in immigration policy, especially as they relate to restricting asylum, and shared insights from our recent trip to Mexico, and Jeremy Robbins, the executive director of New American Economy (NAE), a bipartisan advocacy and research organization, addressed how we can change the immigration narrative for real reform. 

Since my trip to the U.S./Mexico border last summer, the situation for families seeking asylum has only become more challenging, especially in light of the Administration’s new “Remain in Mexico” policy.  This week, I am in Mexico along with Proskauer colleagues, Valarie McPherson, special immigration counsel, and Savannah Sosa, a project assistant.  We are providing asylum presentations and individual consultations in partnership with Institute for Women in Migration, IMUMI (www.imumi.org).

The new policy raises a number of questions, but first some background.

The Remain in Mexico Policy

On December 20, 2018, the Administration announced that it would begin implementing a “Remain in Mexico” policy – officially dubbed the Migrant Protection Protocols (MPP) – which requires asylum-seekers from Central America at the southern border to wait in Mexico for the duration of their U.S. immigration proceedings.  This marks a fundamental shift in asylum policy because, until now, asylum-seekers who lack valid entry documentation generally have been placed in expedited removal proceedings.  Applicants who passed a credible fear interview were then allowed to remain in the U.S., pending immigration court proceedings.

U.S. immigration policy has changed quickly and substantially in the past two years. While a handful of policies have received the majority of media attention—such as the separation of families at the border—the Department of Homeland Security has implemented numerous, far less visible changes that have dramatically impacted the ability to seek immigration relief in this country. These policy changes have transformed the way in which lawyers and their pro bono clients must navigate the immigration system.

Accounting for Unpredictability

As a result of the exceedingly fast changes to immigration policy, it has become increasingly challenging to predict a client’s likelihood of obtaining certain types of immigration relief or to assess the risks associated with attempting to do so.

For example, in October 2018, the United States Citizenship and Immigration Services (USCIS) began implementing a new policy that mandates USCIS to issue Notices to Appear (NTA) in immigration court removal proceedings upon making an unfavorable decision on an immigration application where the applicant is an undocumented immigrant.  This far-reaching guidance would, for instance, encompass vulnerable undocumented victims of domestic abuse seeking humanitarian-based relief, thus creating a perverse disincentive for them to come forward and cooperate with law enforcement.  In June 2018, the Attorney General’s decision in Matter of A-B- purported to make it harder for immigrants to qualify for asylum based on gang or domestic violence, a decision that was, in turn, blocked in December by a federal judge in Washington, D.C.