Five issues the Biden administration must address on immigration

The electoral victory of Joe Biden over Donald Trump is cause for relief and celebration for many, but perhaps none more than immigrants and those who work to protect their rights. For four years, the Trump administration actively and openly worked to undermine legal protections for immigrants coming to or residing in the United States and instituted draconian policies designed to terrorize, brutalize, and criminalize immigrants. Now, as the country prepares for a new administration, many are wondering what immediate steps Biden may take to address the damage done by Trump on immigration. 

According to the New York Times, the Trump administration enacted more than 400 changes to the immigration process. Some of those policy changes were implemented through executive orders, which can easily be overturned, while others went through the full regulatory process and will take time to change.

As attorneys and advocates at Immigrant Legal Defense (ILD), we remain committed to protecting all immigrants' dignity and due process and will demand accountability from every presidential administration. The following are five critical areas the Biden administration must address to correct the wrongs our immigrant communities face. 

Protect DACA

The Biden administration should take immediate steps to protect and restore the Deferred Action for Childhood Arrivals (DACA) program, something which he pledged to do during his campaign. The Trump administration sought to end the DACA program in 2017, resulting in a lengthy legal battle and leaving more than 800,000 DACA recipients in limbo for years. 

Protecting and restoring the DACA program would not only provide DACA recipients with stability and support and allow for new applications but also help restore trust and faith between federal officials and immigrant communities. This trust is more critical now than ever as our society works to come together to confront challenges like COVID-19 and economic instability.

The restoration of DACA should be viewed as a simple and immediate step of a broader push to provide Dreamers and other immigrants a pathway to full citizenship, but it is an important place to start for the Biden presidency. Because DACA was initiated through an executive action, it is squarely within the President’s purview to restore the program, though a more permanent solution to the issue will need to come from Congress.

Uphold TPS Status

A similar opportunity for immediate action for the incoming Biden administration exists on the issue of Temporary Protected Status (TPS), which, like DACA, has left the fate of hundreds of thousands of immigrants in limbo for years. The sudden loss of status for TPS holders, some of whom have been residing in the United States for decades, would be disastrous, especially during a global pandemic. 

Read more about the fight over TPS in our previous blog posts here. 

Unlike DACA, which provides protection to a class of undocumented immigrants based on specific criteria, TPS status has been awarded to individuals from various countries at different periods of time based on conditions in their home country. As a result, any decision to include or exclude certain subgroups can present certain complications. For example, some may argue that TPS should end for certain countries that are no longer the scene of specific conflicts or humanitarian disasters. Advocates would counter that many of those countries now face new challenges that will make them unsafe for return and that those who have resided in the United States, often with mixed-status families, should be allowed to stay. 

Taken in the context of the prior four years, the global pandemic, and the need to favor inclusion over exclusion, the restoration of TPS across the board should serve as a natural starting point for the Biden administration.

The Biden campaign stopped short of promising to keep TPS in place across the board and instead promised to “immediately review every TPS decision made by the Trump administration and overturn all those that do not appropriately consider the facts on the ground.” 

The issue could serve as an early indication as to whether the Biden administration will seek to promote policies focused on compassion, providing humanitarian relief, and ensuring family unity or pursue a hard-line approach on these issues. 

Abolish ICE & Detention

The Trump administration will go down in history for its barbaric treatment of immigrants, weaponizing federal agencies as tools for fear, family separation, and the detention of immigrants. One of the central pillars of the Trump administration's reign of terror against immigrants was the utilization of Immigration and Customs Enforcement (ICE) as a tool to spread panic, conduct raids, and expand detention. 

Although the use of ICE to conduct raids and facilitate detention was not unique to the Trump administration, with many rightly pointing out that the Obama administration also carried out immigration raids, it was the callous cruelty and malice with which ICE operated under Trump that has led many to call for the abolition of the agency as a whole.

In July of 2019, Trump attempted to use the threat of mass raids to force Congress to pass legislation on asylum, effectively holding undocumented communities hostage and using federal agencies as stormtroopers in communities of color. Countless examples of ICE abuse and cruelty were documented during his tenure, arguably peaking in 2020 when news came out of forced hysterectomies in ICE detention and a dramatic increase in deaths in detention. 

This track record is the reason why so many believe that ICE should be abolished as an institution, along with immigrant detention, which is both needless, cruel, and counterproductive. After so much horror and heartbreak, the Biden administration should reimagine immigration detention policy by dismantling this rogue agency.

To date, Biden has not made a clear commitment to dismantle ICE, though he has promised to end the use of for-profit corporations, which make up more than half of all detention facilities nationwide. Biden has also committed to implementing a “100-day freeze on deportations while his administration issues guidance” on enforcement priorities. 

As a result, it is important for advocates and allies of immigrants to ensure that the Biden administration does not simply revert to Obama-era policies on enforcement and detention, which resulted in a broad-based detention system and millions of deportations.

Change Border Policies and Safeguard Asylum

There is perhaps no clearer example of the Trump administration’s cruelty than its policies at U.S. borders, including the “Muslim” travel ban, the destruction of asylum protections, and inhumane family separation. Each of these policies had devastating impacts on individuals and their families and resulted in needless suffering for millions of people. The treatment of immigrants, migrants, and asylum seekers at the border forms the foundation of immigration policies and practice, and careful attention should be paid to what the Biden administration does in this arena. 

Biden has made a commitment to immediately end the travel ban as soon as he begins his term, and has pledged to “[R]eassert America’s commitment to asylum-seekers and refugees”, claiming that he will take steps to reverse Trump border and asylum policies within 100 days of being in power. According to a New York Times report, “Mr. Biden also plans to raise the cap on refugee admissions to 125,000, impose a 100-day moratorium on deportations, and direct Immigration and Customs Enforcement to focus on violent offenders.” In addition, Biden has also indicated that he will reverse draconian measures at the U.S.-Mexico border, including the “Remain in Mexico” program, which forced migrants seeking asylum in the U.S. to remain in Mexico while they awaited their day in court. 

Many of these reversals are a welcome sign for advocates and asylum seekers, though the Biden administration has yet to provide specifics about an affirmative agenda related to asylum and migrants. It is imperative to not only demand that the Biden administration safeguard asylum laws but also a clear push to defund agencies such as ICE and CBP, which enforce family separation and invest in institutions that help resettle migrants, reunify families, and expand asylum to adapt to the modern and future challenges posed by climate change, global inequality, and mass displacement. 

Restore Trust in the Process

One of the most serious and devastating blows to the immigration process in this country under the Trump administration has been the erosion of trust, transparency, and fairness in the immigration process. This includes the destruction of due process, accountability, and fairness in immigration courts, the use of executive orders to attack immigrants, or the shift of United States Citizenship and Immigration Services (USCIS) from an agency designed to confer benefits to an agency of exclusion, led by an alleged white supremacist. A hallmark of the Trump era has been to undermine or disrupt all levels of the immigration process, severely restricting legal immigration into the country.

The impacts of these policies on America’s immigration process are significant and will likely take years to undo. The process will include attempting to deal with millions of cases that have been disrupted or denied proper adjudication before agencies like USCIS, the Department of State, and the immigration courts, while the longer-standing challenge will be to repair faith between these institutions and those who access or work with them. It is difficult to estimate the impact that these policies have had on immigrants awaiting a visa appointment abroad or those inside the country seeking to apply for benefits, but it is not difficult to believe that serious damage has been done.

To begin the process of restoration and healing, the Biden administration should make time and space to meet with community members, impacted people, and advocates in order to develop partnerships and solutions to move forward. Careful consideration should be paid to restoring due process, transparency, and fairness in the immigration process. Restoring trust can also begin with repealing and removing policies that increase fees for immigration applications, expedite deportations, or seek to deny immigrants status based on their use of certain types of public assistance.

This process will not happen overnight, but the early steps of the Biden administration will go a long way in building an immigration platform that works for everyone. 

Each of these five areas will provide a critical test for the Biden administration's ability to work with and protect immigrants and will require renewed dedication and vigilance from advocates and organizers. The election of Biden is certainly a reason for optimism, but we must continue to demand immediate restoration, protection, and expansion of the rights of our communities.

As we prepare for the transition to a new presidency, ILD will remain steadfast and determined in advocating for our clients, our community, and a country made by and for immigrants.  

AB 32 and the Future of Immigration Detention in California

On October 9th, a federal judge ruled that AB 32, a California law that bans the use of privately operated prisons and immigration detention facilities, is largely constitutional in a landmark decision with broad implications. The decision, issued by U.S. District Judge Janis Sammartino, found that AB 32 only regulates private prison operators and thus does not interfere with the federal government's operations. The ruling is a major blow to private prison corporations and Immigration and Customs Enforcement (ICE), both of whom sued California after Governor Gavin Newsom signed AB 32 into law in October of 2019. 

AB 32 bans the use of all private detention facilities in the state and requires all facilities to close upon the completion of their contracts. At the time of the bill’s signing, multiple immigration detention facilities were slated to close in 2020 until ICE and private prison companies signed new contracts for the four private facilities in operation in the state. The contracts secured just weeks before the January 1 start date for the law were slammed by advocates and Congressional officials as an illicit scheme to circumvent the law. 

Following the signing of those contracts, the GEO Group Inc., the second largest private prison corporation in the world, and ICE sued the state of California and asked a federal court to strike down AB 32 as unlawful. GEO also asked the court to find that the contracts they signed with the federal government were valid. The contracts at issue were reported to be five-year contracts, with two additional five-year options totaling fifteen years and valued in the billions of dollars. GEO specifically asked the court to deem the full fifteen-year terms of the various contracts as valid under AB 32 despite the bill not allowing for contract extensions. 

In anticipation of the hearing, Immigrant Legal Defense (ILD) and Immigrant Defense Advocates (IDA) filed an amicus brief with the court, which underscored the GEO Group’s history of bad faith behavior in the state of California and specifically challenged the validity of the contracts signed in December 2019, urging the court not to uphold them as valid. 

In a 75-page decision, Judge Sammartino noted that California has the right to regulate conditions of confinement and protect the health and safety of individuals in detention, writing, “The regulation of health and safety matters is primarily, and historically, a matter of local concern” and noted AB 32 “appears to be a regulation ensuring the health and welfare of inmates and detainees within California’s borders.”

With respect to the contracts at issue, Sammartino appears to have agreed with arguments raised by ILD and IDA in their brief, arguing that her court did not have jurisdiction to decide the fate of the contracts. “The Court continues to harbor some doubts—although styled as a claim against the State of California, GEO’s fourth cause of action, at heart, seeks a “declaration of contract rights against the government,” over which the Court would lack jurisdiction.”

Despite her noted reservation, Sammartino took up the issue and denied GEO’s request to find the additional five-year options in the contracts as valid under AB 32. “It appears unlikely that GEO will succeed in arguing that the options are not such extensions,” she wrote. 

In her final decision, Sammartino did exempt the application of AB 32 to facilities operated by the U.S. Marshals Service, finding that the law would serve as an obstacle to the federal government in their capacity to contract with private operators to detain prisoners in federal custody. Sammartino pointed to explicit statutory language authorizing the U.S. Marshals to pursue such contracts as a basis for her ruling, noting that no equivalent Congressional authority exists concerning ICE’s power to detain individuals in civil immigration detention. 

Advocates and organizers celebrated the legal victory as a major win for those who have fought to pass AB 32 and worked to close detention facilities in the state. Jackie Gonzalez, Policy Director for Immigrant Defense Advocates, told the Desert Sun, “This bill is part of a broader strategy to end all forms of unnecessary detention. We feel vindicated by the court upholding California’s authority to protect the health and welfare of detained individuals, who for far too long have been subjected to horrid abuses by these corporations.”

The Future of Detention in California and Beyond

The ruling is the latest chapter in an ongoing battle between advocates and private prison corporations in California over what a state can and cannot do with respect to the regulation of private detention facilities. Over the years, California has passed notable pieces of legislation to curb immigrant detention and protect those detained, including SB 29, which prevents local states and counties from contracting with ICE, and AB 103, which allows the Attorney General to inspect detention facilities. Each of these bills has faced legal challenges as part of a tug-of-war over the detention of immigrants. 

AB 32 preceded a push by ICE and private prison corporations to expand private bed space in the state after multiple California counties decided to end their contracts with ICE to house immigrants in local jails. Advocates have long argued that closing detention facilities and eliminating bed space could serve as a deterrent to ICE enforcement and detention. 

After AB 32 was signed into law, many lauded it as “a model for the nation”, while ICE and GEO moved quickly to undercut its viability, lest other states follow suit. However, with this month's ruling, GEO and ICE received a double blow, not only losing in their bid to strike down AB 32 but facing the prospect that the fifteen-year contracts that they tried so hard to secure may now face serious legal jeopardy. 

The ruling by Judge Sammartino will almost certainly be appealed, and while the main focus will be the constitutionality of AB 32, the validity of the contracts in question is no small matter. Under the current ruling, the California Attorney General may choose to enforce AB 32 against private facilities after the completion of the first five-year term of the contracts. This could result in a scenario in which ICE will be forced to shut down five out of the six detention facilities in the state by 2025. 

To further complicate matters, Democratic presidential nominee Joe Biden has gone on record saying his administration will “make clear that the federal government should not use private facilities for any detention, including detention of undocumented immigrants.” As a result, the future of these facilities may be at issue even sooner than five years, particularly given the scrutiny of the contracts received last fall by elected officials at the federal level. The solicitation of the contracts was the subject of a congressional letter signed by U.S. Representative Zoe Lofgren (D-CA), Representative Jerrold Nadler (D-NY), and Senator Kamala D. Harris (D-CA), among others, which challenged the legality and manner of the federal procurement process. 

Putting California aside, the ruling also allows the bill to stand as a model for other states, meaning that even if Trump remains in office, the potential exists for other states to pass legislation designed to close both private prisons and civil detention facilities. The arguments in favor of this type of state action are further bolstered by the COVID-19 pandemic and the failure of ICE and private operators to protect the health and safety of those in detention. 

While advocates, organizers, and detainees continue their fight against private operators and ICE, one thing is for certain: California is not only the front line for the fight to end private detention but stands as a north star for other states to follow.

Forced Hysterectomies Underscore Horrors of Immigrant Detention

For years, advocates, attorneys, and impacted individuals have detailed horrific conditions at ICE detention facilities across the country. These include reports of abuse, negligence, violence, and racism and have raised serious questions about the punitive nature of immigration detention. Last month, a shocking whistleblower report by a nurse working in a private ICE detention center stated that ICE was involved in forced hysterectomies against women at these facilities. The report has renewed national interest and scrutiny not only on ICE detention conditions but also on policies and practices that many view as rooted in racism and genocide.   

This was part of a broader report on inhumane detention conditions inside an ICE facility during the COVID-19 pandemic. Initially covered by The Intercept, the report focused largely on complaints brought forth by Dawn Wooten, a nurse employed at the Irwin County Detention Center in Georgia, run by the private corporation LaSalle Corrections. The report states that the private operator underreported COVID-19 cases, exposed detainees and staff to the virus, and failed to exercise proper care with respect to medical care and conditions inside the facility. 

In addition to the charges of medical neglect, Wooten was also involved in a formal complaint filed with the Department of Homeland Security’s Office of the Inspector General by the advocacy group Project South, which alleges that hysterectomies had been performed on five women detained in the facility without “proper informed consent.” 

“Everybody he sees has a hysterectomy — just about everybody,” Wooten says in the complaint. “I’ve had several inmates tell me that they’ve been to see the doctor, and they’ve had hysterectomies, and they don’t know why they went or why they’re going.”

After the press picked up the report, the AP published a follow-up story with additional women coming forward to document unwanted medical procedures by Dr. Mahendra Amin, the gynecologist alleged to have been involved in the forced hysterectomies against detained women. The report noted that a review of medical records indicated that despite evidence that some of the procedures may have been justifiable, the lack of consent or knowledge by the detained women presented serious legal and ethical issues.

Andrew Free, a civil rights attorney involved in investigating the claims, told the AP, “The indication is there’s a systemic lack of truly informed and legally valid consent to perform procedures that could ultimately result – intentionally or unintentionally – in sterilization.” 

The complaints against ICE and the LaSalle Corporation are now the subject of congressional inquiries. 

Private Negligence and Public Harm 

The claims arising out of the Irwin County Detention Center in Georgia are not only indicative of the dismal conditions immigrants face in ICE detention but also underscore the problematic nature of private detention operators and the facilities they run. According to some estimates, as much as 70% of immigrants nationwide are detained in facilities operated by private for-profit corporations. Private prison stocks rose 100% when Trump was elected, and many advocates have argued that these corporations influence policies that lead to the expansion of detention and prisons. 

These corporations are often incentivized to cut costs and endanger the health and safety of immigrants in order to maximize their profits. The use of these for-profit entities as quasi-extensions of the federal government is at the heart of the failures of accountability and oversight typical of ICE detention. These operators are allowed to function as extensions of the government in detention while avoiding the oversight and transparency requirements associated with governmental agencies.

The COVID-19 pandemic has exposed the longstanding failures related to medical care and safety in for-profit detention facilities. Numerous widespread outbreaks of COVID-19 have taken place in for-profit facilities, with courts and judges noting that private operators have routinely flouted proper protocols to protect health and safety, leaving both detainees and even their own employees at serious risk. 

The lack of transparency and accountability in these facilities has unfortunately created a perfect storm for horrific acts of medical misconduct and negligence, including the reported forced hysterectomies and rampant COVID-19 outbreaks. 

Genocide

The reports of forced sterilization against immigrant women not only elicited shock, condemnation, and immediate calls for an investigation but have drawn comparisons to the systematic sterilization of other vulnerable groups, with some arguing that the practice meets international definitions of genocide. 

https://twitter.com/jewishaction/status/1305641182173814785

The forced medical procedures allegedly perpetrated against immigrant women cannot and should not be viewed as isolated incidents or acts of negligence by an individual doctor or detention operator. Instead, the reports should be situated within the broader framework of immigration policies that criminalize, terrorize, and dehumanize immigrants and people of color in this country.

The Trump administration’s open hostility towards immigrants and reluctance to distance itself from ideas connected with white supremacy now provide a clear nexus between immigration policies and ideas once relegated to the past, such as the forced sterilization of ethnic minorities in order to maintain ideas related to social purity and power. 

Historians have detailed the forced sterilization of more than 20,000 men and women in  California and discussed the parallels between the practice and policies related to immigration and segregation in the United States. Policies that were motivated by and reinforced white supremacy and genocide in this country. 

The reports of forced sterilization, when viewed alongside current immigration policies including the separation of immigrant children from their families, the use of ICE raids to invoke fear, and the systematic attempt to deprive immigrant families of benefits and social support, indicate a concerted effort to destroy immigrant communities and particularly those of color. 

As advocates continue to challenge the various injustices perpetrated by the immigration system in the United States, the reports of forced sterilization are further proof that the current detention system in this country is ripe for abolition. 

California Passes AB 3228 Bill To Protect Immigrants in Detention

On Sunday, September 27th, California Governor Gavin Newsom signed AB 3228, a bill focused on accountability and human rights in private detention facilities, including those used to hold immigrants. The bill, authored by Assemblymember Rob Bonta (D-Oakland), is the first of its kind in the nation and requires all private detention operators to adhere to the standards of care in their facility’s contract for operations. The bill allows any individual harmed due to a breach of those standards to bring suit in state court against a private operator. 

The bill not only covers private prisons but will apply to the five private immigrant detention facilities in the state of California, including the Mesa Verde, Adelanto, and Golden State detention facilities owned and operated by the GEO Group, as well as the Otay Mesa detention facility owned and operated by CoreCivic, and the Imperial detention facility operated by the Management and Training Corporation. With nearly 90% of the state’s detained population held in private facilities, the bill is set to have an impact on what many believe is a broken system of oversight and regulation.  

To discuss the bill further and its impact, ILD sat down with Jackie Gonzalez, Policy Director for Immigrant Defense Advocates (IDA), who sponsored AB 3228. 

ILD was proud to support AB 3228, and we congratulate IDA on the bill, which is now officially part of California's laws. Can you summarize the bill and its impact?

The bill provides a layer of accountability with respect to what takes place in private detention facilities in California, which includes both prisons and civil detention facilities. Study after study has shown that private prison companies place their profits over the health and safety of those in their custody. This bill says that the state of California fully expects private detention facilities to follow the standards of care they agree to in their contracts. It says that they can take that company to state court whenever someone is harmed based on a violation of these standards. We have seen time and again that these companies are solely motivated by profit, so the bill takes them to task and attempts to impose financial consequences for their behavior. 

The bill is significant because it allows the state of California to ensure accountability and basic standards for immigrants being held in private detention facilities. California as a state cannot interfere in the execution of federal immigration laws, and it cannot stop the federal government from detaining individuals. However, there is a clear argument that if a private corporation contracting with the federal government violates the terms of its contract and causes harm, they are no longer acting as an extension of the federal government but simply as a private bad actor, and the state can and should be able to regulate them. In addition to that, the U.S. Ninth Circuit Court of Appeals has found that California has the right to regulate the conditions of confinement for individuals in our state, including those in immigrant detention facilities, so this bill builds upon that legal precedent in order to further protect the health and safety of anyone who is in a private detention facility. 

While it is true that, arguably, individuals could already bring certain claims against these private companies before this bill is passed, the bill clarifies what standard of care should be relevant in any legal proceeding and paves the way for accountability when individuals seek justice. 

Can you tell us about the genesis of this bill and why this was a priority for this year?

With support from ILD and other advocates, this bill was introduced by Assemblymember Rob Bonta, who we worked with last year on AB 32. It is a groundbreaking bill to eventually ban all private detention facilities in California. That bill passed and went into effect January 1, 2020. On the state side, California made its promise and closed nearly all its privately operated facilities, save for one women’s prison. The bill would have also resulted in the closure of multiple immigrant detention facilities this year, including Adelanto and Mesa Verde, but ICE and private prison corporations circumvented federal and state law and signed 15-year contracts days before the bill’s enactment in order to prolong the lifespan of those facilities. The legality of AB 32 and those contracts are currently in litigation, but while those issues were being settled, Assemblymember Bonta announced that he wanted to do a bill focused on the abhorrent conditions in facilities that remained open, as we all know that poor conditions in these facilities are a major and ongoing issue. We worked with him early in the year to try to think about how we could address the situation and the complete lack of accountability in these facilities. 

For example, the Office of the Inspector General of the Department of Homeland Security has found that ICE itself, despite having a set of national standards of care that govern how individuals should be treated in detention, does nothing when these standards are violated. So, we tried to think about how we could tackle that issue in a way that would protect the rights of individuals in custody and create real consequences for these private corporations and their behavior.

This was before the COVID pandemic really took off, but once it did, the need for the bill and the egregiousness of the conditions in detention became more and more of a pressing issue – particularly as the largest outbreak of COVID-19 in any private immigrant detention facility, as well as the first COVID-19 related death in ICE custody, both happened at the Otay Mesa detention facility here in California. From there, we had an increased sense of urgency to make sure that California passed this bill this year, as people’s lives were literally on the line. 

It seems like California continues to be on the front lines of fighting the Trump administration's inhumane policies on immigration. What is your take on that? 

As a project that does state-level policy related to immigration detention, I am thankful that we are in a state that has a tradition of not only dissent but also lawmakers and elected officials who are motivated to push the envelope on what is possible. There are a lot of exciting policies that California has led the way on in the fight to protect the lives and dignity of immigrants, including SB 54, SB 29, AB 103, AB 32, and now AB 3228. As a state and as advocates, we are facing unprecedented times and challenges and must be willing to dream big and fight for our communities. 

COVID-19 has fundamentally changed all of our lives; how has it affected the lives of immigrants in detention? 

Immigration detention conditions and the lack of humanity within the detention system have always been horrifying. With COVID-19, it is worse than ever. As a detained individual, you are held in a facility, away from your family, by a corporation that gets paid for every day you are in there and makes money off of your labor, all while a pandemic begins to unfold. It is a nightmare scenario. I can’t imagine what it feels like to wait for the virus to enter the facility, knowing that there is no meaningful way to socially distance or to protect yourself. People are understandably terrified and begin to get really desperate. It is heartbreaking because the reality is that those people who are waiting for their day in immigration court do not need to be detained. There is no reason for them to be in detention, period. 

What we saw here in California – and, in fact, across the country – is that retaliation and abuse have gone way up in these facilities simply for protesting the horrid conditions of confinement. We had a particularly egregious case in Otay Mesa where CoreCivic reportedly tried to get detainees to sign legal waivers before giving them proper protective gear, and after they protested, they were pepper sprayed by guards.

Another piece related to AB 3228 is that ICE has released a set of mandatory requirements that all detention facilities should abide by to protect against COVID-19 infection, including very specific requirements related to working with local public health authorities. Unfortunately, based on preliminary research, we have seen that this is simply not happening. These corporations are not making any real attempt to comply with these requirements. Many people don’t realize that a massive COVID-19 outbreak at these facilities affects not only staff and individuals inside but can actually result in local hospitals being overwhelmed, which can threaten the surrounding community's public health. So, there is a really strong argument that if we are going to protect public health effectively during this pandemic, it is incumbent on the state to tackle COVID-19 in all of these facilities.

As attorneys who have done detention work for many years, ILD attorneys have seen and heard horrific stories about immigrant detention from our clients over the years. However, the recent news about forced sterilizations is particularly terrifying and heartbreaking. Does this bill help stop similar types of abuses? 

The reports I have seen to date about that tragic situation have been limited to Georgia, but they did take place in a private detention facility. If a similar situation were to take place here in California, it would be covered by this bill as a clear violation of detention standards. We hope AB 3228 can be a model for other states to follow in order to ensure accountability by these private operators. 

There is so much abuse going on, and such a clear failure in terms of oversight that states should be motivated to pass this kind of legislation. 

Your organization refers to itself as an abolitionist. What does that mean in the context of recent California bills related to detention?

Well, I think for us, abolition is both an ideology and a strategy, but we can summarize it with respect to our work and this bill by saying that we, along with ILD and other advocates, want to end immigrant detention. Period. The goal for AB 32 and AB 3228 is to end the practice of private detention and challenge people's fundamental assumptions about immigration detention and why it's even necessary.

Many organizations and people are working on abolition as a concept with respect to issues related to mass incarceration, and we hope to follow their example and work.

Some may view a bill like AB3228 as an attempt to improve the conditions within detention facilities, make them more tolerable, and thus prolong or make detention more acceptable. Others may think that by focusing on private detention, we are arguing that government-run detention facilities are better or preferable. That is not the case. We believe that AB 3228 will expose the reality that private detention facilities cannot comply with regulations or standardization. We believe it will expose the systematic failures of that industry as a whole and eventually lead to its demise in California. While we don’t believe that government-run detention facilities are better, the reality is that the profit motive that exists is driving mass incarceration in this country. It should be targeted and challenged as part of the broader movement going on in this country towards the end of detention for all. 

Legal Decisions Place TPS Status in Jeopardy for Many

On September 14, 2020, the Ninth Circuit Court of Appeals issued a decision in Ramos v. Wolf that allowed the termination of TPS (Temporary Protected Status) to move forward for El Salvador, Nicaragua, and Sudan and paved the way for the termination of TPS for individuals from Honduras and Nepal.  The decision reversed a lower court decision that had previously blocked the Trump Administration from ending TPS from those countries in 2017 and 2018.  While the Ninth Circuit also upheld the termination of TPS for Haitians, a separate injunction currently preventing the termination of TPS for Haitians remains in place. 

Last week’s court decision has jeopardized hundreds of thousands of TPS recipients.  TPS was established in 1990 by Congress under the Immigration Act of 1990, allowing the Secretary of DHS to consult with various government agencies in order to designate specific countries for TPS.  Temporary Protected Status is a form of temporary relief and work authorization provided to immigrants from certain countries experiencing a national crisis, including war or armed conflict, environmental disasters, or other emergency circumstances that make a safe return difficult or impossible.  Individuals receiving TPS cannot be deported from the United States and are eligible for a work permit.  

The primary countries affected by the Ninth Circuit ruling include El Salvador, Nicaragua, and Sudan, with an estimated 300,000 individuals impacted, many of whom have lived in the United States for decades. The decision may also impact the status of some 65,000 TPS holders from Honduras and Nepal who were involved in a companion lawsuit.  Without TPS and its protection against deportation, these individuals could face removal unless they obtain legal status through other means. 

Under the Trump administration, advocates have grown increasingly concerned that TPS-related policy is no longer based on humanitarian concerns and have criticized the administration for failing to provide a legal pathway to obtain status for individuals who have resided in the country for decades.  Advocates instead view the termination of TPS as motivated by xenophobic and anti-immigrant sentiments within the administration. 

Ahilan Arulanantham, senior counsel of the American Civil Liberties Union Foundation of Southern California, who represents TPS recipients in the lawsuit, issued a statement after the decision: “The president’s vile statements about TPS holders made perfectly clear that his administration acted out of racial animus.  The Constitution does not permit policy to be driven by racism.  We will seek further review of the court’s decision.”

However, even if last week’s ruling is upheld, it does not mean an immediate termination of TPS status for individuals from those affected countries. The U.S. Department of Homeland Security had previously stated that any termination of status for TPS recipients from Honduras, Nepal, Nicaragua, and Sudan would take effect no earlier than 120 days from the issuance of any appellate mandate to the district court and no earlier than 365 days for TPS recipients from El Salvador. 

This means that TPS recipients from Honduras, Nepal, Nicaragua, and Sudan will continue to have TPS “until at least March 5, 2021, and those from El Salvador until at least November 5, 2021.” 

Since both those dates are after the 2020 Presidential election, advocates are hopeful that if we have a change in administration, there is a possibility for a legislative or administrative solution that does not result in hundreds of thousands losing TPS. 

TPS Recipients Returning from Authorized Travel Abroad Face Challenge 

In addition to the ruling by the Ninth Circuit, attorneys and advocates have expressed concern over a recent decision by the U.S. Citizenship and Immigration Services (USCIS) to designate Matter of Z‑R‑Z‑C, a decision by the Administrative Appeals Office (AAO) focused on TPS, as an adopted decision. The result of this would mean that USCIS would rely on this ruling in making agency-wide determinations on individual cases.

The decision holds that those who travel abroad with TPS (advance parole) and return to the United States using a DHS-issued travel document will not meet the requirement of being “inspected and admitted or paroled.”  This means they will not have a lawful entry under the law that they can use to apply for lawful permanent residency from within the United States.  This decision will only apply prospectively to TPS recipients who depart and return to the U.S. after August 20, 2020.

The decision presents a serious hurdle for individuals with TPS who may have been eligible to adjust their status in the United States once they returned from authorized travel and were designated as having been “inspected or admitted or paroled.” It is yet another cruel way in which the Trump administration has eliminated one of the few means of obtaining legal status for those with TPS in the United States.

To understand how this decision may impact you or your loved ones, please seek an individual consultation with a qualified immigration attorney.