Immigrant Detentions Continue to Rise

Immigration crackdown on families and asylum-seekers continues

As border apprehensions approached one million people in FY 2019—the most in 12 years—U.S. Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) raids in the interior continued, and the harsh conditions inside detention facilities drew new attention as children died of treatable diseases and allegations of abuse escalated.U.S. Department of Homeland Security (DHS), Immigration and Customs Enforcement (ICE), U.S. Immigration and Customs Enforcement Fiscal Year 2019 Enforcement and Removal Operations Report (Washington, DC: ICE, 2019), 4-5, https://perma.cc/F4Y3-GWAV; and Nick Miroff, “Nearly 1 Million Migrants Arrested Along Mexico Border in Fiscal 2019, Most Since 2007,” Washington Post, October 8, 2019, https://www.washingtonpost.com/immigration/nearly-1-million-migrants-arrested-along-mexico-border-in-fiscal-2019-most-since-2007/2019/10/08/749413e4-e9d4-11e9-9306-47cb0324fd44_story.html.But 2019 also saw an administration on the defensive, with an immigration court backlog slowing decisions on asylum and other cases even as the President tweeted about apprehending and deporting “millions.”Donald J. Trump, @RealDonaldTrump, Twitter (June 17, 2019, 6:20pm), https://perma.cc/N64D-VF6W; and Transactional Records Access Clearinghouse (TRAC) Immigration, “Immigration Court Backlog Tool,” database (Syracuse, NY: Transactional Records Access Clearinghouse), https://trac.syr.edu/phptools/immigration/court_backlog/.Yet despite a government shutdown that forced a compromise on the border wall and losses in court, the White House continued to push hardline immigration policies.

Immigrant children continue to be separated from their families

During 2018, the administration initiated a "zero tolerance" policy, directing federal agents to detain everyone not entering the country at a port of entry and refer all entry-related offenses for criminal prosecution.The White House, “Presidential Memorandum for the Secretary of State, the Secretary of Defense, the Attorney General, the Secretary of Health and Human Services, and the Secretary of Homeland Security re: Ending ‘Catch and Release’ at the Border of the United States and Directing Other Enhancements to Immigration Enforcement” (Washington, DC: The White House, April 6, 2018), https://perma.cc/7HX9-PCMN; and U.S. Department of Justice (DOJ), Office of Attorney General (OAG), “Memorandum from Attorney General Jeff Sessions to Federal Prosecutors along the Southwest Border re: Zero-Tolerance for Offenses Under 8 U.S.C. § 1325(a),” April 6, 2018, https://perma.cc/G5Q8-GP9E.As a result, at least 3,000 children were forcibly separated from their parents at the border in May and June of that year, causing widespread public outcry.U.S. Department of Health and Human Services (HHS), Office of Inspector General (OIG), Separated Children Placed in Office of Refugee Resettlement Care (Washington, DC: HHS OIG, 2019), https://perma.cc/NE2H-GHK6. For dates of the zero tolerance policy, see The White House, “Presidential Memorandum re: Ending ‘Catch and Release’”, 2018, https://perma.cc/GD2U-F6RG; OAG, “Memorandum from Attorney General Jeff Sessions to Federal Prosecutors along the Southwest Border re: ‘Zero-Tolerance for Offenses Under 8 U.S.C. § 1325(a),’” April 6, 2018, https://perma.cc/4BT8-SKAV; and Executive Office of the President, Executive Order No. 13841, “Affording Congress an Opportunity to Address Family Separation,” 83 Fed. Reg. 29435, June 25, 2018, https://perma.cc/JY3G-3MW8.When the administration announced the end of its family separation policy in June of 2018, it seemed that the story was done: children, many of whom were too young to speak, were no longer going to be taken from their parents.For the end of the policy, see Executive Order No. 13841, 2018.

But between June 2018 and June 2019—one year after the announced end of the policy—911 more children, more than half of them younger than 10 years old, were taken from their accompanying adults and detained in shelters or foster care.Miriam Jordan, “No More Family Separations, Except These 900,” New York Times, July 30, 2019, https://www.nytimes.com/2019/07/30/us/migrant-family-separations.html.By December, that number had risen to more than 1,100.Camilo Montoya-Galvez, “The U.S. Continues to Separate Migrant Families. For One Father, A Miscommunication Proved Costly,” CBS, December 16, 2019, https://perma.cc/Q8L3-SUVV/.

Of the children taken from their families under the “zero tolerance” policy, as of September 2019, about 2,200 had been reunited with a parent and around 600 more released “under appropriate circumstances” (including having turned 18 while in custody), while 27 still had nowhere to go.Jasmine Aguilera, “Here's What to Know About the Status of Family Separation at the U.S. Border, Which Isn't Nearly Over,” Time, September 21, 2019, https://perma.cc/X8X3-C7HQ.But in November, a U.S. Department of Homeland Security (DHS) Office of Inspector General’s report concluded that because CBP and DHS had failed to implement adequate procedures to identify and track immigrant families through processing, they couldn’t confirm that all family separations had been identified—and therefore couldn’t confirm the number of families that had been reunified.DHS OIG, DHS Lacked Technology Needed to Successfully Account for Separated Migrant Families (Washington, DC: DHS OIG, 2019), https://perma.cc/V54F-MPX2.The report also said that even prior to zero tolerance, the U.S. Border Patrol was prepared to separate upward of 26,000 children from their families between May and September 2018, even though it knew it did not have the technology to track them or reunite them with their parents.Ibid., 17.Instead, the agency “adopted various ad hoc methods” of recording separations, which resulted in frequent errors.Ibid., 7-8.In fact, some estimates place the total number of children separated from their families under the current administration at more than 5,000.Associated Press (AP), “More Than 5,400 Children Split at Border, According to New Count,” NBC, October 25, 2019, https://perma.cc/2F6D-3796.

The Flores agreement, signed in 1997 as part of the settlement of a class-action suit over migrant children’s rights, governs the treatment of children who arrive in the United States without an adult or who have been separated from their accompanying adult or family member, requiring them to be held in safe, homelike environments with access to care.Caitlin Dickerson, “Trump Administration Moves to Sidestep Restrictions on Detaining Migrant Children,” New York Times, September 6, 2018, https://www.nytimes.com/2018/09/06/us/trump-flores-settlement-regulations.html; and Flores v. Reno, No. CV-85-4544-RJK(Px) (C.D. Cal., November 13, 2014) (settlement agreement), https://perma.cc/QPR2-T3T6.Since 2016—but especially since 2018’s family separation policy—the administration has sought ways around the agreement.Miriam Jordan, “Judge Blocks Trump Administration Plan to Detain Migrant Children,” New York Times, September 27, 2019, https://www.nytimes.com/2019/09/27/us/migrant-children-flores-court.html.The Flores agreement was designed to expire in five years, but automatically renews unless the government writes and publishes regulations superseding the rules in it.“The History of the Flores Settlement and Its Effects on Immigration,” National Public Radio (NPR), June 22, 2018, https://perma.cc/S2UX-8MVT.In 2019, the administration finally turned its hand to writing the proposed regulations, which require judicial approval.Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children, 84 Fed. Reg. 44392, (August 23, 2019) (to be codified at 8 CFR 212, 8 CFR 236, and 45 CFR 410), https://perma.cc/9SDK-VN43. See also DHS, “DHS and HHS Announce New Rule to Implement the Flores Settlement Agreement; Final Rule Published to Fulfill Obligations under Flores Settlement Agreement,” press release (Washington, DC: DHS, August 21, 2019), https://perma.cc/4GUN-N8K5.The regulations as written would replace settlement provisions requiring minors to be quickly released to a family member or placed in a safe, homelike environment with rules permitting them to be detained indefinitely so long as they are with family members.Geneva Sands and Sam Fossum, “Trump Administration to Allow Longer Detention of Migrant Families,” CNN, August 22, 2019, https://perma.cc/866V-ZNRL.In September, Judge Dolly Gee of the Central District of California rejected them and said the original Flores agreement would stand.Jordan, “Judge Blocks Trump Administration,” 2019.The Trump administration has appealed.Caitlin Dickerson, “Despite Warnings, Trump Moves to Expand Migrant Family Detention,” New York Times, December 9, 2019, https://www.nytimes.com/2019/12/09/us/migrant-family-detention-border.html.

Immigrants continue to die in detention as reports persist about harsh conditions and abuse

More than half a million people apprehended by ICE or CBP were booked into ICE custody in FY 2019, an almost 30 percent increase from FY 2018.ICE, U.S. Immigration and Customs Enforcement Fiscal Year 2019 Enforcement and Removal Operations Report (Washington, DC: ICE, 2019), 4-5, https://perma.cc/D5DE-JB6U.And of those booked, more are being detained for longer: the average daily population in immigration detention soared under the Trump administration from 34,000 in 2016 to approximately 55,000 people in custody in August—a more than 50 percent increase—before it declined slightly in the last months of the year.Ibid.; TRAC, “Growth in ICE Detention Fueled by Immigrants with No Criminal Conviction,” TRAC, November 26, 2019, https://perma.cc/M8D4-3W5L; “César Cuauhtémoc García Hernández, “Abolish Immigration Prisons,” New York Times, December 2, 2019, https://www.nytimes.com/2019/12/02/opinion/immigration-detention-prison.html; and The Marshall Project in partnership with The Guardian, “Detained,” September 24, 2019, https://perma.cc/N49W-LPF4.

Immigration custody is civil custody and is not supposed to be punitive, a fact that the DHS Office of Inspector General reiterated in a June report finding “egregious violations of detention standards” in ICE facilities.DHS OIG, Concerns about ICE Detainee Treatment and Care at Four Detention Facilities (Washington, DC: DHS OIG, 2019), “Highlights,” https://perma.cc/VG4E-8M7P.More than two dozen people have died in ICE custody since 2016.Hannah Rappleye and Lisa Riordan Seville, “24 Immigrants Have Died in ICE Custody During the Trump Administration,” NBC, June 9, 2019, https://perma.cc/6LPW-76NZ. ICE reports that five more people in custody have died since the NBC report was released. ICE, “Death Detainee Report,” last updated November 22, 2019, https://perma.cc/CS9S-7BCW.(This count doesn’t include immigrants who have died in the custody of other federal agencies involved in immigrant detention, such as CBP.In 2019, U.S. Customs and Border Protection (CBP) was responsible for 17 deaths, according to the Southern Border Communities Coalition (SBCC), a group of 60 organizations tracking CBP abuses and violations. SBCC, “Deaths by Border Patrol Since 2010,” updated January 8, 2020, https://perma.cc/BU74-BK8N.)

ICE detains immigrants it apprehends in a network of around 200 facilities nationwide, although it is difficult to say exactly how many because the list changes frequently and some facilities may temporarily provide beds.ICE, “Facility Inspections: Related Information,” https://perma.cc/Z5LM-LKRS.What is clear, however, is that an increasing number of these facilities have been found to be out of compliance with the standards for civil detention, with unsafe food, inappropriate use of restraints and disciplinary segregation, and lack of access to recreation or even showers.DHS OIG, Concerns about ICE Detainee Treatment, 2019. See also ICE, “Facility Inspections: Related Information.”A report from the Southern Poverty Law Center and Americans for Immigrant Justice released in December detailed substandard conditions in four ICE facilities in South Florida—including inadequate medical and mental health care, a lack of accommodations for and discrimination against people with disabilities, and overuse of solitary confinement.Southern Poverty Law Center (SPLC) and Americans for Immigrant Justice, Prison by Any Other Name: A Report on South Florida Detention Facilities (Montgomery, AL: SPLC, 2019), https://perma.cc/2NCU-Y2PA.There were also complaints in 2019 that ICE force-fed a group of hunger strikers seeking to draw attention to unsanitary and abusive conditions; some were placed in solitary confinement as punishment for their protest.Matt Stevens, “ICE Force-Feeds Detainees Who Are on Hunger Strike,” New York Times, January 31, 2019, https://www.nytimes.com/2019/01/31/us/ice-force-feeding-detainees.html.

Detention is particularly harmful for those with mental illnesses.See for example Martha von Werthern, Katy Robjant, Z. Chui et al., “The Impact of Immigration Detention on Mental Health: A Systematic Review,” BMC Psychiatry 18 (2018), https://perma.cc/WV5F-QFGP.Some estimates place the number of detainees with mental illnesses at between 6 percent and 11 percent—while others say it is as high as 30 percent.Renuka Rayasam, “Migrant Mental Health Crisis Spirals in ICE Detention Facilities,” Politico, July 21, 2019, https://perma.cc/KA2M-VXZG.Yet Politico reported in July that only 21 of the more than 200 facilities offered in-person mental health services—however minimal.Rayasam, “Migrant Mental Health Crisis,” 2019.And advocates say that people with mental illnesses are being handled without sensitivity to their specialized needs.Ibid.In June, the American Immigration Council and American Immigration Lawyers Association filed a complaint on behalf of people detained in Aurora, Colorado, that included concerns about people at risk of suicide being placed in solitary confinement and people with mental illnesses being denied access to therapy and medication.Letter from American Immigration Council and American Immigration Lawyers Association to DHS Re: SUPPLEMENT—Failure to Provide Adequate Medical and Mental Health Care to Individuals Detained in the Denver Contract Detention Facility, June 11, 2019, https://perma.cc/ZB95-Q9SD.

Conditions were also troubling for LGBTQ detainees. In September, 14 human rights groups, including the Southern Poverty Law Center, the National Immigrant Justice Center, and the National Center for Transgender Equality, called for the release of all LGBTQ detainees and anyone with HIV in the custody of ICE, as well as an investigation into the treatment of LGBTQ people detained at facilities across the country, citing improper medical and mental health treatment.Robert Moore, “Human Rights Groups Allege ICE, Private Detention Companies, Provide Poor Care to LGBTQ Migrants and Those with HIV,” Washington Post, September 25, 2019, https://www.washingtonpost.com/immigration/human-rights-groups-allege-ice-private-detention-companies-provide-poor-care-to-lgbtq-migrants-and-those-with-hiv/2019/09/25/a4f3747c-dfc9-11e9-be96-6adb81821e90_story.html.In June, Johana Medina León, an HIV-positive transgender woman from El Salvador who had been detained at the Otero County Processing Center—already the subject of several complaints about poor treatment of transgender women in its care—became the second transgender woman to die in ICE custody in New Mexico within the space of a year.Ibid.; and Robert Moore, “Transgender Woman Migrant Who Had Been in ICE Custody Dies After Falling Ill,” Washington Post, June 2, 2019, https://www.washingtonpost.com/immigration/transgender-woman-migrant-who-had-been-in-ice-custody-dies-after-falling-ill/2019/06/02/d194528a-85a6-11e9-98c1-e945ae5db8fb_story.html.(ICE claims it granted her parole when it sent her to the hospital, where she died.)Moore, “Trans Woman Migrant Dies,” 2019.

But even as concerning as these conditions in long-term ICE facilities were, it was CBP’s detention centers meant to hold people only for shorter durations that dominated the news in 2019, as reports of filthy conditions, outbreaks of illness, lack of food, and children being held without access to basic hygiene items like soap and toothbrushes came to light.Caitlin Dickerson, “‘There Is a Stench’: Soiled Clothes and No Baths for Migrant Children at a Texas Center,” New York Times, June 21, 2019, https://www.nytimes.com/2019/06/21/us/migrant-children-border-soap.html.A troubling report released in February by the U.S. Department of Health and Human Services listed more than 4,500 complaints about the sexual abuse of children in youth detention by CBP from October 2014 to July 2018—859 of which were recorded between March and July 2018, roughly during the “zero tolerance” family separation policy.Matthew Haag, “Thousands of Immigrant Children Said They Were Sexually Abused in U.S. Detention Centers, Report Says,” New York Times, February 27, 2019, https://www.nytimes.com/2019/02/27/us/immigrant-children-sexual-abuse.html; and Caitlin Owens, Stef W. Kight, and Harry Stevens, “Thousands of Migrant Youth Allegedly Suffered Sexual Abuse in U.S. Custody,” Axios, February 26, 2019, https://perma.cc/6UR7-BPSF.A December investigation by USA Today detailed lack of access to medicine and health care—even for emergencies like broken bones and recent surgeries.Monsy Alvarado, Ashley Balcerzak, Stacey Barchenger et al., “Deaths in Custody. Sexual Violence. Hunger Strikes. What We Uncovered Inside ICE Facilities Across the US,” USA Today, December 22, 2019, https://perma.cc/5JNU-LZX9.

Basic preventive care was also lacking. ICE and the Office of Refugee Resettlement are supposed to administer flu vaccines to people held for extended periods of time in facilities they operate.Robert Moore, “CDC Recommended That Migrants Receive Flu Vaccine, But CBP Rejected the Idea,” Washington Post, November 25, 2019, https://www.washingtonpost.com/immigration/cdc-recommended-that-migrants-receive-flu-vaccine-but-cbp-rejected-the-idea/2019/11/25/8aba198e-0fb8-11ea-b0fc-62cc38411ebb_story.html.But CBP has claimed that it is exempt from this requirement since it holds people only in short-term custody until they can be deported or transferred to longer term holding facilities.Katie Shepherd, “Doctors Protested Border Patrol to Offer Flu Vaccines to Detained Migrants. They Left in Handcuffs and Without Answers,” Washington Post, December 12, 2019, https://www.washingtonpost.com/nation/2019/12/12/doctors-protest-border-patrol-allow-flu-vaccines-detained-migrants/.(For example, the agency is only permitted to hold children for 72 hours, although it has routinely violated this mandate in 2019.Ibid.) In 2019, at least three children died from the flu while under CBP care.Ibid.; Robert Moore and Susan Schmidt, special to ProPublica, and Maryam Jameel, “Inside the Cell Where a Sick 16-Year-Old Boy Died in Border Patrol Care,” ProPublica, December 5, 2019, https://perma.cc/4PRT-AFKJ; and Robert Moore, “Doctors Urge Probe of Child Migrant Deaths: ‘Poor Conditions’ at Border Increase Risk of Spreading Flu,” Washington Post, August 1, 2019, https://www.washingtonpost.com/immigration/doctors-urge-probe-of-child-migrant-deaths-poor-conditions-at-border-increase-risk-of-spreading-flu/2019/08/01/0bf86b06-b445-11e9-8f6c-7828e68cb15f_story.html.In December, volunteer doctors who approached CBP facilities offering to administer free flu vaccinations were turned away—or even arrested.Shepherd, “Doctors Offer Flu Vaccines,” 2019.

ICE accelerates interior raids as border apprehensions reach nearly one million

ICE, the U.S. Border Patrol, more than 5,000 members of the U.S. military, and even national park rangers patrolled the country’s southern border in 2019, apprehending nearly a million people, the largest number since 2007.ICE, “ERO FY 2019 Achievements,” https://perma.cc/43EP-W7G5, Karen Chávez and Trevor Hughes, “Trump: Park Rangers Will Patrol Mexican Border, Arrest Migrants,” USA Today, November 23, 2019, https://perma.cc/HWL2-A42W; Meghann Myers, “How the Border Wall Work-Stop Could Affect Troop Deployments,” Military Times, December 27, 2019, https://perma.cc/96RN-N834; and Nick Miroff, “1 Million Migrants,” 2019.On the other side of the border, Mexico—motivated by threats from the White House—added military patrols to stop groups of asylum-seekers.Miroff, “1 Million Migrants,” 2019.

Meanwhile, interior raids continued, with mixed results. In July, the White House announced that more than 2,100 people would be targeted for raids and deportation as part of “Operation Border Resolve,” an ICE action targeting undocumented families throughout the country.Maria Sacchetti, “Trump Vowed Millions of Immigration Arrests in Dramatic Raids. ICE Caught 18 Family Members,” Washington Post, July 23, 2019, https://www.washingtonpost.com/immigration/trump-vowed-millions-of-immigration-arrests-in-dramatic-raids-ice-caught-18-family-members/2019/07/23/6672167a-ad49-11e9-bc5c-e73b603e7f38_story.html.But of those identified and targeted for removal, just 18 were arrested.Miriam Jordan, “More Than 2,000 Migrants Were Targeted in Raids. 35 Were Arrested,” New York Times, July 23, 2019, https://www.nytimes.com/2019/07/23/us/ice-raids-apprehensions.html.Some attributed the lower number to the advance notice that allowed some advocates to launch an education campaign advising undocumented immigrants about their rights and others to shield targeted families.Jordan, “2,000 Migrants Were Targeted,” 2019.

DHS raids proved unpopular with many jurisdictions, and the year also saw a substantial backlash against ICE. New York in April and New Jersey in May banned ICE agents from arresting undocumented immigrants in state courthouses without a warrant—and New Jersey also limited its collection of immigration information, a move designed to stymie federal agents who frequently request immigration data from local officials.Richard Gonzales, “No ICE Arrests In Courthouses Without Judicial Warrants, N.Y. Court Directive Says,” NPR, April 17, 2019, https://perma.cc/T9AS-CK9E; and Monsy Alvarado, “New Rules Limit ICE Activity in New Jersey State Courthouses,” North Jersey Record, May 23, 2019, https://perma.cc/BZA7-Q539.In December, the Boston City Council expanded its sanctuary city policy with a similar rule prohibiting police officers from sharing information with ICE on civil enforcement matters.Erin Tiernan, “Boston City Council Expands Sanctuary City Policy,” Boston Herald, December 11, 2019, https://www.bostonherald.com/2019/12/11/boston-city-council-expands-sanctuary-city-policy/.The move came after reports that police had been working with ICE to apprehend undocumented immigrants despite city policies blocking some avenues of cooperation.Ibid.

As local involvement in ICE enforcement decreased, the agency shifted tactics. Using data analysis and careful surveillance, it began infiltrating regions dependent on agriculture and fishing to quietly apprehend and remove longtime community residents.McKenzie Funk, “How ICE Picks Its Targets in the Surveillance Age,” New York Times, October 3, 2019, https://www.nytimes.com/2019/10/02/magazine/ice-surveillance-deportation.html.And advocates say that the use of ruses such as impersonating police officers and potential employers has increased.Nausicaa Renner, “As Immigrants Become More Aware of Their Rights, ICE Steps Up Ruses and Surveillance,” The Intercept, July 25, 2019, https://perma.cc/B62L-WBD9.

More jurisdictions are seeking to limit their involvement in ICE detention as well. In October, Nashville, Tennessee’s sheriff said he would end the city’s contract to house ICE detainees in its jails as tensions in the city escalated between ICE and locals.Jonathan Mattise, “Nashville to End Contract to House ICE Immigrant Detainees,” AP, October 29, 2019, https://perma.cc/925Y-65Z8.Tennessee’s anti-sanctuary city law went into effect in 2019, and the city and state have already clashed over it.Tennessee HB 2315 (2018), https://perma.cc/L8G3-VAKY; and Yihyun Jeong, “Nashville Mayor David Briley Calls for Tennessee Lawmakers to Repeal Bill Banning Sanctuary Cities,” Nashville Tennessean, September 3, 2019, https://www.tennessean.com/story/news/2019/09/03/nashville-mayor-wants-tennessee-repeal-anti-sanctuary-bill/2195697001/.In Evanston, Wyoming, a new private prison run by CoreCivic and intended to house people captured by ICE is the subject of heated debates as the city council, local residents, and protestors clash over its construction.Andrew Graham, “Evanston Meets Its Would-Be Economic Savior, CoreCivic,” WyoFile, December 10, 2019, https://perma.cc/7T5Z-F7X5.And in California, which passed a law in October banning privately run immigration detention centers starting in January 2020, ICE solicited year-end bids for at least four detention facilities in what advocates called “a blatant attempt to circumvent the law.”California AB 32 (2019), https://perma.cc/9Z6G-9YMM; and Los Angeles Times, “ICE Is Ignoring California’s Ban on Private Immigrant Detention Centers, Legislators Say,” KTLA, November 9, 2019, https://perma.cc/2VRY-QD7M.

But sanctuary jurisdictions also faced opposition. In July, the Ninth Circuit Court of Appeals held that the government could give preferential treatment to cities that cooperate with ICE in awarding community policing (COPS) grants.City of Los Angeles v. Barr, No. 18-55599 (9th Cir. July 12, 2019), https://perma.cc/22KN-BQGJ; and Gene Johnson, “Appeals Court Gives Trump a Win in Sanctuary City Case,” AP, June 12, 2019, https://perma.cc/MQG6-6AEY.(In October, however, that same court ruled that the administration had exceeded its authority by refusing to award Byrne JAG grants to cities that did not provide immigration agents access to jails and information on incarcerated people.City of Los Angeles v. Barr, No. CV-17-7215-R-JC (9th Cir. October 31, 2019), https://perma.cc/M5XY-ZDUL; and City News Service, “Trump Can’t Withhold Anti-Gang Funding if LA Refuses to Cooperate on Immigration, Court Rules,” Los Angeles Daily News, October 31, 2019, https://www.dailynews.com/2019/10/31/trump-cant-withhold-anti-gang-funding-if-la-refuses-to-cooperate-on-immigration-court-rules/.) In June, Florida joined Tennessee and 10 other states in banning sanctuary cities, threatening local law enforcement with penalties for failing to fully cooperate with federal immigration authorities.Florida SB 168 (2019), https://perma.cc/U3JD-GQ7T; and Catherine E. Shoichet, “Florida Just Banned Sanctuary Cities. At Least 11 Other States Have, Too,” CNN, June 14, 2019, https://perma.cc/A8RQ-MPPG. For a list of sanctuary jurisdiction policies and pending legislation, see National Conference of State Legislatures, “Sanctuary Policy FAQ,” June 20, 2019, https://perma.cc/H7TY-Q3DY.And a Tucson, Arizona, ballot measure that would have restricted police officers’ ability to detain people based on immigration status was overwhelmingly rejected in November.Tucson, AZ, Proposition 205 (2019), https://perma.cc/EP5V-AG9D; and Jacey Fortin and Emily S. Rueb, “Tucson Rejects Sanctuary Status as Places Across U.S. Vote on Their Futures,” New York Times, November 6, 2019, https://www.nytimes.com/2019/11/06/us/arizona-tucson-sanctuary-city.html.

Trump diverts money for border wall, but courts—and Congress—object

The year saw the administration continuing its attempts to secure funding for its border wall.Manny Fernandez and Mitchell Ferman, “Under Construction in Texas: The First New Section of Border Wall,” New York Times, November 8, 2019, https://www.nytimes.com/2019/11/08/us/border-wall-texas.html.At the end of 2018, the U.S. government shut down for what would eventually be 35 days over the president’s demanded $5 billion to fund the wall.Clare Foran, “How the Partial Government Shutdown Is Playing Out and What to Expect as It Continues,” CNN, December 24, 2018, https://perma.cc/8FSZ-REDC; and Linda Qiu, “The Many Ways Trump Has Said Mexico Will Pay for the Wall,” New York Times, January 11, 2019, https://www.nytimes.com/2019/01/11/us/politics/trump-mexico-pay-wall.html.A deal was reached in late January, but the compromise bill did not contain enough funding for construction.Nicholas Fandos, Sheryl Gay Stolberg, and Peter Baker, “Trump Signs Bill Reopening Government for 3 Weeks in Surprise Retreat from Wall,” New York Times, January 25, 2019, https://www.nytimes.com/2019/01/25/us/politics/trump-shutdown-deal.html.In February, Trump declared a national emergency along the southern border, which he said allowed him to redirect taxpayer money from other accounts to build the wall.Damian Paletta, Mike DeBonis, and John Wagner, “Trump Declares National Emergency on Southern Border in Bid to Build Wall,” Washington Post, February 15, 2019, https://www.washingtonpost.com/politics/trumps-border-emergency-the-president-plans-a-10-am-announcement-in-the-rose-garden/2019/02/15/f0310e62-3110-11e9-86ab-5d02109aeb01_story.html.(His plan was to divert $2.5 billion from a Pentagon program for countering drug activities and $3.6 billion from military construction accounts.)Paletta, DeBonis, and Wagner, “Trump Declares National Emergency,” 2019.Despite unusually bipartisan attempts by Congress to pass resolutions cancelling the emergency declaration, the president continues to veto the resolutions, and opponents have been unable to garner enough votes in the Senate to override his vetoes.Michael Tackett, “Trump Issues First Veto After Congress Rejects Border Emergency,” New York Times, March 15, 2019, https://www.nytimes.com/2019/03/15/us/politics/trump-veto-national-emergency.html; and Emily Cochrane, “Trump Again Vetoes Measure to End National Emergency,” New York Times, October 15, 2019, https://www.nytimes.com/2019/10/15/us/politics/trump-veto-national-emergency.html.

In December, a federal judge in the Fifth Circuit issued an injunction preventing the administration from repurposing military construction money; a decision reversed by the Fifth Circuit Court of Appeals a month later.El Paso County v. Trump, No. EP-19-CV-66-DB (W.D. Texas, December 10, 2019), https://perma.cc/U49N-8Q27; and Miriam Jordan, “Judge Issues Nationwide Injunction Blocking Border Wall Funding,” New York Times, December 10, 2019, https://www.nytimes.com/2019/12/10/us/border-wall-texas-judge-injunction.html. For the Court of Appeals decision, see El Paso County v. Trump, No. 19-51144 (5th Cir. January 8, 2020), https://perma.cc/E5LN-MTKX.Federal judges in the Ninth Circuit had prevented the use of Pentagon drug program money via a series of injunctions, but U.S. Supreme Court decisions in July and December allowed the government to use those funds to continue construction while the litigation was proceeding.For the history of the July injunction, see Trump v. Sierra Club, No. 19A60, https://perma.cc/96U4-2UZ2; and Adam Liptak, “Supreme Court Lets Trump Proceed on Border Wall,” New York Times, July 26, 2019, https://www.nytimes.com/2019/07/26/us/politics/supreme-court-border-wall-trump.html. For the December injunction, see Sierra Club v. Trump, No. 19-cv-00892-HSG (N.D. Cal. December 11, 2019), https://perma.cc/U8YQ-MG39; and Trump v. Sierra Club, 140 S. Ct. 1 (2019) (mem.); accord Sierra Club v. Trump, No. 19-17501, slip. op. (9th Cir. Dec. 30, 2019).Private landowners along the border also have filed numerous additional lawsuits to stop or slow construction.Fernandez and Ferman, “Under Construction in Texas,” 2019.

In late October, construction began on the first new section of border wall, about eight miles of fencing in the Rio Grande Valley estimated to cost $167 million.Ibid.Of the 500 miles of border wall promised by the end of 2020, just 100 miles have been erected—mostly replacements for existing sections of border barrier.Priscilla Alvarez, “Trump Administration Reaches 100-Mile Mark For Border Wall,” CNN, January 10, 2020, https://perma.cc/2WZE-682X; Fernandez and Ferman, “Under Construction in Texas,” 2019; and Zolan Kanno-Youngs, “Pentagon Investigator to Examine Border Wall Contract Awarded to G.O.P. Donor,” New York Times, December 12, 2019, https://www.nytimes.com/2019/12/12/us/politics/trump-border-wall-investigation.html.

More jurisdictions are providing critical legal help to people facing deportation

By the end of FY 2019, there was a backlog of more than one million deportation cases pending in immigration court, nearly double the number pending at the end of fiscal year 2016.TRAC Immigration, “Immigration Court Backlog Tool,” database (Syracuse, NY: Transactional Records Access Clearinghouse), https://trac.syr.edu/phptools/immigration/court_backlog/.As immigration arrests and detention have soared, more communities across the country launched legal defense programs in 2019 to assist those facing deportation. Yet unlike in the U.S. criminal justice system, immigrants facing deportation do not have the right to government-provided counsel if they cannot afford a lawyer—even though the U.S. government is always represented by counsel. As a result, most people fighting for their lives in immigration court—including 70 percent of people in detention—must navigate the complexities of immigration law alone.The representation rate in immigration court fluctuates slightly over time. Historically, 81 percent of detained immigrants have lacked representation—between October 2000 and November 2019, 81 percent of all people in detention had never been represented (1,237,252 of 1,526,419 cases). The rate has improved slightly over the past two decades, with approximately 70 percent unrepresented in recent years—between October 2012 and November 2019, 70 percent of all people in detention had never been represented (327,828 of 466,756 cases), with the exact percentage varying slightly from year to year. See TRAC, “Details on Deportation Proceedings in Immigration Court,” database (Syracuse, NY: TRAC), accessed January 13, 2020, https://trac.syr.edu/phptools/immigration/nta/.But research has shown that immigrants who are represented are 3.5 times more likely to be released from detention on bond and up to 10 times more likely to establish a right to remain in the United States.For a summary of this research, see Karen Berberich and Nina Siulc, Why Does Representation Matter? (New York: Vera Institute of Justice, 2018), https://perma.cc/NTM6-F8UN.Although a bill was introduced in the U.S. House of Representatives in July to provide representation for certain high-priority asylum seekers, it seems unlikely to ever leave committee.Equal Justice for Immigrants Act of 2019, H.R. 3775, 116th Cong., https://perma.cc/Z7DL-BUB7.

But the movement for universal representation for immigrants facing deportation is growing. More than 35 communities in 18 states, including 18 communities in the Vera Institute of Justice’s Safety and Fairness for Everyone (SAFE) network, have funded deportation defense programs.Vera Institute of Justice, “SAFE Network Expands to 18 Communities Fighting for Legal Representation for Immigrants Facing Deportation,” press release (New York: Vera Institute of Justice, July 16, 2019), https://perma.cc/MGQ8-7LJU.In 2019, state and local jurisdictions continued to lead the way in allocating funding for immigrant legal services. In October, Oregon launched the first program in its state-funded legal defense effort for people facing deportation, allocating $2 million to the Equity Corps of Oregon.Stephen W. Manning, Leland Baxter-Neal, Lindsay Jonasson et al., Defend Everyone: Providing Universal Representation through the Equity Corps of Oregon (Portland, OR: Equity Corps of Oregon, 2018), https://perma.cc/ZNJ3-Q8HN; and Erika Bolstad, “This State Pays to Help Asylum-Seekers Avoid Deportation,” Pew Charitable Trusts and Stateline, November 14, 2019, https://perma.cc/N35T-Z886.New York State included $10 million in its FY 2020 budget to support the expansion of universal representation in the state.Office of Governor Andrew Cuomo, “Governor Cuomo and Legislative Leaders Announces 2020 Enacted Budget Includes $10 Million to Support Expansion of the Liberty Defense Project,” press release (Albany, NY: Office of Governor Andrew Cuomo, April 5, 2019), https://perma.cc/U67X-SUK9.And in May, Fairfax County, Virginia, established a legal representation fund for immigrants, earmarking $200,000 for a comprehensive universal representation pilot program.Angela Woolsey, “Fairfax County Becomes First Virginia Locality to Fund Legal Representation for Immigrants,” Fairfax County Times, May 10, 2019, https://perma.cc/4UX7-7FH2.

But another battle over representation—whether children will be forced to represent themselves—is still being fought during the same year in which the administration deported its youngest-ever separated child, four-month-old Constantin Mutu.The Weekly Episode 3:‘Baby Constantin’ (New York Times, 2019), https://www.nytimes.com/2019/06/14/the-weekly/trump-immigration-border-separation-family.html?action=click&module=RelatedCoverage&pgtype=Article®ion=Footer.The Ninth Circuit Court of Appeals took the rare step of withdrawing a 2018 three-judge decision in C.J.LG. v. Sessions that children are not entitled to counsel in deportation proceedings so that the case could be reheard by all 11 judges in the circuit sitting en banc.C.J.L.G. v. Sessions, 880 F.3d 1122 (9th Cir. 2018), https://perma.cc/WNF3-55UB; C.J.L.G. v. Sessions, No. 16-73801 (9th Cir. September 19, 2018) (order), https://perma.cc/ZX6A-EF2R; and American Civil Liberties Union (ACLU) of Washington, “Federal Appeals Court to Decide Whether Children Have a Right to Appointed Counsel in Deportation Hearings,” press release (Pasadena, CA: ACLU of Washington, September 21, 2018), https://perma.cc/6FXJ-G7YE.In May, the full court ultimately avoided the question, ruling that because the judge in the initial immigration hearing had failed to notify the teenage plaintiff that he might be eligible for Special Immigrant Juvenile status, the question of whether he was entitled to counsel was moot.C.J.L.G. v. Barr (formerly C.J.L.G. v. Sessions), No. 16-73801 (9th Cir. May 2, 2019), https://perma.cc/TNQ6-TMVD.