I am the American heartbreak –
The Rock on which Freedom
Stumped its toe –
The great mistake
That Jamestown made
Long ago

~ Langston Hughes

Until the pictures depicting Border Patrol’s abusive treatment of Haitian migrants in Del Rio hit the news in September last year, the plight of Black migrants has been largely invisible in the public consciousness, and it has rarely factored into the public discourse on immigration. Yet, immigration is a Black issue.

Black immigrants make up one of the fastest growing groups in the United States, increasing from nearly 3.7 million people in 2014 to 4.6 million in 2019. An estimated 9% of the 42 million non-citizens in the U.S. in 2014 were Black. Jamaicans and Haitians made up more than one-third of all Black immigrants. Nigerans and Ethiopians are the two largest groups of Black immigrants from Africa. More than half of Black immigrants live in just four states: New York (23%), Florida (18%), Texas (6%) and Maryland (6%), with New York City being home to nearly 40% of foreign-born Black Jamaicans, Miami has the largest Haitian population, Washington D.C is home to the largest Ethiopian immigrant community and Somalian immigrants concentrate in metropolitan areas of Wisconsin and Minnesota. Beside the Caribbean and Africa, Black migrants also come from South America, Central America, Europe, and Asia. Black immigrants from Jamaica, Haiti and the Dominican Republic began immigrating to the U.S. in large numbers in the 1960s; with the majority (63%) of Black African migrants arriving in the U.S. in 2000 or later. More than one quarter (27.3%) of Black immigrants from Africa and the Caribbean obtained Lawful Permanent Status through refugee and asylee adjustment, 10.2% based on the diversity visa program. One in six Black immigrants is undocumented.

The trail taken by Haitians who traverse South America, brave the Darin Gap to reach Panama, travel the entire length of Mexico to reach the Rio Grande and trudge across the river to reach the southern border of the U.S. is the same trail taken by many Black migrants from Africa and elsewhere. For those who survive The Black Migrant Trail of Tragedies, many have been expelled under Title 42 using public health as an excuse, others are stuck in immigration detention and put through fast-tracked removal proceedings without the benefit or opportunity to obtain legal representation. At the peak of the Haitian humanitarian crisis last fall, attorneys reported that they could not locate their clients because the bogus identification numbers randomly assigned to these individuals did not exist in the detainee system. And by the time the attorneys heard about or from their clients, they had already been expelled. Since September 19, 2021, the Biden Administration has spent millions of dollars expelling 156 planeloads of Haitians, totaling about 16,700, back to Haiti, a country deemed unsafe for Americans to visit due to kidnapping, crime, civil unrest, and COVID 19 and where U.S. government personnel are discouraged from walking in Port-au-Prince and other neighborhoods. Among the Haitians expelled, many shackled at waist and wrists en route, 26% were women, and 19% were children, including many infants and toddlers. This image is far from a just and humane immigration system.

Bias in policing has resulted in Blacks and African Americans being arrested at a rate higher than their overall percentage of the population. Civil immigration enforcement that prioritizes those with encounters with the criminal system inevitably impacts Black migrants disproportionately. “Driving while Black,” the 287(g) cooperation agreement between federal immigration enforcement agencies and local law enforcement, and expanded use of “immigration holds” create the detention-to-deportation pipeline. Despite their relatively small size among the U.S. noncitizen population, Black immigrants made up 10.6% of all immigrants in removal proceedings between 2003 and 2015. In 2014, for example, Black immigrants made up 4.8% of those detained during removal proceedings, but they represented 17.4% of detained immigrants facing deportation on criminal grounds. Once detained, Black immigrants are given significantly higher bonds than other detained immigrants similarly situated. For those unable to afford immigration bond, many end up serving the longest time in immigration detention among all detained immigrants and are six times more likely to be subject to solitary confinement.[1]

While only 14% of all detained immigrants face deportation on criminal grounds, fully half (50.4%) of Black immigrants detained during removal proceedings are charged with criminal grounds of removability. Black immigrants are more likely to be deported on criminal grounds than on violations of immigration law, such as entry without inspection, overstaying a visa or working without permission. Black immigrants comprised 7.5% of cases concluded in immigration Courts in 2015, more than one-third (35.7%) of these cases were because the individuals were ordered removed. Because deportation proceedings often commenced long after the underlying criminal conviction, many Black immigrants placed in removal proceedings on criminal grounds had lived in the U.S. for more than a decade and had deep community ties. Deportation based on criminal convictions triggers bars against reentry that range from several years to a permanent bar, thus separating families and rupturing the Black immigrant community in particularly devastating ways.

In the post-George Floyd era when this country is split between those who embark on the journey of racial awakening, making diversity, equity, and inclusion (DEI) training vogue, and zealots who race to ban books from libraries and classrooms, and outlaw teaching Critical Race Theory, it appears that this country is still unwilling to see the deep human suffering and inequities caused by pervasive anti-blackness in our society.  Is this the year when #BlackLivesMatter and #Not1More?

~ by Zenobia Lai

[1] To help families of Black migrants pay immigration bonds, Haitian Bridge Alliance and African Bureau for Immigration and Social Affairs set up Black Immigrants Bail Fund supported by private donations.

This January marks the anniversary of many things, but what tops the list is the January sixth insurrection that took place in 2021. The January Sixth insurrection was a frontal attack of the American democracy, a violent assault on our faith that in a democracy, the majority decides and that there will be peaceful transfer of power following a free and fair election. It was the gravest threat to our democracy. The insurrection also ripped open the thin veil to bare the deeply divided Congress where immigration reform proposals have run into a dead end. Gone are the days when the bipartisan Gang of Eight ushered to passage in the Senate an immigration reform bill in 2013.

One year into the Biden Administration, despite the House passed the Dream and Promise Act of 2021 and the Farmworker Modernization Act in March of 2021 and the introduction of President Biden’s U.S. Citizenship Act of 2021, there has been no action on any of these bills in the Senate. Proposals to incorporate measures of immigration reform through the Budget Reconciliation process were thrice rejected by the Senate Parliamentarian. Common sense legislative change such as advancing the date from the current January 1, 1972 (set thirty-five years ago as part of the 1986 Immigration Reform and Control Act) to allow long-term residents to acquire permanent immigration status through the registry process went nowhere.

On the campaign trail, President Biden promised to finish the work of building a fair and humane immigration system. What would a fair and humane immigration system look like? First, stop calling immigrants “aliens.” U.S.C.I.S. has replaced references of “alien” with “noncitizen” or “undocumented noncitizen,” but there is still a lot of work remaining to meet the goal of replacing that word in all federal statutes and regulations as proposed in the U.S. Citizenship Act of 2021.

To begin building a humane and fair immigration system, we must acknowledge that the system we have is a product of systemic racism. It started with the Naturalization Act of 1790 that allowed only free whites with good moral character to attain citizenship. The law excluded African Americans, Native Americans, and all immigrants of color. The Fourteenth Amendment and the Naturalization Act of 1870 conferred citizenship to African Americans, but Asian immigrants would have to wage decades-long losing legal battle trying to squeeze within the riddle of who is a White person.[1] It was not until 1952 when Asian immigrants became eligible for American citizenship.

A fair and humane immigration system also does not create family separation. Under our current immigration system, families are separated because of the artificial quota that limit how many people from which country under which immigration category can immigrate to the U.S. The quota system is another product of systemic racism. It came into being under the Emergency Quota Act of 1921 that imposed a national origins quota restricting the number of immigrants from any country based on its share of U.S. population in the 1910 Census, thus favoring immigrants from Europe over the rest of the world. Congress further tightened the national origins quota system to favor immigrants from western Europe in the 1924 legislation by setting the quota based on the 1890 Census. Asians, except Filipinos who were U.S. Nationals, were categorically excluded due to the Chinese Exclusion Acts barring Chinese and the Asiatic Barred Zone adopted by Congress in 1917 that barred all immigrants from Asia. This racially discriminatory quota system remained the principle of our immigration system until 1965 when Congress overhauled our immigration laws and assigned the same 20,000 visa quota for every country. Despite the improvement, our immigration law creates family separation by classifying different members of the same family into various preference groups, separating immigrant families for years, and in some cases, decades. For example, in 2018, there were 1.3 million Mexicans waiting for visas to immigrate to the U.S. The interaction between per country quota limit and immigrant preference means that an unmarried adult son or daughter of a Mexican green-card-holder must wait 51 years for an immigrant visa to be available, and should this person decide to get married, this decision will set him or her back another 11 years. Filipinos who are married sons and daughters of a U.S. Citizen also experience a lengthy wait of 61 years for immigrant visas. Should the petitioner pass away before the immigrant visa becomes available, the immigration petition becomes null and void unless there is another parent who can substitute as petitioner. An immigration system that causes families to separate for decades cannot be a humane system. A quota system that originated from systemic racism is fundamentally unfair.

A fair and humane immigration system must have pathways to citizenship for our long-term residents. Among the estimated 10.5 million unauthorized immigrants, 58% have lived in the U.S. for more than 10 years as of 2019, 33% came to the U.S. at seventeen years old or younger, nearly one in three lived in households with U.S. Citizens (the overwhelming majority of them children), 96% of those in the work force were employed.[2] If the pandemic has taught us anything, it is that 7.2 million essential workers who are unauthorized immigrants have risked their lives to feed us, care for us, stock the shelves of supermarket, process our Amazon orders, and are the engines of our economic recovery. Conferring legal status to these individuals would be the true measure of our gratitude.

To have a fair and humane immigration system also means that we honor our obligations under our laws and international treaties and conventions. It means that we allow asylum-seekers to enter the U.S. to seek refuge, not turning them away under spurious public health excuses or create un-resourced refugee camps across the border in Mexico to expose migrants to grave dangers. A fair and humane system also means providing equitable access for everyone, especially Black migrants, to our immigration system. In 2021, Immigration and Customs Enforcement (ICE) operated 1,056 deportation flights, expelling at least 100,000 migrants.[3] Of these deportation flights, 154 were flown to Haiti, 116 of these flights took place after September 19, 2021, expelling around 15,300 Haitians. Most of the Haitians expelled never had a chance to seek asylum prior to removal. These numbers did not include most expulsions that happened on land border.[4]

United States is a signatory to the International Covenant on Civil and Political Rights. Article 9 of the Covenant provides that everyone “has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention.”[5] Immigration violations are civil in nature. Immigrants, and especially asylum-seekers, who violate immigration law for entering U.S. without a visa or immigration inspection should not be detained. If our immigration system continues to detain individuals for violating immigration laws, they should have assigned counsel to help them defend against deportation before Immigration Judges. Public funding to provide legal counsel to detained immigrants is sound policy not only because it improves administrative efficiency by helping immigration Judges move cases along and ensuring immigrants appear for scheduled hearings, but it is also a matter of fundamental due process rights. More than forty years ago, the U.S. Supreme Court found that indigent parents who stand to lose custody of their children have strong liberty interest, and that due process demands that they be appointed counsel in these proceedings.[6]  The U.S. Supreme Court also found that a litigant’s right to counsel is not determined by whether the case is civil or criminal in nature, but the right attaches when the outcome of the case may result in the individual’s freedom being curtailed.[7] Immigrants, children and adults alike, lost their freedom when they are thrown into immigration detention from which they are not free to leave. Detention curtails their freedom before they even get a chance to seek immigration protection. From that point on, they must alone navigate the complex immigration system operated in a language not their own against the U.S. government represented by trained attorneys. This David versus Goliath situation can hardly be fair. Unrepresented and detained individuals are more than ten times more likely to lose their bid for immigration relief.[8] The outcome of losing an immigration case is deportation and expulsion back to a country where grave danger awaits, in addition to family separation. A fair and humane immigration system must protect the significant liberty interest of immigrants and their right to due process.

Throughout decades of public discourse about immigrants and debate about what our immigration system should look like, our country looks at what immigrants do for us: pick the crops, cut and pack the meat, clean our offices and hotels, teach our children, care for our elders and sick, innovate our technology, invest to elevate our economic prowess. Immigrants must also prove their worth in dollars, degrees, diplomas, extraordinary skills, squeaky clean backgrounds, among other things. Our country rarely considers what our immigration system does to immigrants, whom we need but do not welcome. Our immigration system can never be fair and humane if we cannot agree on this core truth “that we are all human, we are all Americans and we have common hopes for our communities and country to thrive.”[9]

~ by Zenobia Lai

[1] In a unanimous decision in 1923, the U.S. Supreme Court found that the term “Caucasian” is not synonymous with “White,” and an Indian person though might be Caucasian was not White as recognized by other White people, and therefore should be stripped of U.S. citizenship. United States v. Bhagat Singh Thind, 261 U.S. 204 (1923). In so deciding, the U.S. Supreme Court contradicted its logic in deciding that Takao Ozawa, an immigrant from Japan who had adopted western culture and upbringing, was ineligible for citizenship as he was not a Caucasian. Ozawa v. United States, 260 U.S. 178 (1922).

[2] Donald Kerwin, et al., Ready to Stay: A Comprehensive Analysis of the US Foreign-Born Population Eligible for Special Legal Status Programs and for Legalization under Pending Bills, (Center for Migration Studies, Dec. 9, 2021), https://cmsny.org/publications/ready-to-stay-report/

[3] Thomas Cartwright, ICE Air Flights: December 2021 and Last 12 Months, (Witness at the Border, Jan. 4, 2022), https://static1.squarespace.com/static/5e221cacff87ba2d2833cf54/t/61d39007020a5d713c988e78/1641254920060/ICE+Air+Dec+2021F_THCPDF.pdf

[4] Nationwide Enforcement Encounters: Title 8 Enforcement Actions and Title 42 Expulsions FY2021, https://www.cbp.gov/newsroom/stats/cbp-enforcement-statistics/title-8-and-title-42-statistics-fy2021; Nationwide Enforcement Encounters: Title 8 Enforcement Actions and Title 42 Expulsions FY2022, https://www.cbp.gov/newsroom/stats/cbp-enforcement-statistics/title-8-and-title-42-statistics

[5] International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976. https://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx

[6] Lassiter v. Dept. of Soc. Services, 452 U.S. 18 (1981).

[7] In re Gault, 387 U.S. 1 (1967).

[8] Jennifer Stave, et al, Assessing the Impact of Legal Representation on Family and Community Unity. P. 28 (New York: Vera Institute of Justice, 2017), https://www.vera.org/publications/new-york-immigrant-family-unity-project-evaluation; Transactional Records Access Clearinghouse (TRAC), “Representation Makes Fourteen-Fold Difference in Outcome: Immigration Court ‘Women with Children’ Cases,” July 15, 2015, https://perma.cc/7NBM-BNXW.

[9] Jimmy Carter. I Fear for Our Democracy (New York Times, Jan. 6, 2022), https://www.nytimes.com/2022/01/05/opinion/jan-6-jimmy-carter.html

For many immigrants, crossing oceans, deserts and mountains is only part of the journey, there are numerous challenges ahead. A complex immigration system is one of the most critical challenges that many immigrants must overcome. In a system that is not trauma-informed and lacks due process protections, a misremembered time, place, or sequence of events by an asylum-seeker could be interpreted by the judge as lacking credibility and resulting in a denial.

Over the years, HILSC has engaged in ongoing communication with our partners, which helps guide our work and our effort to support the immigrant community. One of the things we heard from our partners is the growing importance and increased need for forensic mental health evaluations. Such evaluations serve a vital purpose in immigration cases, especially for clients who have experienced complex trauma. Forensic evaluations can help bolster a client’s legal case. Specifically, the forensic evaluation can provide additional evidence, corroborate the client’s story, and support their credibility. In addition, clinical expert testimony can provide an objective expert opinion as well as psychosocial education regarding the impact of trauma on a person’s psychological and emotional well-being.

Immigration attorneys have noted the vital role of forensic mental health evaluations. The synergistic collaboration between attorneys and mental health providers often leads to successful outcomes for our clients. A high-quality evaluation can sometimes be the difference between a case getting approved or not. Unfortunately, these specialized services are not easily accessible due to limited financial resources and specialized training needs for clinicians.

In 2019, HILSC launched the forensic evaluations program funded by the Robert Wood Johnson Foundation to support our legal services partners and their clients. This capacity building project has helped to connect attorneys with local clinicians and most importantly, it has helped immigration clients gain access to forensic mental health evaluations. The project has focused on expanding the capacity of high-quality mental health evaluations by including various program initiatives including network development, case coordination, financial assistance, and training. We began by developing a network of Houston-based clinicians who have training in trauma-informed psychotherapy. Today, our clinical network comprises evaluators of various clinical backgrounds, including licensed clinical social workers, licensed professional counselors, licensed marriage and family therapists, psychologists, and psychiatrists. Although their therapeutic approach and training might vary, all clinicians are trained to assess, treat, and diagnose mental health. The next step was to collaborate with our legal partners to offer specialized training focused on forensic evaluations.

Our forensic evaluation webinar series offers interdisciplinary instruction aimed to train clinicians and attorneys on best practices for conducting and incorporating mental health evaluations. Although attorneys and clinicians have different approaches and operate in different frameworks, the goal to support the immigrant community is the same. The webinar series incorporates cross training for both disciplines to give clients the best chance for a successful outcome.

After building a clinical network, HILSC focused on providing case coordination to connect trained forensic evaluators with immigration attorneys in our legal network. Case coordination consists of connecting attorneys with clinicians based on a range of factors including the client’s needs, the legal needs of the case and the evaluator’s clinical expertise. Once connected to the attorney, the clinician meets with the client, conducts the forensic interview, documents the psychological impact through a written report and provides oral testimony during the hearing. This multi-step process is often the key to successful outcomes for our clients seeking asylum.

Our commitment to program evaluation and quality improvement led us to establish critical training opportunities including our forensic evaluation mentorship program. The mentorship model is a collaborative training system which amplifies and enhances the work of our clinical network. Seasoned mentors share their knowledge, skills, and expertise in performing mental health evaluations in the immigration context. The mentorship model not only expanded our clinical network, but it has also helped set high standards of practice for clinicians who are doing this important work.

One of the challenges in accessing forensic evaluations is the cost associated with the specialized service. To minimize the access barrier, HILSC developed a stipend program focused on building capacity and defraying the cost of mental health evaluations. HILSC provides low bono stipends for forensic evaluators whose service is requested by HILSC’s legal partners. Since 2019, our forensic evaluations program has offered case coordination to pair attorneys and clinicians in 136 cases, provided more than $76,000 in stipends for mental health evaluations, with 21 cases pending. We have also developed a clinical network with clinicians of diverse backgrounds, provided interdisciplinary training on how to conduct and incorporate forensic evaluations, and finally, we have provided mentorship and technical assistance.

The pandemic has led to closure of the Immigration Courts for sixteen months, many hearings have been postponed. To ensure that clinicians are prepared to provide compelling testimony to support the clients’ cases, HILSC will offer another round of mentorship focusing on preparing clinicians for court testimony. The crux of these testimonies is to provide psychosocial education to the judge, to provide an expert opinion to explain the client’s behavior, to corroborate the client’s story and to bolster the client’s credibility. Clinicians in our mentorship program have shared that “it’s important to have support and continued growth for best practices and improvement for completing sound [forensic] evaluations.”

The second mentorship cycle will offer opportunities to support clinicians with varying levels of experience. New forensic evaluators will receive the necessary support to begin engaging in this work and experienced clinicians will have opportunities to further their professional development and get guidance from seasoned clinicians in preparing for court testimony. We will also offer a continued education curriculum with specific learning objectives and additional resources. The curriculum will emphasize integrating clinical and legal work to adopt an interdisciplinary approach in working with clients. We plan to roll out the curriculum through an on-line classroom platform that carries CEU credits for clinicians.

The forensic evaluations program has accomplished many things in the last three years. But perhaps, the most important accomplishment is to normalize mental health services and open the door for immigration clients to engage in counseling. Complex trauma can have long-lasting, detrimental effects. But mental health services can help minimize the impact and encourage clients to embark on a journey to begin healing.

~ by Zenobia Lai & Thalia Flores Werner

This past weekend, we remembered the thousands who perished in the attacks on September Eleventh twenty years ago as well as those who died in the toxic aftermath and in the wars in Iraq and Afghanistan. And, just about ten days ago, the last U.S. military flight left Kabul concluding a twenty-year war and the month-long frantic evacuation airlifting 112,000 people out of Afghanistan. The day September 11, 2001 may have been twenty years ago, but the shock, the pain, the anger, and the bewilderment feel as fresh as the moments when the four planes flew into the World Trade Center, the Pentagon and crashed in Shanksville, Pennsylvania.

Many have said that the day, September 11, 2001, had forever changed this country. Maybe it didn’t. Maybe it only provided the justification to re-shape the post-Cold-War world order according to an American image and gave those who wanted to rein in voting rights and civil rights a political cover to do so.

In the immigration world, the crack-down on immigrant rights started years before 9/11. It began with the War on Drugs in the late 1980s. The rhetoric and actions ratcheted up in 1995 following the Oklahoma City bombing that killed 168 people and wounded 680 others in addition to destroying hundreds of city blocks on April 19, 1995. Almost exactly on the one-year anniversary of the bombing, Congress passed the Anti-terrorism and Effective Death Penalty Act (AEDPA) on April 24, 1996, punishing defendants in criminal matters and immigrants alike. AEDPA curtailed defendants’ ability to challenge their conviction and severely restricted people on death row from appealing their sentence or seeking judicial review, making it easier for the government to execute people. Although immigrants had nothing to do with the bombing, they were punished any way. AEDPA limited judicial review on agency discretionary decisions, it broadened the spectrum of deportable crimes, it expanded the scope of mandatory detention and it limited relief from removal. AEDPA was the first draft of the emerging immigration enforcement framework.

Six months after Congress passed AEDPA, it passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) in September 1996 ushering in the enforcement-centric immigration scheme as we know it today. Among the harshest provisions of IIRIRA are the following:

  • Curtailed judicial review in many agency actions, such as expedited removal discussed below.
  • Expanded the scope of deportable crimes by enlarging the definition of “aggravated felony” to include many non-violent crimes with unlimited retroactive application, making many long-term residents deportable for crimes that weren’t aggravated felonies when they committed them decades ago. IIRIRA also made immigrants convicted of “aggravated felony” ineligible for discretionary relief such as cancellation of removal, thus removing immigration judge’s discretion to grant deportation relief in cases where the immigrants have significant community ties and equity.
  • Created “expedited removal” giving immigration officers and border patrol unreviewable authority to summarily deport someone who attempts to enter with fraudulent or no document without the benefit of a hearing. Expedited removal significantly impedes access to asylum at ports of entry. Those who are summarily removed are barred from re-entry for a minimum of five years.
  • Significantly expanded the scope of mandatory detention, including asylum-seekers who are subject to expedited removal until they can establish a credible fear of persecution.
  • Created three- and ten-year bar preventing someone who left the United States from reentering if she has been unlawfully present in the U.S. for more than 180 days or 365 days prior to departure. (It was not until 2013 when U.S.C.I.S. created the provisional waiver allowing immigrants who accrued significant unlawful presence to leave the U.S. to process immigrant visa at consular posts overseas without being subject to the 3- or 10-year bar from re-entry, though they may still be barred from re-entry for other reasons.)
  • Stripped immigration judge’s discretion to grant deportation relief based on the immigrant’s community ties and equities by raising the hardship standard and lengthening the years of residence for long-term residents seeking cancellation of removal (previously known as suspension of deportation) making this form of relief much more difficult to obtain.
  • Imposed one-year filing deadline requiring asylum-seekers to apply for asylum within one year of arriving in the U.S., which has significantly harmed those who struggle with English, are not mentally ready to relive the trauma, who can’t understand the U.S. asylum system, who lack legal counsel and who struggle to establish a foothold in the U.S.
  • Establish the 287(g) program deputizing local and state law enforcement to enforce immigration laws leading to racial profiling and erosion of public safety as immigrant communities lost trust in law enforcement.

The Illegal Immigration Reform and Immigrant Responsibility Act was the “cap stone” of the carefully orchestrated four-part anti-immigrant legislation that Congress passed in 1996. On April 26, 1996, Congress passed two laws: the Omnibus Consolidated Rescissions and Appropriations Act of 1996 and AEDPA. The appropriations bill restricted (and continues to) civil legal services that received any funding from Legal Services Corporation (LSC) from representing undocumented immigrants, challenging welfare reform and redistricting, filing class actions, engaging in legislative advocacy, or collecting attorneys’ fees, among other things. A month before Congress passed IIRIRA, it passed the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) that made recent immigrants who were not yet U.S. Citizens or had significant work history in the U.S. ineligible for most safety net programs funded by the federal government. Undocumented immigrants, unless grandfathered under the Act, would be ineligible for any federal benefits programs, including unemployment and housing subsidies. By defanging legal services lawyers under the appropriations bill, Congress made certain that once it moved forward with welfare and immigration reforms later in that year, there would be no legal services lawyers available to challenge these laws to protect immigrants and low-income people.

The George W. Bush Administration started 2001 attempting to create common ground with the Mexican government and Congress to fix the immigration system. The tragic events on September 11th snuffed any hopes for immigration reform. Rather, the fact that those hijacked the planes that day entered the U.S. with valid visas quickly conflated the conversation of immigration with terrorism. Instead of considering any legalization measures to regularize the status of the three million undocumented immigrants, Congress passed the Homeland Security Act a year after 9/11 on November 25, 2002. The new law yanked the Immigration and Naturalization Service (INS) from the Department of Justice and parked it with the newly created Department of Homeland Security cementing the enforcement-centric immigration policies that started with IIRIRA. No comprehensive immigration reform bills managed to pass Congress in the past twenty years, but the immense budget funding the Department of Homeland Security allowed immigration enforcement set in motion by IIRIRA to run on steroids, leading to the deportation of hundreds of thousands of immigrants, tearing apart families and disrupting our community.

I remember that morning on September 11, 2001. I was awakened at 6 a.m. Pacific Time when my staff called to alert me of the attacks on the Twin Towers and asked me if I would close the office that day. At that early hour, I could not fathom how the tragic events of that morning would forever change our country and hardened elected officials’ anti-immigrant attitudes. Just five months before 9/11, I was worrying how the collision of a U.S. Navy reconnaissance plane and a Chinese People’s Liberation Army naval plane over the South China Sea and the subsequent detention of the American crew members by the Chinese government had led to reverberating calls to invoke the national security law to put Chinese Americans in internment camp. Now with 9/11, it would be a different population who would bear the blunt of xenophobia. Vigilantes went out of their way to exert private justice by terrorizing and killing anyone who might look like the 9/11 hijackers. Sikh American men who wear turbans and long beards as part of their religious observance, individuals who looked Middle Eastern and South Asians became the targets of hate.

Since the first nationality law was passed in 1790 that determined who could be American citizens, our immigration laws have been casted and recasted by successive waves of politicians who may be themselves immigrants or a generation or two away from being immigrants to exclude, to vilify and to challenge the newcomers’ worthiness and fitness to enjoy equal justice and the rule of law. On this twentieth remembrance of 9/11, I grieve the lives lost to the tragic events. I am also saddened by our state of immigration that fails to recognize the humanity of the people coming here to seek sanctuary from persecution, war, corruption, political instability, poverty, starvation, who yearn for freedom, safety, stability, better opportunities, and the life we want for ourselves and our families.

Zenobia Lai,
Executive Director

As the Biden-Harris Administration approaches the 150-day mark, Vice President Harris’ visit to Guatemala has elevated the urgency to advance the immigration agenda. Immigrant rights advocates have fought hard for this moment when restoring humanity and dignity in our immigration system that honors family unity, supports a growing economy and provides safe haven for those fleeing persecution, war and calamities appears within reach. Houston Immigration Legal Services Collaborative (HILSC) has been meeting with local NGO partners, city and county representatives and the border sector to coordinate strategies and efforts to support asylum-seekers coming from the border. There is a deep sense of urgency to be prepared.

President Biden has taken 94 executive actions on immigration during the first 100 days of his administration, more than half of these actions were to reverse the anti-immigrant measures of the previous administration. The rapid and bold actions of President Biden on immigration are welcomed relief for immigrant rights advocates. The reversal of the anti-immigrant and anti-refugee policies of the Trump Administration has opened potential avenues for many to obtain legal immigration status.

Some of the Biden Administration’s actions have immediate implications to the immigrant community and the immigrant-serving organizations. For example, the end of the Migrant Protection Protocol (MPP, also known as Remain in Mexico) has enabled more than 12,000 individuals to enter the U.S. since February 19, 2021, about 10% of them have resettled in Harris County. Following the MPP processing, the Administration has begun to allow vulnerable migrants encamped along the Mexico borders to enter the U.S. under narrow exemptions of the Title 42 public health expulsion policy. Many of them have also resettled in Greater Houston. Whether they are released under the MPP program or the Title 42 exemption or released by CBP for other reasons, these migrants are in removal proceeding and they need legal assistance to sort out the posture of their immigration matter, and to continue their asylum claims and other immigration relief.  Changes in enforcement and removal priorities also allow immigrants in removal proceeding to reopen cases to seek termination, continuance, new hearing on the merits, or to petition for bond or parole, etc. Non-profit immigration legal services providers need immediate and sustained infusion of funding to ramp up staffing capacity to help immigrants seek immigration relief during this small window of opportunity under the Biden Administration.

In addition, the Biden-Harris Administration also expanded humanitarian protection by designating nationals from Venezuela and Burma for Temporary Protected Status (TPS) and redesignating Syrians and Haitians for TPS protection and expanded the scope of those covered. An estimated 323,000 Venezuelans and 1,600 Burmese in the U.S. are newly eligible for TPS. The redesignation of Haitians and Syrians for TPS is likely to double the current number of 64,000 TPS beneficiaries. Nationwide, nearly 420,000 foreign nationals from 10 countries are TPS beneficiaries prior to the recent designation of Venezuela and Burma, almost 13% of them live in Texas [i] among whom are more than 50,000 Salvadoran and Honduran TPS recipients. The fate of Salvadoran, Honduran, Nepalese, Nicaraguan, and Sudanese TPS-holders is up for redetermination when the current designation expires on October 4, 2021. At the same time, President Biden also increased refugee admission from 15,000 to 62,500 for fiscal year 2021 and he vowed to double this number next year. Texas is among the top refugee receiving states having resettled 10% of the refugees over the past decade. Houston area immigration legal services need to stand ready to provide legal assistance to many who would be eligible for protection under Biden Administration’s expanded humanitarian relief programs.

The expansion of humanitarian protection together with the process of allowing MPP migrants and those exempt from Title 42 public health expulsion have opened the safety valve for many seeking safe-haven in the United States, these are but band-aid to the broken and inequitable immigration system. Several bills pending before Congress offer the prospects of comprehensive immigration reform.  However, four months have elapsed since the United States Citizenship Act of 2021 was introduced in Congress and more than three months have gone by since the House passed the Dream and Promise Act of 2021 and the Farm Workforce Modernization Act of 2021, none of these bills has advanced. Without continued advocacy, the legislative process will stall, and these bills will die of inaction and foreclose the hope for any real immigration reform for years to come.

There are 44.9 million foreign-born individuals in the U.S., they account for 13.7% of the total U.S. population. Nearly half (45%) of immigrants are naturalized citizens. Immigrants make up an outsized share of essential workers working on the frontlines risking their lives to respond to the pandemic as physicians (28.7%), nursing assistants (22%), registered nurses (15.7%), respiratory therapists (13.6%), grocery and supermarket workers (16.6%), food delivery workers (18.2%), freight laborers (15.8%), meat cutters (34.7%), farmworkers (42.1%), maids (46.7%) and janitors (25.7%) despite persistent anti-immigrant attacks. Over the past two decades, both Democratic and Republican Administrations designated billions of dollars in federal budgets to attack immigrants. In 2018 alone, Immigration and Customs Enforcement (ICE) and Customs and Border Patrol (CBP) had a combined budget of $23.8 billion, an increase of 39% since 2012 even though immigration has flattened over that period.

During the period of intense assaults on immigrant rights during the Trump Administration, a survey of 254 top local funders across the United States in 2018 showed that philanthropy gave $304 million in grants that benefited immigrants and refugees across the country, and another $116 million to support pro-immigrant, pro-refugee movement groups. [ii] The philanthropic giving to immigrant and refugee community represented a many-fold increase since 2016, but at 1% (for service organizations) and 0.4% (for movement organizing) of all foundation dollars given out, it continues to be disproportionately tiny relative to the size of the immigrant population and the threats it has been under.

In Texas, one in six Texans is an immigrant, a quarter of them live in Greater Houston. Nearly half (44%) of children in Greater Houston live in immigrant household and 15% of the children have at least one parent who is undocumented. The immigration policy changes under the Biden Administration have enormous impacts on the children and families in this region. The Greater Houston philanthropy needs to adequately invest in the immigrant community to help this community thrive and succeed.

Houston Immigration Legal Services Collaborative has organized a three-part funder briefing since May 2021 to apprise the philanthropic community of the impacts of the changing immigration landscape on Greater Houston. Through the funder briefing, we also share strategies in building equitable disaster management for immigrants and highlight examples of public-private partnership as mechanism to provide sustaining support for holistic immigration legal services.

The election of Joseph Biden and Kamala Harris to be President and Vice President of the United States is only the first step toward the aspiration of building an equitable immigration system and inclusive society. By the stroke of a pen on an executive order, hundreds of thousands of individuals who lack immigration status may win the once-in-a-lifetime opportunity to obtain deportation reprieve. There is an urgency for the immigrant-serving non-profit community to be prepared to help our immigrant neighbors realize the benefits from any immigration reform. Philanthropy can help us get ready. Here are a few things that philanthropy can do to support a vibrant and inclusive future [iii]:

  • Designate proportional funding in the immigrant and refugee portfolio and give flexible, multiyear funding to support the immigrant- and refugee-serving organizations to enable them to pivot and allocate resources to swiftly adapt to emerging needs.
  • Fund a long-term vision while also support organizing and service to address short-term and immediate needs that include legal services, case management, mental health support and stabilization services to ensure immigrants’ long-term success in integration.
  • Use your network and social capital to advocate for inclusive immigration policies, make public statements against raids, racism, homophobia, and xenophobia, and include immigrants and refugee community members for your board, staff leadership and advisory councils.

The Covid 19 pandemic has made clear that the status quo pushing to maintain the system of exclusion has deepened inequality and disproportionately harmed communities of color. Philanthropy can respond to the sirens of the time by resolutely supporting immigrant communities that are organizing to combat hate and racism to build a better future for all.

– Zenobia Lai, Executive Director

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[1] See Pulling Back the Curtain: Analysis of New Government Data on Temporary Protected Status (TPS AWG, March 2021) https://cliniclegal.org/resources/humanitarian-relief/temporary-protected-status-and-deferred-enforced-departure/pulling.

[1] _, Won’t You be My Neighbor? Local Foundations, Immigrants & Refugee Populations (National Center for Responsive Philanthropy), https://www.ncrp.org/initiatives/movement-investment-project/our-active-movement-areas/pro-immigrant-and-refugee-movement/2020-local-foundation-funding.

[1] See e.g. Call to Action for Philanthropy to Address Urgent Regional Humanitarian needs for Asylum Seekers (Grantmakers Concerned with Immigrants and Refugees, Feb. 2021) https://www.gcir.org/funder-recommendations/2021-02/Strategic-Investments-in-Mexico-to-Support-Regional-Humanitarian-Vision-Recommendations.