Vital Interests: Bill, it is a pleasure to welcome you to Vital Interests Forum. For many years, you have worked on immigration, asylum and deportation issues. Important developments in the treatment of migrants have been ignored in recent months because of the COVID crisis. Can you provide an update on what’s happening along the U.S. Southern border, in detention camps, and in other Immigration and Customs Enforcement facilities.

Bill Hing: The answer to that question has several parts. One is that, every day, people applying for asylum, or who are fleeing persecution, continue to arrive at the U.S. Southern border. The pandemic may be a contributing factor, but the rampant violence in countries such as Honduras, Guatemala and El Salvador, and to be honest with you, even parts of Mexico, continues to drive people to the Southern border.

However, in March because of the pandemic, the Trump administration said you can all gather at the Southern border, but we're not going to let any of you in. Prior to the pandemic, a metering system was instituted and people would wait their turn, sometimes many months, to have access to the port of entry. Then they would slowly be allowed to apply for asylum and possibly get a hearing. That process came to a standstill because of COVID. Now no one, whatever their status, is being allowed to come in.

Those folks are basically stuck in border towns like Tijuana, Nogales, and other parts across the southern border from Texas like Ciudad Juarez and Matamores. It is a very dire situation for those folks. There are probably in the range of a couple hundred thousand people.

VI: That is a very large number.

Bill Hing: There are some shelters but they are inadequate and many people are just living on the street. The last time I was there was in early March, I was on the Mexico side of the Arizona border. At that time, some people were being allowed into the country, but ever since then, it's been totally shut down. That's one thing.

The other part is that most of those folks are trying to present themselves at the border legally. There are, of course, some people who are trying to cross the border illegally. If they are caught, the Trump administration has said, since Covid is causing the border closure, those taken into custody will not even be given a chance to apply for asylum. The border patrol will just put those folks back across on the Mexico side. So those folks are being deported without hearings. In normal times, if you get in, even if you entered without an inspection, you’d get detained but you would get a chance to apply for asylum. Well, now those folks are not even getting a chance to apply for asylum. They're also being put across right away. That's a significant group.

The other group are those who, prior to the pandemic, made it into the United States, but were put in detention. For those folks, the numbers have been dwindling. There's now maybe 20,000 to 30,000 people that are in immigration detention facilities around the country. That's down from the more than 50,000 who were in detention. Part of the reason that number is down is because some folks have given up; they've just asked to be deported. Some of the folks who either contracted COVID or were in a facility where there was a mini-epidemic, and some of those have been released.

But there still are, for example, family detention centers in Dilley, Texas and Karnes, Texas that are still operating. Those are for women and children. Those places have a few hundred people at this time. At one point, they had thousands of people in those centers. They sometimes have their hearings in detention facilities - especially those places without families - and they almost always represent themselves because there aren't enough volunteer attorneys, and they almost always lose their hearings. My students and I actually represent a lot of those who have lost their hearings and we write the brief for them to the Board of Immigration Appeals, the immigration administrative appellate body. 

Then there are facilities that consist of almost all men in immigration detention. There are a couple of big ones in Arizona and some in Southern California, Georgia, and Louisiana as well, and those hearings are proceeding. So deportation hearings and asylum hearings have continued for those that are in detention. For those who have been released from detention, the immigration courts have been closed down until now. Just this week, some immigration courts that handle non-detained cases have reopened like in Boston and Las Vegas. But San Francisco has not reopened yet for non-detained cases, and in some places across the country, deportation hearings are going to begin again.

VI: What happened to the Trump administration's plans to work with Mexico and countries in Central America to keep the migrants from leaving? Didn't the Mexican Army send troops down to their Southern border to keep people from coming into their country and making their way north?

Bill Hing: That is a great point. When President Andres Manuel López Obrador of Mexico was elected a little less than two years ago, he came in with a platform of resisting the anti-immigrant sentiment of the Trump administration. Right away President Trump played hardball with him. Basically, Trump tied the issue to the renegotiation of NAFTA, now called the United States-Mexico-Canada Agreement (USMCA). Essentially, Trump said if you don't start enforcing your southern border, and also detain migrants before they get to our border, we're not going to sign that.

So, yes, Mexico is enforcing its own immigration laws. It's interesting, I'm in communication with immigrant rights advocates in Mexico. Mexico has granted asylum to many asylum seekers, not so much from Honduras, Guatemala and El Salvador, but, for example, from Venezuela. Anyway, it’s difficult to get through Mexico. Many folks still make it, but Mexico is really doing a lot of the dirty work for the United States.

Then, on top of that, there are these asylum cooperative agreements (ACAs) that the United States has strong-armed Guatemala, El Salvador, and Honduras into signing. Under these ACAs, those countries have agreed that the United States can send people to those countries to apply for asylum. So that, for example, a Honduran might get deported or sent back to Guatemala to apply for asylum in Guatemala or to El Salvador. What's insane about that is that those are countries that have so much violence. They're dangerous. So who in their right mind would want to ask for protection in a country that itself is very violent?

Again, the desire for American foreign aid has a lot to do with getting the countries to agree to these ACAs. The United Nations is very upset about that because, in theory, asylum should be processed in places that are safe, and the UN has tried to expose that.

The Trump administration also imposed the Third Country Transit Ban. If you travel through another country, before you get to the Southern border, you have to apply for asylum in that other country and show that you've been denied before the United States will entertain your asylum application. Of course, it's moot right now because of the pandemic closure, but that meant that anyone coming from someplace other than Mexico, who went through Mexico, had to apply for asylum in Mexico first.

VI: Weren’t similar rules applied in Europe as immigrants from the Middle East and Africa travelled through countries like Greece and Italy to get to Northern Europe?

Bill Hing: Exactly, yes. That's the kind of rule the Trump administration is trying to impose here.

VI: The UN has strict definitions about refugees and asylum seekers. Do those UN definitions apply to people coming to our Southern border trying to get into the United States? Are they valid refugees and asylum seekers under UN rules?

Bill Hing: Unfortunately, not. The United States is a signatory to the 1967 Protocol on Refugees, which is embodied in the Refugee Act that the United States Congress passed in 1980. The courts have held that the provisions for asylum and refugee status are controlled by U.S. laws, not by international laws.  Advocates have tried to make broader arguments but with very limited success.

Every year, the President of the United States decides who can enter the country as a refugee and from which parts of the world.  No president, either Democrat or Republican, has designated significant numbers from Latin America for refugee status. Otherwise, the numbers have always fluctuated. After the Vietnam War, Southeast Asians were given refugee status, and in recent years applicants from certain Middle Eastern and African countries were designated as refugees. Trump has allowed in the lowest number of refugees ever in U.S. history. 

In contrast, anyone who has a well-founded fear of persecution who makes it to our border, in theory, can apply for asylum. Unfortunately, even though the UN might deem someone from Guatemala a refugee, the United States doesn't recognize that person as a refugee. All the United States has to offer people from Central American countries is asylum status, but you have to physically get here first.

When you arrive in the United States, from any country, if you’re being persecuted  for political, racial, or religious reasons then you can seek asylum. So it's pretty restrictive. The UN only really plays a big role for the African and Middle Eastern refugees who seek to come to the United States. They must be pre-screened by the UN before the U.S. will even consider anyone from those parts of the world.

VI: Last year you published a book titled American Presidents, Deportations, and Human Rights Violations. The UN and other international organizations support a very rigorous human rights regime. How does American immigration policy interact with global human rights norms?

Bill Hing: The UN has human rights language and agreements. So does the Inter-American Commission on Human Rights, which in fact has jurisdiction over the United States due to its membership in the Inter-American Organization of States (OAS). There are definitely different conventions and agreements that the U.S. is a party to that require adherence to specific human rights norms. So you have a couple of fora if you believe the United States has violated human rights.

In particular, there is one forum that States of the Americas have used, the Inter-American Commission on Human Rights. In fact, my students and I filed a petition before that Commission with 40 agencies from Central America and the U.S. who have signed on requesting a thematic hearing. We are raising the human rights violations of the Convention on Human Rights and the Convention on the Rights of Man that the U.S. is actually a party to along with other States of the Americas. We're alleging that several provisions have been violated by the U.S. and Mexico. Our complaint is against the two nations for violating the human rights of asylum seekers who have traveled through Mexico and have been stopped at the U.S. border in partnership with Mexico. Our petition was granted, and our hearing will take place on October 9, 2020.

Here's the unfortunate truth - and it's important for your readers to understand this - the United States is a party to numerous human rights agreements which means the United States is subject to laws that have evolved over time, that have become customary international law, even notions related to, for example, the rights of children and the rights of migration, et cetera. But historically the United States has a terrible record in terms of following those provisions. And even when an international tribunal might make a decision that states the U.S. is in violation of a particular provision, it's not unusual for the United States to ignore those orders and to thumb its nose at international decisions. So many of these international organizations have no clout with the United States.

On the other hand, the United States has used those laws when it wants to impose restrictions on a particular country. It will often try to get an order in an international tribunal and use it as a reason, for example, for instituting economic sanctions, or even in some cases, justifying military action. So the United States is very two-faced about its international obligations and adhering to what are considered to be universal human rights norms.

VI: In addition to the mass of migrants at the Southern border, there is a large number of what are known as undocumented aliens in the United States. An agency of the Department of Homeland Security - the Immigration and Customs Enforcement Agency (ICE) - has been aggressively rounding up those considered illegals and immediately processing them for deportation. Can you provide some insight on this reality?

Bill Hing: One thing about the Trump administration that hasn’t gotten much coverage, though I think it is probably one of the worst things it has done, is it has unleashed Immigration and Customs Enforcement agents. The personnel of ICE are often individuals - and this is also true for the Border Patrol - who wanted to go into law enforcement, but didn't qualify for regular police departments. Many believe that they are serving a purpose and that they're saving the United States from foreign invaders and from national security threats.

When Trump came into office, we heard about the Wall, the Muslim ban, and what's happening at the border. The public hasn’t paid as much attention to the fact that the local ICE offices scattered all over the country now can do whatever they want. The Obama administration had given ICE a list of priorities: concentrate on gang members, concentrate on serious criminals. With Trump, that priority list is out the window.

If you're an ICE agent and you figure out that somebody is deportable, then you can go after them. It's up to the local individual offices. So, if they have a list of people, for example, who didn't show up at their court hearing or that the Obama administration had decided not to deport - often, it was parents of U.S. citizens, or somebody who had lived here for 25 years undocumented but hadn't done anything wrong -  they have that list, and so many of those offices just work off that list.

So, they'll go to the apartment building, they'll go to the place of employment. While they're there, asking for that individual on the list, they'll ask anyone else who happens to be there, at the wrong place at the wrong time, "Where are your papers?" A lot of collateral arrests have taken place this way. They pick on sanctuary cities. There are some places like San Francisco, Chicago, New Haven, and Los Angeles that try not to cooperate with ICE, and ICE will pick on those places. They also will go into factories where they hear that there are many undocumented workers. There was one such big raid in Mississippi last year.

They like doing that. Many of these ICE local directors love getting publicity, and rounding up one hundred people while the children of those arrested are looking. That definitely has been going on.

VI: What kind of numbers are we talking about since the Trump administration has taken off the gloves and thrown away Obama's list of priorities?

Bill Hing: As my book states, Obama, at one time, was labeled the deporter-in-chief - Donald Trump quickly wrested that title away from him.  In the last three and a half years, well over a million people have been deported by the Trump administration. It's a lot of people. Now that includes the border, but it also includes people that own small businesses or, as I said, parents of U.S. citizens, spouses, former military, and folks who have been convicted of minor offenses that have been deported.

VI: So ICE agents can work with impunity within sanctuary cities? Local police or the local authorities can't refuse to have ICE operate in their municipalities?

Bill Hing: The term sanctuary city is misleading. The San Francisco Police are not going to stand guard and block ICE agents from coming to the city limits. They can't do that. What sanctuary city means is that the local officials cannot use city funds to cooperate with federal immigration officials. That's really all a sanctuary city does. But when ICE comes in on its own, with its own resources and goes to people's homes or places of business, they can do whatever they want to. That's happening and it's happening all over the country.

VI: Another category is people in the U.S. on protective status. ICE agents are also rounding up these people for immediate deportation. Can you explain that category?

Bill Hing: When the Obama administration had its list of priorities with regard to immigration, they were continuing what had been in place for many years. In 1990 Congress passed a law that included something called Temporary Protected Status. This came on the heels of the civil wars in Central America. In a sense, there are two eras when large numbers of folks have fled Central America because of violence. The first was in the 1980s during civil wars. Now we're living in the second era when people are fleeing gang, cartel and domestic violence from Central America.

In the 1980s, there were civil wars in Nicaragua, El Salvador and Guatemala. Many people were just caught in the middle of conflict, and so they fled to the United States. They didn't quite fit into the very rigid asylum requirements, where they had to show that individually they were targeted. Many of these folks were just caught in the crossfire. Congress decided we should have a provision for people who have fled here because of that kind of violence as well as other catastrophic events, we should protect them for a while, so it was called Temporary Protected Status. The first group that got TPS was Salvadorans.

Since that time, there have been dozens of other countries; Sudan, places like Haiti, Honduras. But honestly, “temporary” became a long time because every President, including Bill Clinton, George Bush and Barack Obama just continued temporary status for people that had been here before a certain date. Those presidents extended TPS because country conditions were still dire. One of the first things that President Trump did was to terminate, without review, all temporary protected status.

The termination of TPS was delayed in the courts for a while, but a recent decision of the Ninth Circuit Court of Appeals ruled in favor of the president. Plaintiffs had hoped to succeed along the lines that the president’s attempt to terminate DACA, the Deferred Action program for Dreamers, ran into a problem with the Supreme Court. The issue ultimately will likely get resolved in the Supreme Court as well.

In terminating TPS, that’s when Mr. Trump said, “we don't want these people here,” referring to people with Temporary Protected Status. That is when he infamously used an expletive to describe certain African countries and Haiti, where people who were granted Temporary Protected Status came from.

VI: Some of these people here under Temporary Protected Status were swept up in ICE raids and are in detention? 

Bill Hing: Yes, and most of them have lived here more than 25 years. There's about 250,000 U.S. citizen children, who are the dependents of folks who are in Temporary Protected Status.  There are a lot of mixed families in the United States. Families, in other words, where there may be one member who's undocumented, but a child or a spouse might very well be a citizen.

VI: Let’s discuss these children and those in the DACA program. There was a recent Supreme Court regarding DACA. Can you explain the outcome and what it means for the status of the DREAMers?

Bill Hing: DACA (Deferred Action for Childhood Arrivals) describes children who are undocumented and were brought to the United States as children, usually by parents who also were undocumented or overstayed visas. These kids grew up here, going to high school and college like any other kid who grew up in the United States. They are called DREAMers because of the Development, Relief, and Education of Alien Minors Act that was introduced first in 2000 and re-introduced several times. It would basically grant legalization to those children. They would get a Green Card and a path to U.S. citizenship.

Obama tried to get the DREAM Act passed but was unable to do it in 2010. Even though he had control of both the House and the Senate, it fell five votes short in the Senate although it passed the House. But as you know, in the Senate, you need 60 votes not just 51, and they got 55 votes in favor not 60, and so the DREAM Act did not pass. As a result, DREAMers put pressure on President Obama. In 2012, actually during his re-election campaign, Obama decided to say I'm going to grant deferred action for these children by executive order. Basically, it grants them two things; forbearance from deportation and employment authorization. Regular extensions were authorized as well. 

Trump campaigned on not just closing off immigration, building the Wall, and stopping Syrian refugees, he also said he was going to terminate DACA.The odd thing is that he didn't terminate it right away when he came into office in January, 2017. In fact, he said good things about DREAMers and people thought, "Well, maybe he's not going to terminate it." But he got threatened by the State of Texas. The State of Texas said, “Listen, we don't like the DACA program. If you don't terminate it, we're going to sue you and embarrass you.” That was in the summer of 2001, and they gave him 60 days to act.

In September 2017, Trump announced, "Okay, through Attorney General Sessions and the Department of Homeland Security we're going to terminate DACA." They followed orders giving only one reason; we're going to terminate DACA because it's illegal.

That was the problem. By the time the case got decided by the Supreme Court this year, the Court said that reason was too simplistic. You have to provide a better reason than that. Which part are you saying is illegal? The part where you're not going to deport them, or the part where you’re allowing them to work? You have to be clearer than that. And these young kids are saying that they have acted in reliance of DACA. They've gone to college. They've started working. Many are essential workers. Many are parents of U.S. citizens. You have to address that. You cannot just cancel a program without explaining why and how you are going to accommodate any special problems that might have surfaced.

This decision could be characterized as a victory for the Trump administration in the sense that the Supreme Court said you can terminate DACA. But you have to do it the right way. You've got to give explanations and more thought. You can't just say, simply, it's illegal. The Supreme Court gave the president an open invitation. It was a five-to-four decision. Justice Roberts was in the majority and he wrote the opinion, and he gave the Trump administration a format to follow if they wanted to cancel it, but they haven't done it.

It's a puzzle. Political scientists probably know better than me why they haven't done it. Maybe they just think it would backfire on them. It might hurt them with Latino voters, who knows? But they have not acted to terminate DACA again.

VI: Is it the situation now that there is no immigration into the United States? The Trump administration is using COVID as their rationale to basically halt anyone not a citizen or existing Green Card holder from coming into the U.S.,  even those with the popular H-1B visas for highly trained people coming in to work in American businesses, especially in the high tech industry. 

Bill Hing: Everything is suspended. Even foreign students aren’t being allowed into the United States, which is affecting a lot of universities because they've relied a lot on foreign students.  Things have come to a standstill, and industry is upset, families are upset. They even threatened to close down what's called CIS, Citizenship and Immigration Services, that handles visa processing. They threatened to close that down for lack of funding, but they just changed their mind last week. They won't close it down because it will affect other processing.

For example, there are people that are applying for Green Cards that are already here and those applications are going forward. There are people who want to apply for citizenship because they've been lawful residents - Green Card holders - for more than five years. That had come to a standstill as well, but now some of that's going forward. But you're right. Any new person trying to immigrate lawfully to the United States, with rare exception, and only under extraordinary circumstances can they come to the United States.

COVID has given the Trump administration cover for essentially stopping new immigrants.

VI: So halting programs that they wanted to suspend anyways?

Bill Hing: Exactly, right, yes.

VI: Another goal of the Trump administration is to abolish birthright citizenship which is the constitutional right of every child born in the United States, no matter the status of their parents, to be granted American citizenship. Trump believes this right is being abused by so-called “anchor babies.”

Bill Hing: Yes. Back in the 1890s, the Supreme Court decided a case called Wong Kim Ark. It involved the child of two Chinese immigrants who were living in the United States and that child, Wong Kim Ark, who was born in San Francisco, traveled to China to visit his parents who had decided to go back to China. He went to visit them and tried to come back. It was actually his second trip. In his first trip, he came back with no problem. The second time he came back, they said well, your parents were not citizens when you were born; and therefore, you're not a citizen.

Well, that case went to the U.S. Supreme Court and the Court held that under the Constitution, Wong Kim Ark is a U.S. citizen. If you are born here and subject to the jurisdiction subject to the jurisdiction of the United States you are a citizen. Based on that, every other court that's looked at the issue, even when the parents are undocumented, have ruled that the child born in the United States is a U.S. citizen. Your citizenship is determined by where you were born. That's what birthright citizenship is.

The Trump administration is arguing that that shouldn't be. That we shouldn't grant citizenship to somebody whose parents are not U.S. citizens; and therefore, we should stop this. The problem is, as every credible legal scholar will tell you, the only way you can do that is through a Constitutional Amendment. Your readers may know, it's not easy to pass a Constitutional Amendment. You've got to get both Houses of Congress to pass it by a supermajority, and then you've got to get three-quarters of the State to also agree. It would be, in my opinion, impossible to get a Constitutional Amendment passed that would re-interpret birthright citizenship.

VI: If the Trump administration does not succeed in winning a second term and a new Biden government takes over, what do you think we can look forward to in terms of real immigration reforms, resolution of the DACA question, and seasonable programs for foreigners to work and study in America?

Bill Hing:  I think that even if the Senate remains Republican-controlled, there still is a chance of reform. I'll tell you why there could be comprehensive immigration reform and certainly, the DREAM Act will pass. By comprehensive immigration reform, I mean providing a path to citizenship for the 10-12 million undocumented immigrants. Not just the DREAMers. Here's the reason why I think this is possible.

I recall in 2012, when President Obama won re-election, having long conversations at bipartisan meetings. It wasn't just academic meetings. These conversations were actually with political leaders of both parties. I was at the home of James Carville in New Orleans where there was a group invited to discuss the next Obama term. As strategists, they were saying it's the Latino vote that screwed the Republicans. So they came close to passing comprehensive immigration reform that following spring, but it was John Boehner that couldn't get it through the House. It passed the Senate in the spring of 2013. The reason why the Republicans wanted to pass immigration reform is they felt that they could never win the White House again without the Latino vote.

Now, of course, we know differently., but I view Trump as just a weird phenomenon. A standard Republican, if we're ever going to see a standard Republican again, cannot win without Latino votes. So, I think that if Joe Biden wins- especially if he wins by a landslide, and it's clear that not just the Black vote but the Latino vote came out for him - I think that the Republicans are going to be back to what I heard in 2012, which is, "You know what? We better do something for immigrant rights, otherwise we're never going to have credibility with Latino voters."

Anyway, it's a long-winded way of saying to you, I do think there's a good chance for reform if Biden wins.

VI: That's good to hear. We're actually coming to the end of our time - we like to end our conversations on a positive note. I think you provided us with one. 

Bill Hing: It was very pleasurable speaking with you, John. I really appreciate it.

Bill Ong Hing is a Professor, Director of the Immigration and Deportation Clinic, and Dean’s Circle Scholar at the University of San Francisco School of Law. Throughout his career, Professor Hing has pursued social justice through a combination of community work, litigation, and scholarship. He is the author of numerous academic and practice- oriented publications on immigration policy and race relations, including American Presidents, Deportation and Human Rights Violations (Cambridge Univ. Press 2019); Ethical Borders—NAFTA, Globalization, and Mexican Migration (Temple University Press, 2010), Deporting Our Souls–Morality, Values, and Immigration Policy (Cambridge University Press, 2006), Defining America Through Immigration Policy (Temple University Press, 2004). He was co-counsel in the precedent-setting U.S. Supreme Court asylum case, INS v. Cardoza–Fonseca (1987), and represented the State Bar of California in In Re Sergio Garcia (2014), in granting a law license to an undocumented law graduate. Hing is the founder of the Immigrant Legal Resource Center in San Francisco and continues to volunteer as general counsel for this organization.