The administration has asserted, in effect, that it can override by presidential fiat a law written and passed by Congress.

Late Monday night, a federal judge in San Francisco issued a temporary restraining order against the Trump administration’s new policy of refusing asylum consideration for refugees who cross the border between ports of entry. The court had heard arguments that morning in a case brought by nonprofit groups serving asylum seekers.

On November 9, President Trump issued a proclamation declaring that for a period of at least 90 days, refugees who cross the U.S.’s Southern border anywhere other than at an official port of entry will be ineligible for asylum. The same day, the Departments of Justice and Homeland Security issued amendments to their own rules governing asylum, to the same effect.

The pronouncements were the administration’s latest move in a longstanding effort to dismantle the United States’ asylum system.

“If this rule is valid,” the judge asked the government’s attorney, “what is left of congressional intent?”

The pretext for the rules change is the approaching Central American migrant caravan, which the president had called an “invasion” and a national emergency in the days leading to the recent midterm elections. In his proclamation, issued just a few days after the elections, the president again stoked fears of the caravan, and argued that compelling refugees to present themselves only at ports of entry will allow for “orderly processing.”

In reality, however, there is less and less “processing” happening at official ports of entry. For the past several months, in violation of both U.S. and international law, Customs and Border Protection has routinely turned asylum seekers away, telling them to come back later or, at some crossings, to contact Mexican immigration officials to make an appointment.

But waiting indefinitely on the southern side of the border is not an option for many refugees from the “Northern Triangle” countries of El Salvador, Guatemala and Honduras, who are fleeing transnational gangs that are also present in Mexico. They also fear Mexican drug cartels that conscript migrants to act as drug-smuggling “mules.” Gay and trans refugees, in particular, face imminent danger in Mexico, where homophobic and transphobic violence is common.

Lee Gelernt, staff attorney for the American Civil Liberties Union who argued the plaintiffs’ case, told the court that in the past 48 hours he had learned that Mexican authorities have been preventing unaccompanied minors from applying for asylum at U.S. ports of entry.

These situations leave refugees who have been turned back by U.S. immigration authorities with little choice but to cross between ports of entry. For them, the administration’s new rules effectively blocked any chance of seeking asylum at all, which, Gelernt believes, is the point. “The government doesn’t want to give asylum to people from the Northern Triangle region,” he told reporters after the hearing.

The Trump administration insists that asylum is a “discretionary benefit,” which administration officials can expand or constrain at will. The plaintiffs — a coalition of civil- and immigrant-rights organizations — argued that, to the contrary, the rules are fixed in plain English in statutory laws that can only be undone by Congress. Under the Immigration and Naturalization Act, refugees may seek asylum “whether or not” they entered the United States “at a designated port of arrival.” The government’s proposed rule change plainly and specifically contradicts this language.

At its heart, the case is a debate over the most basic conception of the separation of powers. The administration has asserted, in effect, that it can override by presidential fiat a law written and passed by Congress. “If the courts allow the president to take this step here,” the plaintiffs argued, “he could not only override statutory asylum law, but disregard the entirety of our congressional immigration scheme.”

Judge Jon Tigar, who presided over the hearing, agreed with the plaintiffs. He analogized the government’s argument to issuing a rule declaring that “you are allowed to come to the federal courthouse in any vehicle,” but then stipulating a second rule saying, “if you come here on a bicycle, you’re not getting in.”

“If this rule is valid,” he asked the government’s attorney, “what is left of congressional intent?”

Judge Tigar took less than a day to issue his ruling granting the temporary injunction. “(I)f what Defendants intend to say is that the President by proclamation can override Congress’s clearly expressed legislative intent, simply because a statute conflicts with the President’s policy goals, the Court rejects that argument also,” he wrote in the decision. The government is all but certain to appeal.

After the hearing on Monday morning, Gelernt characterized his side’s case as involving “serious concerns about separation of powers against the backdrop of an enormous humanitarian crisis.”

“What the government really seems to be saying,” he continued, “is ‘we don’t like asylum.’”

Copyright Capital & Main

In June the Dept. of Homeland Security asked Congress to allow it to transfer $200 million to ICE to cover agency overspending, continuing a pattern of such requests.

Big spending on immigration enforcement at the Department of Homeland Security promises to be a major sticking point as Congress prepares to negotiate a budget deal early next month.

Even though illegal immigration to the United States appears to be at its lowest point in 46 years, spending on immigration enforcement is at an all-time high. (The U.S. Border Patrol reported that in 2017, the last year for which statistics are available, apprehensions at the U.S.-Mexico border had dropped to 303,000, and had been declining nearly every year since 2000, when a record 1.6 million people were arrested.)

 By overspending its congressional allocation, ICE is effectively writing its own budget.

U.S. Immigration and Customs Enforcement’s detention operations exceeded the agency’s budget this year, while ICE spending on its vast system of immigration jails shows no sign of slowing.

But a newly elected Democratic majority in the House of Representatives could pose a challenge to the agency’s chronic overspending — and to its aggressive detention and deportation policies.

ICE jailed so many immigrants in 2018 that it ran out of space in its more than 200 lock-ups, and placed 1,600 people in medium-security prisons.

Congress set detention and deportation spending for 2018 at $4.4 billion, enough to detain some 40,520 people annually.

However, by June, 44,000 men and women languished in immigration detention, filling 4,000 more beds than Congress authorized. DHS asked Congress to allow it to transfer $200 million to ICE to cover agency overspending. The department plucked the funds from several of its agencies, including the Federal Emergency Management Agency, the Coast Guard and the Transportation Security Administration.

Critics of ICE say that by overspending its congressional allocation, the agency has engineered a stealth expansion of the U.S. detention system, effectively writing its own appropriation, and skirting the Constitution’s separation of powers in which Congress, not the executive branch, has the authority to set spending limits.

Congressman: “We shouldn’t be using FEMA as a piggy bank to fund detention beds.”

“It allows them to quickly expand the detention system contrary to congressional intent,” said Heidi Altman, director of policy at the National Immigrant Justice Center, a non-profit immigrant rights group.

Such intradepartmental funds transfers aren’t uncommon, but a congressional staffer who asked that his name not be used for this story said this one was controversial because nearly all of the money went to ICE for detention and deportation. ICE has received other big budget increases in the past two years. In March 2017, the agency got a $2.6 billion supplemental appropriation; three months later, ICE was back, requesting that Congress approve a $91 million funds transfer.

The $200 million June 2018 transfer, wrote DHS spokeswoman Katie Waldman in an email, was “in line with the FY 2019 president’s budget request for U.S. Immigration and Customs Enforcement.”

However, the additional funds covered FY 2018 overspending – not future shortfalls in 2019; Congress has yet to agree to a permanent fiscal year 2019 budget. Waldman didn’t answer an email asking to clarify her comments.

Congressional Staffer: Whenever ICE outspends its budget and adds detention beds, it gains leverage for the next round of budget negotiations.

The same congressional staffer who discussed the controversy surrounding the $200 million DHS funds transfer also noted that when ICE outspends its budget and adds detention beds, it gains leverage for the next round of budget negotiations because reducing beds would mean freeing detainees and, ICE argues, their release could jeopardize public safety.

Growth by funds transfer also generally avoids public scrutiny. Transfer documents submitted by government agencies are not released to the public. But earlier this year, Sen. Jeff Merkley (D-OR) released DHS’s June 2018 transfer and reprogramming request, noting that $10 million had been taken from FEMA just as Hurricane Florence was making landfall in North Carolina.

DHS shot back, claiming the funds were administrative and weren’t earmarked for hurricane relief. But according to Ur Jaddou, director of the advocacy group DHS Watch, and a former Chief Counsel at U.S. Citizenship and Immigration Services, the DHS agency that oversees immigration and citizenship applications, “The government these days doesn’t operate on a plethora of administrative resources. It’s really functioning on a very limited budget. When they say they’re using unused money, it’s just a ruse.”

Congress has shown its frustration with ICE’s disregard for its authority, but hasn’t acted to rein in agency spending.

Congress has scolded ICE for its “lack of fiscal discipline and cavalier management.”

In budget recommendations for fiscal year 2019, the Senate Appropriations Committee wrote, “In light of the Committee’s persistent and growing concerns about ICE’s lack of fiscal discipline, whether real or manufactured, and its inability to manage detention resources…the Committee strongly discourages transfers or reprogramming requests to cover ICE’s excesses.”

Two years before, the explanatory language in the supplemental appropriations bill was even harsher. Appropriators pointed to a “lack of fiscal discipline and cavalier management” of detention funding, saying the agency seemed to think its detention operations were “funded by an indefinite appropriation. This belief is incorrect.”

“We shouldn’t be using FEMA as a piggy bank to fund detention beds,” said Rep. Dutch Ruppersberger (D-MD). “Unelected agency heads shouldn’t unilaterally shift taxpayer dollars for purposes they weren’t intended.”

Still, despite congressional annoyance with ICE’s free-spending ways, it hasn’t conducted meaningful oversight of the immigration detention system, said Greg Chen, director of government relations for the American Immigration Lawyers Association.

“The current leadership in Congress hasn’t been interested in conducting hearings on detention spending and whether detention is even necessary at the scale it is now,” Chen said.

When President Trump issued an executive order calling for no-holds-barred arrests of undocumented immigrants in January 2017, the border patrol reported that apprehensions at the U.S.-Mexico border were lower than at any time since 1972 — when the detention population was a fraction of its current size.

ICE reported that in fiscal year 2017, 41 percent of crimes of which detainees had been convicted were traffic- or immigration-related.  Just 11.4 involved murder, sexual assault, kidnapping, robbery or assault.

Chen argued that ICE has a legal responsibility to screen each person in its custody for risk – either of flight or to public safety. “ICE is just not doing that and defaulting to the practice of detaining people.”

Democrats in Congress could take on a more robust role in overseeing ICE spending, now that they’ve gained a majority in the House. They could put conditions on spending, call for Government Accounting Office reports and hearings, cut funding, demand answers if ICE overspends and bring its actions to the attention of the press, said DHS Watch director Ur Jaddou, who is also a former congressional staffer.

“The next time they [ICE] need something,” Jaddou said, Congress can respond, ‘Do you really want it? You better listen.’”

Copyright Capital & Main

Co-published by Newsweek

MEXICO CITY – The migrant caravan began streaming into the Mexican capital Monday night. It veered westward instead of proceeding up the coast through Vera Cruz state en route to Matamoros and Brownsville or McAllen, Texas because the coast has a reputation for violence and extortion. That is why many people were talking ominously about the 100 migrants already missing from the caravan. While the coast is the fastest route, it is the one made notorious in the 1980s and ’90s by La Bestia — “The Beast” — the train that immigrants have, en masse, continually ridden atop in their journey north to the U.S.

The coastal route is rife with bandits, cartel thugs and all manner of extortionists. Those perils are why the 5,000 to 6,000 refugees who make up the caravan headed here when the government of Mexico offered to put them up for three days in the national stadium. I arrived on day four, and there were still close to that number there, though several groups of 50 to 100 each had left that morning after the caravan’s assembly had decided it was time to begin to move north to Querétaro. They have a system in place to make group decisions. But they would set out only in fairly large groups for security, to prevent individuals and families from being preyed upon by those who find profit in exploiting the vulnerable.

The collective discipline of the caravan is impressive, especially since a good number of these refugees are just boys and young men, 16 to 20 years old, fleeing Honduras because of gangs, political corruption and lack of opportunity. I spoke to one, Hernán, who was vexed by what’s going on at the U.S. border, so different now than before when there was a sort of begrudging humanist acceptance of immigration from Central America. He knew, like everyone knew, that Americans were a bit racist, but, he said, “They need us because we are hard workers and willing to work.”

He was surprised when I told him I was an American. He told me he thought Americans had “washed their hands of us” and that none of them cared. I tried to explain Trump, Republicans, the fear and ignorance of some Americans, but it felt like trying to explain yourself while breaking up with a romantic partner. Finally, I just said we have an extremely corrupt government just like you do in Honduras, and what you and I share is the solidarity of our humanity. That got him to smile and shake my hand firmly and is maybe the best thing I did today. But his image of Americans washing “their hands of us” haunted me all afternoon.

I continued on into the large tents that the Mexican government has set up on the athletic fields of La Ciudad Deportiva, thinking it was time to see some kids. I first got into this work through a colleague involved in economic justice with immigrants back in Los Angeles, who later connected me to people doing similar work in Mexico City, where I live part of each year. Over the past four years, I’ve worked in the Mexico City barrio of Tlatelolco with a group of nuns called the Scalabrinianas, whose mission is to aid refugees. They have several locations in Mexico, and are incredibly effective in doing the laborious paperwork that leads to asylum for Central American refugees who have been victimized by gangs, police, civil war, economic hardship and climate change. (Historically anomalous droughts and flooding in Honduras and Guatemala have increased emigration.) At the Tlatelolco site, I had helped set up classrooms to keep the kids engaged while they awaited asylum. Happily, almost all the mothers with those children were successful in their efforts to gain asylum in Mexico.

Inside the stadium I stopped for a while to watch some speakers who were explaining to hundreds of refugees seated in the grandstands the state of the U.S. border and the substantial dangers inherent in their arrival there. News teams arrived surrounding their correspondents with cameras as they reported on the scene. Clowns entertained off to either side, and a lucha libre-style wrestling match commenced next to the speakers’ stage.

Soon enough, I found a place where a group of women sent by Mexico City’s municipal government had set up a mural station. Large pieces of butcher paper were taped to the sides of giant tents where hundreds had set up camp, and the kids were going at it with paint brushes and their fingers. I met a little kid named Carlitos who didn’t want to paint, so we found a ball and had a nice game of football. He couldn’t have been more than 3 and a half, but that boy could really boot that ball. And he fell to the ground after every kick, laughing gleefully and begging for me to help him up. A helicopter appeared, circling the stadium. Carlitos could not contain his joy as we chased after it together. He told me he was thirsty and we went to get some water from the nuns and drank it with Eddy. At first I thought Eddy was his brother, but after a while I began to realize he was likely his father, and not a day over 20.

The nuns brought all the water. In fact, the nuns brought all the food too, though I learned that the Mexico Central Market donated bananas and water in the first few days. I was soon enlisted in the assembly line for the afternoon comida. And I learned then that the Mexican government was not offering any food or services, nor were any local companies. The government’s reasoning was that the caravan was a sensitive issue diplomatically. (I never heard an excuse from the business community.) But Mexico had already allowed passage for the caravan, and now a stadium for them to rest and regroup in. It wasn’t willing to draw the wrath of the angry Orange God to the north by feeding the refugees as well. They were trying to walk some kind of fine line. At least they gave them this stadium and seemed willing to let that three days run for a week or more.

But 6,000 hungry people were still 6,000 hungry people. How on earth could anyone but a government handle such a number? I knew the Scalabrinianas from the Casa Mambré, where they housed 50 refugees. I’d been in those food lines and they were busy. But what I learned today about them was beyond impressive. They did the whole thing on donations and whatever they could find in their own paltry budget. We set up a line and we did it. We fed all 5,000 to 6,000. And it was completely ad libbed.

Tins of tuna dumped in bowls and mixed with canned vegetables. Cans of beans. Bread. Tortillas. And all of it cold, except for the occasional soup tureen, or vat of spaghetti, which would appear on the shoulders of Honduran youths who had volunteered to retrieve donations via the Mexico City subway, which the city had offered them the use of gratis. The Sisters of Charity, of Mother Teresa fame, arrived with hundreds of hard-boiled eggs. We worked, we laughed, we marveled, we just kept dishing it out on paper plates with plastic spoons.

The nuns kept asking me if I were a priest, while the boys, women and the few older folks stood in line patiently, thanking us, showing a dignity I’ve rarely witnessed in humans under duress ever before, and it’s not likely I ever will again. It was an amazing experience of the community of humanity, which independent of every government implicated in this mess (the U.S., Mexico, Guatemala, El Salvador, Honduras) was getting the business of providing for each other done in a very powerful grassroots way.

By 4 p.m., the line had begun to dwindle and I decided to take a break. Back to the kids to recharge my batteries. I couldn’t find Carlitos, but I found Isabel, who wanted to draw with pencils on paper, both of which I just so happened to have. I’d found them in a backpack when I was working in the donations tent, where teenagers popped their heads through the seams asking for shoes, shirts, pants, often with smiles so big and friendly, you just couldn’t ask them to please go around to the front.

Isabel didn’t know what to draw and I suggested a house, a tree, a family. She warmed to the idea and added a pool and rain to fill it. And flowers. Then she decided her house should be a castle and the tree should grow apples on all its branches. I told her it was such a nice picture and she looked at me beaming, one front tooth missing.

All of these people are dreamers. I felt a little guilty and irresponsible saying it as I left, but I told Isabel I’d see her in the U.S. and that I’d come visit her house and eat her apples. I couldn’t get her to let go when she hugged me goodbye. Now I need to go back home and find a way to make it happen. I’m not discouraged after what I witnessed here, though the challenge is daunting.

The truth is we have room for these people; we all know it – in our economy, in our schools, our parks, among the families they already have here, and most important, in our hearts. Trust me on that one. All Trump’s claims about criminals and terrorists? Sure, there are likely a few bad eggs in any group of 6,000, but I never witnessed a single scuffle or conflict. All I saw were conscientious people in need with a willingness to do whatever was necessary to be treated with the same dignity they treated me and each other with all day long.

Copyright Capital & Main

Millions of people could go hungry or forego medical treatment for fear they could jeopardize their chances or those of family members to legalize their status in the U.S.

Co-published by American Prospect

Immigrants who use Medi-Cal, food stamps, housing assistance or Medicare prescription drug subsidies could be barred from obtaining green cards or visa extensions under a proposed rule the Department of Homeland Security published in the Federal Register October 10. Currently only those who use cash assistance or who require long-term institutional care at government expense are barred on public charge grounds.

Immigrant rights advocates, health care providers and local governments predict devastating results, especially in California and other states with large immigrant populations: Millions of people would go hungry or forego medical treatment for fear they could jeopardize their chances or those of family members to legalize their status in the United States. The newly uninsured would seek care at hospital emergency rooms, likely waiting until their conditions are painful and costly to treat. Surprisingly the Department of Homeland Security echoes these predictions, but still contends the rule change is necessary.

“It’s just unconscionable that a family would have to choose between food, health care or a green card for their children.”

“DHS seeks to better ensure that applicants for admission to the United States…do not depend on public resources to meet their needs, but rather rely on their own capabilities and the resources of their family, sponsor, and private organizations,” the government notes in its proposal. “Self-sufficiency has been a basic principle of United States immigration law since this country’s earliest immigration statutes.”

The California Primary Care Association, the trade group for the state’s community health clinics, predicts that between 20 and 60 percent of non-citizens could disenroll from public programs, including Medi-Cal, delivering a potential body blow to California’s health care safety net. The forecast is based on what happened during a similar scare 22 years ago, when Congress approved welfare and immigration reform laws that, for the first time, specified that those who received federal public benefits could be excluded from the country on public charge grounds. (The wide gap in the percentage forecast reflects varying rates of disenrollment from different programs and different immigration statuses of individuals, legal permanent residents, visa holders and refugees.) The Clinton administration initiatives didn’t define federal public benefits, but later instructed immigration officials to bar only those who used cash welfare benefits or those who required government-paid institutionalization for long-term care.

One policy analyst says the rule change is an “end run around Congress” that would favor immigration of wealthier individuals and those with advanced degrees or job skills.

“It’s just unconscionable that a family would have to choose between food, health care or a green card for their children,” says Louise McCarthy, CEO of the Community Clinic Association of Los Angeles County.

The rule would instruct immigration officers to give positive weight to green card applicants with incomes of more than $62,000 for a family of four.

National Immigration Law Center policy analyst Jackie Vimo says the rule change is an “end run around Congress” that would favor immigration of wealthier individuals and those with advanced degrees or job skills.

Immigration officers would have broad discretion to exclude children, the elderly and non-English speakers in determining who would become a public charge.

“President Trump tried to change our immigration system, which has been a family-based system. This is trying to pass the RAISE Act through the back door,” Vimo said, referring to the 2017 Reforming American Immigration for Strong Employment Act, which would cut legal immigration in half and limit legal immigrants’ abilities to petition for legal status for family members.

The administration’s proposal would exclude those who have received 15 percent or more of the federal poverty level in food stamps or cash assistance, or $1,821 for a single person annually, as well as those who have been on Medicaid or who have received housing assistance for 12 consecutive months in a three-year period from becoming legal permanent residents. It wouldn’t penalize individuals who received benefits before the rule took effect.

Under the rule change, immigration officers would also have broad discretion to exclude children, the elderly and people who don’t speak English in determining the likelihood that an individual would become a public charge.

DHS predicts dire health consequences if its own proposal takes effect.

DHS hasn’t specifically proposed to exclude immigrants whose children are insured under the Children’s Health Insurance Program, which offers low-cost care to children whose parents earn too much to qualify for Medi-Cal, but it has asked for the public to comment on whether it should do so.

DHS estimates that the new public charge rule would cause some 5.5 million people nationwide to either disenroll from Medicaid (as the program is known outside of California) or fail to sign up for fear of immigration consequences. (The DHS estimate is based on a percentage of the foreign-born population who sought to legalize their status between 2012 and 2017.) The government would save some $1.5 billion, but DHS also predicts dire health consequences if its proposal takes effect, writing that it would lead to:

•“Worse health outcomes, including increased prevalence of obesity and malnutrition, especially for pregnant or breastfeeding women, infants, or children, and reduced prescription adherence;

• Increased use of emergency rooms and emergent care as a method of primary health care due to delayed treatment;

• Increased prevalence of communicable diseases, including among members of the U.S. citizen population who are not vaccinated;

• Increases in uncompensated care in which a treatment or service is not paid for by an insurer or patient;

• Increased rates of poverty and housing instability; and

• Reduced productivity and educational attainment.”

The DHS press office did not respond to an email query or to phone calls asking how it weighed these negative consequences against the potential benefits of the rule change.

The new rule is so stringent that if American citizens were subject to it, one in three would be excluded, Vimo said. It’s also so complicated that among its costs to society, DHS listed an opportunity cost of eight to 10 hours for immigration lawyers representing immigrant clients and others who would seek to understand it.

Thus, it’s likely that few people have read the fine print, either of the final proposal or of two earlier versions that were leaked to the public last spring.

But fear of applying for benefits is already palpable among immigrant patients at Eisner Health, a network of community health centers that serve low-income patients in Southern California, say staff members. Katie Tell, Eisner’s Vice President for Development and Communications, noted that patients sometimes make untenable choices for fear of immigration consequences.

“Do they enroll or play it safe and not get the care they need? If we have less people in Medi-Cal, it could destabilize community clinics,” she said.

But Eisner Health staff report that patients are increasingly fearful of applying for benefits. They say that several women who received Medi-Cal to pay for prenatal care and delivery have recently called insisting on reimbursing the clinic out of pocket for their services. Other patients have refused to sign up for Medi-Cal for their children, who are eligible for the program.

Today, health care providers predict similar outcomes, which they say would reverse some of the progress California has made in tightening its health care safety net. The Affordable Care Act included a major Medi-Cal expansion that added nearly four million people to its rolls and cut the uninsured rate in half, from 17 percent to 8.5 percent between 2013 and 2015. Many previously uninsured Californians who, in the past, had used costly emergency services, were able to access more cost-effective primary and preventive care. Clinics like Eisner expanded and increased their services, but Carmela Castellano Garcia, CEO of the California Primary Care Association, says disenrollment from Medi-Cal could mean some clinics would have to cut back on programs.

The Department of Homeland Security is legally required to consider public comments for 60 days in drafting its final rule, however the FCC ignored that requirement last year in scrapping net neutrality rules — claiming that it only considered comments that introduced new facts or made legal arguments. Meanwhile, the Department of Justice has announced its intention to change the way immigration judges apply the public charge rule, in order to align with the DHS proposal.

Copyright Capital & Main

The Adelanto Detention Facility, operated by a private, for-profit prison company for Immigration and Customs Enforcement (ICE), is California’s largest immigrant detention center. In 2017, two detainees died within weeks of each other there.

Late last March, Osmar Gonzalez Gadba, a 32-year old Nicaraguan immigrant, was found hanging by a bedsheet at the Immigration and Customs Enforcement’s Adelanto Detention Facility. About two weeks later, ICE reported that a second detainee, Sergio Alonso Lopez, 55, of Mexico, had died in a nearby hospital of internal bleeding – the fifth detainee death since Adelanto opened in August 2011, and the sixth fatality to occur in ICE custody so far this year. The California facility is run by the country’s number two for-profit prison company, the Florida-based Geo Group.

Now, a 41-year old woman detained at Adelanto tells Capital & Main that she has lost full use of her right arm and leg after suffering stroke-like symptoms, and alleges that her treatment has been poor.

The Geo Group’s stock has soared on news that the Trump administration plans to greatly expand the ICE detention system, as has that of Core Civic (formerly known as Corrections Corporation of America), the U.S.’s largest for-profit prison company. Human rights groups, however, are concerned about the already poor quality of health care for detainees across the country and worry that expansion will make it worse. After the 2015 death of 44-year-old Raul Ernesto Morales of colon cancer, the Adelanto facility was pressured to improve care. But the company that Geo hired to do so has a poor record in jails, prisons and detention facilities across the U.S. What is more, a report scheduled for release in early May by Human Rights Watch and Community Initiatives for Visiting Immigrants in Confinement (CIVIC) will show that in ICE detention, health-care services nationwide are still substandard, and perhaps dangerous.

Last year Human Rights Watch examined 18 in-custody deaths in facilities across the country that occurred between 2012 and 2015, and concluded that substandard care likely contributed to the death of Morales and six others.

Morales, who was from El Salvador, had been in ICE custody for four years at the time of his death, three of them at an Orange County jail, with his last year at Adelanto. An ICE detainee death review showed he had complained of gastrointestinal symptoms for two years before his cancer was diagnosed. ICE investigators noted that three days before Morales’ death, guards shackled and transported him to a hospital emergency room in a passenger car instead of an ambulance, after an outside doctor who’d been treating him said he was “bleeding out.” The investigators called the move “highly risky.”

Investigators also noted that half the nursing staff at Adelanto was inexperienced and untrained in conducting clinical assessments of patients. Off-site medical appointments were at times canceled or delayed because lab understaffing meant test results were sometimes unavailable when expected.

ICE investigators didn’t determine that poor care contributed to Morales’s death. Last year, however, a review of the ICE investigation by Human Rights Watch concluded that it probably did.

“Had Mr. Morales’ gastrointestinal symptoms been evaluated much sooner as was clinically indicated, it is possible that the malignancy from which Mr. Morales died might have been caught at a time when it was still treatable,” the report noted, quoting a medical consultant who analyzed the records.

Human Rights Watch researcher Clara Long said her group’s new report will show that health care in immigration detention has not improved. The study reviews medical records of detainees who died, as well as those who have survived but who said they had received poor care.

Long added that Trump administration plans to build more detention facilities will mean “more deaths due to subpar care and more serious medical issues undetected and untreated.”

In late April, ICE Los Angeles field director David Marin led reporters on a tour of the Adelanto lockup. It sprawls across 108,000 square feet of high desert 40 miles north of San Bernardino. It is the state’s largest Immigration and Customs Enforcement detention center, with some 1,700 people from 70 countries living behind its bars. It’s run under a contract arrangement with the city of Adelanto.

Inside the walls, Marin showed off medical-examination and X-ray suites, a psychiatric observation area, and a dental suite. Carlos Deveza, health services administrator for Correct Care Solutions, the Tennessee-based for-profit that provides health care at Adelanto, said the facility is fully staffed with a physician and mental health personnel. Marin told Capital & Main that CCS came on board in 2016 when ICE made it clear to Geo that its health-care services must improve in the aftermath of Morales’ death. But ICE declined to provide the agency’s most recent Adelanto oversight reports that would show whether its own inspectors have found that health care, especially in the areas it criticized, had gotten better.

The company is among the largest for-profit providers of prison medical and mental health care in the country, with 11,000 employees in prisons, jails, ICE detention centers and community corrections facilities in 38 states. Like other for-profit prison health-care providers, it faces a deluge of lawsuits alleging wrongful deaths and denial of care. Currently more than 260 such claims are pending against CCS alone in more than 30 states.

For example, attorneys for the family of 38-year-old Jennifer Lobato alleged in a 2015 complaint that she died a preventable death of dehydration and electrolyte imbalance as she withdrew from methadone in a Colorado jail cell, and received no medical attention from CCS staff. In California, Armando Vargas, a jail inmate with a long history of mental illness and suicide attempts, hanged himself in the Mariposa County Jail, allegedly after being denied his medication while in CCS care at the jail. His attorneys further allege that no one attempted to administer CPR when they found him hanging in his cell last August. And, last year, the Nation magazine reported that the parents of Nestor Garay sued CCS and the government for wrongful death after their son suffered a stroke in a Texas prison and later died. They alleged their son was forced to wait five hours before being transported to the hospital after his stroke.

In Adelanto, detainee Norma Gutierrez shuffles slightly, dragging her right leg as she enters a tiny interview room on the women’s side of the massive facility. The right side of her mouth droops and her right arm seems weak and trembles.

Norma Gutierrez claims her roommates reported that nurses called her seizure a “freak show.”

“I look in the mirror and I’m not the same,” she says tearfully.

She recalls the time she awakened on the floor of her dorm, after collapsing into the arms of her dorm-mates last January. She couldn’t move her mouth or her eyes, and she felt stunned and disoriented.

She was taken to a San Bernardino hospital where, she said, she had blood tests, an MRI and X-rays, but claimed hospital nurses refused to answer any questions about her condition, simply telling her she was fine. The next night, she said suffered another collapse. Gutierrez claims her roommates reported that nurses called her episode a “freak show,” while a guard with the rank of lieutenant also reportedly made inappropriate comments about Gutierrez.

This time, she says, she wasn’t hospitalized. Instead, she was taken in handcuffs to a cold room with a bed, a toilet and two blankets. Gutierrez says she remained alone there for four days. The only medical attention she received was from a nurse who took her pulse and brought her previously prescribed medication for depression and anxiety. Later, a psychologist told her that her attack had been psychosomatic. She was returned to the dorm where she suffered a third episode. This time, she says, she didn’t bother to report her symptoms.

One detainee defended the care CCS has provided recently. He told Capital & Main that in the past there were long delays before detainees could get appointments with nurses and doctors. It’s better now, he said.

But Gutierrez says she’s no longer requesting care at Adelanto — she’ll wait to see a doctor on the outside.

Geo Group vice-president Pablo Paez declined to comment on the issues Gutierrez raised and responded to questions by Capital & Main with a statement expressing confidence in the care CCS offers:

“GEO provides high quality, around the clock medical care at Adelanto in partnership with its healthcare subcontractor Correct Care Solutions. Medical care at Adelanto and all other GEO ICE facilities is provided pursuant to mandated, performance based national detention standards set by U.S. Immigration and Customs Enforcement and also adheres to guidelines and standards set by leading third-party accreditation entities including the American Correctional Association and the National Commission on Correctional Health Care.”

Likewise, CCS spokesman Jim Cheney declined to answer questions, both about Gonzalez’s case and the company’s policies and practices, and instead provided a statement identical to Geo’s.

David Marin, the ICE field director, said he and his colleagues are proud of the facility and the care it offers. In an email, ICE spokeswoman Virginia Kice said that her agency will review the Adelanto deaths, and cited the thousands of medical, mental health and dental visits conducted at the facility, and the fact that ICE covers the cost of treatment in the community when it’s necessary and approved.

Denver-based civil rights attorney Dan Weiss, however, said CCS makes it a practice to deny care, understaff its facilities and assign medical staff to duties beyond the scope of their professional licenses.

“Among civil rights lawyers, everybody knows what they do — they kill people for a living,” Weiss said, pointing to cases like that of Jennifer Lobato. “But outside that narrow slice of America, people don’t know. People assume they’re providing a valuable service. People don’t realize how dangerous it is to go to jail and get sick.”

Health care at Adelanto and other ICE facilities, however, may draw greater scrutiny in coming months as the state legislature considers a bill by State Senator Ricardo Lara (D-Bell Gardens).

Lara’s Senate Bill 29, which passed the senate judiciary committee in late March, would require detention centers to meet the latest ICE standards for medical care and other conditions of confinement, and give detainees the right to sue in state court. The bill would also prohibit California cities like Adelanto from acting as intermediaries between ICE and for-profit prison providers.

“Immigrants bear the brunt of a business where profit often trumps care,” Lara said as he urged judiciary committee members to move SB 29 to the appropriations committee, where it currently awaits a hearing.

Human Rights Watch’s Clara Long said Lara’s bill could help ensure that detainees in California get humane treatment. “It might prompt ICE to change their ways,” she said.

In Washington, DC, Mexican Embassy spokesman Ricardo Alday said his government also plans to investigate Sergio Lopez’s death. While problems in ICE detention have existed for years, he said, now any abuses might be a result of the “perception that anything goes because of the current [political] climate.”

ICE has facilities in hundreds of county jails around the U.S., building a dependency among counties on money paid for housing detainees.

Bay Area immigrant communities and immigrant rights activists felt they’d won an important victory July 10. At a news conference, Sheriff David Livingston, flanked by the Contra Costa County Board of Supervisors, announced that his department was ending its contract with Immigration and Customs Enforcement (ICE) to hold immigration detainees in Richmond at the West County Detention Facility, one of the county’s four jails.

Immediately, the organizations that had put pressure for years on the county over its cooperation with ICE demanded the release of the detainees, urging authorities not to transfer them to another location. For the next two months, until the immigrant facility inside the jail was closed, detainees’ families and their supporters mobilized to get legal help, and raise the bond money needed to bail people out of detention. In the end, they raised tens of thousands of dollars, and freed 21 of about 175 detainees held inside the center. The rest were transferred.

Supporters of Lourdes Barraza and her husband Fernando were able to raise the bond to get him released. He came to the next vigil to show support for other families, holding his youngest daughter.

A final vigil held September 1, after the ICE facility closed, was a bittersweet moment. For seven years, monthly vigils had been held under the portico next to the center’s doors. After the sheriff was forced to abandon the ICE contract, however, activists and families were forced to gather next to a new chain-link fence, in the traffic lane of the highway outside the detention center’s parking lot.

The vigils at Richmond’s West County Detention Facility went on longer than protests at any other county jail.

Several former detainees, some freed just days before, came with their families to celebrate. Other families, however, faced the reality that their detained loved ones were now far away, in centers ranging from Adelanto in San Bernardino County to Arizona. Alexa Lopez’s father, Raul, was taken to a facility in Colorado.

“We can’t see him anymore,” said his wife Dianeth.

At the end of an hour of songs, prayers and speeches, the participants wrote messages on white ribbons to those still detained, and tied them onto the chain-link fence.

Rev. Deborah Lee, the vigil organizer and director of the Interfaith Movement for Human Integrity, and other faith activists outside the detention center the day it closed.

ICE spokesman Richard Rocha accused those who had pressured the county of being responsible for separating families. In a statement when the contract was canceled he said, “Instead of being housed close to family members or local attorneys, ICE may have to depend on its national system of detention bed space to place those detainees in locations farther away, reducing the opportunities for in-person family visitation and attorney coordination.” Immigrant rights activists called that a threat and tried to free as many detainees as they could.

Rev. Deborah Lee, director of the Interfaith Movement for Human Integrity, and the central organizer of the vigils, said the faith groups involved had to examine their conscience. “The transfer of many detainees instead of their release was hard to swallow at first, and many families felt helpless,” she said. “We asked ourselves if we were responsible for their transfer, as ICE accused us. But the families reminded us that ICE moves detainees all the time, and often they don’t know where their own family members are.”

The ICE argument, that forcing the county to divest from cooperation in detention would harm the detainees, is similar to arguments heard during the fight for divestment from apartheid in South Africa. Corporations investing in South Africa at the time said divestment would harm those people who divestment proponents were trying to support.

Kara Hernandez and her son Victor Jr. came to the last vigil with her husband, Victor, who had just been released before the immigration detention center was closed.  Victor Hernandez embraced Hugo Aguilar during the last vigil, showing the friendship that had developed between them during months inside.

Opposing divestment, however, was then and is now also a matter of economic self-interest. ICE was paying Contra Costa County $3 million per year to house immigrant detainees. Yet the sheriff didn’t hire any new employees with the money, according to Lee. Instead his department relied on overtime by the existing workforce. In a petition a year ago detainees complained they were being held in cells 23 hours a day, that there were no toilets in the cells, and that free time for calling relatives or taking showers was often canceled. One detainee asked to be deported in preference to continued detention.

“County jails are the worst place to be an immigrant detainee, even worse than many of the huge privately operated detention centers,” Lee charges. “They have far fewer services for people, and aren’t built for long-term detention. Of course, what does that say about the conditions for the non-immigrant people imprisoned there?”

Hulissa Aguilar came to a vigil to ask for help to get her father Hugo released.  After raising the bond and getting him out, the family was reunited at the last vigil, together with Hugo’s sister Isela and brother Gonzalo.

ICE has facilities located in hundreds of county jails around the country, building a dependency among counties on the money paid for housing detainees. The city councils of Hoboken and Jersey City protested when Hudson County, New Jersey, supervisors (all Democrats) voted last July to renew its ICE detention contract. “The county and cities shouldn’t be in the business of profiting off human misery,” Jersey City Mayor Steve Fulop told the New York Times. Sacramento was receiving $6.6 million annually from ICE before it canceled its contract in June. Other contracts have also been canceled in Santa Ana, Virginia and Texas.

The vigils at the West County Detention Facility went on longer than protests at any other county jail. “They created a monthly platform,” Lee explains, “where detainee families could come and ask for support. A consistent, regular event provided a place where people who weren’t necessarily activists could participate. People brought their children, made their own signs, and came to play music. Often one person from a congregation would come at first, and then go back and recruit others. From the beginning, we were committed to the long haul.”

Lee relied on faith congregations as a base, and each month appealed to one of them to take responsibility for the vigil. As the vigils gained momentum and before they were successful, Lee explained why congregations were morally obligated to be involved: “Since the detention center is in our community, we can’t look away. We have to own it, to scrutinize and examine what goes on inside, and be involved with the detainees and their families. Ultimately, we have to force our local authorities to divest and get out of the business of detention, and stop collaborating and making money from it. It’s not impossible. It’s something that people can do to end the detention system.”

Hulissa Aguilar and Victor Hernandez, along with many vigil participants, tied ribbons to the fence after writing messages on them expressing support for the families of other detainees.

The Trump administration’s immigration crackdown appears to be crowding out other law enforcement priorities, according to a new analysis of Justice Department data.

A study released Monday by Syracuse University researchers showed that federal immigration prosecutions in June comprised 94 percent of all cases in the five U.S. Attorney districts along the southwest border. That is up from 86 percent in March. The report noted that federal officials in those border areas are moving forward with more prosecutions that are being referred by the Customs and Border Protection. In June, prosecutors moved forward with more than 11,000 of those cases – up 74 percent since March.

The spike in immigration prosecutions comes only a few months after Justice Department data showed that the Trump administration has overseen a 20-year low in white-collar criminal prosecutions. (See graph below.)

Graph: Syracuse University

Syracuse researchers noted that the immigration focus appears to have come at the expense of prosecutions in other areas that U.S. Attorneys oversee.

“Federal prosecutors are responsible for enforcing a wide range of important federal laws – designed to combat narcotics trafficking and weapons offenses, battle those polluting air and water, counter corporate and other schemes to defraud the public, and much more,” they reported. “Unless crimes are suddenly less prevalent in the districts along the southwest border, the odds of being prosecuted for many federal offenses have declined.”

The simultaneous increase in immigration prosecutions and decline in white-collar crime prosecutions followed Attorney General Jeff Sessions’ April 2018 announcement of a “zero-tolerance policy” and his demand that U.S. Attorneys focus on immigration.

“To those who wish to challenge the Trump administration’s commitment to public safety, national security, and the rule of law, I warn you: Illegally entering this country will not be rewarded, but will instead be met with the full prosecutorial powers of the Department of Justice,” Sessions declared. “To the department’s prosecutors, I urge you: Promoting and enforcing the rule of law is vital to protecting a nation, its borders, and its citizens. You play a critical part in fulfilling these goals, and I thank you for your continued efforts in seeing to it that our laws—and as a result, our nation—are respected.”

Copyright Capital & Main

Since Donald Trump’s election in 2016, immigrant-rights attorneys have been waging a furious rearguard action to protect immigrants and would-be immigrants from a race-baiting federal administration. The last couple of months have been particularly ferocious.

In April, the Trump administration embraced a “zero tolerance” policy against those crossing the southern border without papers, a decision that resulted in the separation of thousands of children from their parents. It also slowed to a crawl the processing of asylum claims, locking out thousands of asylum seekers who have been left encamped in Mexico. It continued to largely shut U.S. doors to refugees – barely a few dozen Syrian refugees have been admitted into the U.S. in the first half of 2018. It continued the roll back of temporary protected status for more than half a million U.S. residents. And it has made clear it intends to lock legal immigrants out of a vast array of public services. In June, the Supreme Court upheld Trump’s Muslim travel ban, paving the way for the president to claim a national security prerogative for an array of anti-immigrant and discriminatory policies.

Here in California, attorneys across the state are gearing up for an intensification of an already brutal, two-year fight to protect immigrant communities from an increasingly punitive federal government and its enforcement agencies.

Capital & Main interviewed five leading immigrant-rights attorneys about their legal strategies and their predictions as to how these struggles will play out in California, and nationally — with California continuing to take the lead in efforts to resist the swing to xenophobia — over the coming months and years.

Capital & Main: Are we at the nadir now, nationally, vis-à-vis immigration policy?

Judy London, directing attorney for Public Counsel’s Immigrants’ Rights Project in Los Angeles: How low can our government get? It keeps getting lower than anyone thought. The meanness, the complete disregard for human rights is staggering. And the sophistication in trying to eliminate every remedy. The illegality of what they’re doing is stunning. Pre-Trump, we could advocate and reach out to human beings in government. We didn’t always prevail, but we prevailed a lot.

Kevin Johnson, Dean of the University of California, Davis Law School: We’re seeing a series of skirmishes on immigration that reveal some fundamental problems with our immigration laws. We still haven’t been able to come to a consensus about the kinds of compromises immigration reform might entail. It has to deal with the undocumented, with legal immigration and with some kind of enforcement devices – like workplace enforcement. I view all these things as part of the bigger problem and inability to agree on reform. We’re currently at a place where we can’t have rational and unemotional discussions about the hard issues.

C&M: Let’s not forget that many of the harsh government actions towards immigrants, especially those without documents arriving from Central America, began under President Obama. Is this simply more of the same or is it qualitatively different?

Holly Cooper, co-director of the Immigration Law Clinic at UC Davis, and co-counsel in Flores v. Sessions (a case that limited the amount of time children caught crossing the border could spend in detention facilities): We had predictability under Obama. Now there’s just a huge level of unpredictability. Obama was very hard on women and children arriving as asylum seekers. He had family separation; we had to litigate that. [But] we could kind of tell what his priorities were and develop strategies for the long term. Now, it’s a war on everything, and we never know when the next executive order will come down.

DACA [Deferred Action for Childhood Arrivals] was beneficial, but a limited recourse for young people. Trump’s tried to take that away. It’s still under heavy litigation. There’s also the travel ban. Immigration advocates are under a constant hyper-vigilance. I never felt like I was always responding to a massive crisis under Obama.

Judy London: Post-2014, there [has been] a great deal of success getting foundations to fund legal services for unaccompanied minors. Right now we represent 180 unaccompanied minors. And we’ve done a lot of work around protections for immigrant children, both in the DACA context and [with] asylum seekers amongst the unaccompanied children. They have more access to lawyers than families released from detention, who land in L.A. and literally are sleeping on Skid Row. We have a team of about 12 people serving unaccompanied minors released from shelters.

C&M: How do you respond to the huge crisis created not only by neglectful treatment of unaccompanied minors, but also by the recent deliberate wholesale separation of parents from children along the border?

Judy London: We’re going to see all kinds of different lawsuits. The scope is new — there’s going to be a lot of law created. It’s just a matter of time before a child dies in custody or is raped. There is absolutely no plan for how to manage detaining families and children. They have no idea what they’re doing. There’s very much the banality of evil. It is breathtaking.

C&M: There are so many fires to try to put out at the moment. What, for you, are the most urgent?

Holly Cooper: For children’s detention, in the short term we have a plan to defend the Flores settlement agreement. There’s been an executive order where Trump has told the government to modify it so he can create internment camps. [On June 21] they filed an ex parte motion to modify the agreement, even though the judge already decided the issue in 2015. It was upheld by the Ninth Circuit. Now they’re saying things have changed and the decision has led to more immigration. We don’t believe it has. They don’t provide any evidence. Most people are telling me they are migrating to protect their children from death. I’ve never met an immigrant who said, “I migrated with my child so I wouldn’t be detained.” To say someone from the highlands of Guatemala understands the Flores settlement is pretty far-fetched.

We have one girl, a client, [who] crossed the border, was traumatized when she was separated from her siblings, had a psychotic breakdown and was put in a residential psychiatric treatment center. At the time, she was 15. We’re even hearing reports there are kids as young as 6 this is happening to. We’ve had reports from the American Bar Association that the kids are so traumatized they’re being sedated. The government has told us they believe they have the authority to medicate children. We’re getting reports 300 parents can’t find their children in Texas. There may be more. It’s the kind of stuff that keeps you up at night. I can’t sleep.

Stephen Kang, detention attorney with the American Civil Liberties Immigrants’ Rights Project, based in San Francisco: There’s so much work to be done. There’s been such activity in this administration to roll back protections for immigrants and take an extreme enforcement-oriented position to immigration. We’re in year two, and it doesn’t look that much better than year one. My role as a litigator is mitigating this. I view it as part of a broader movement of folks mobilizing around immigrant-rights issues. It’s important to remember the Muslim ban was an executive decision. Congress still has the power to override it. I think there’s hope in the sense that there’s going to be individual and potentially systemic cases.

C&M: Does being in California, with a legislature and an attorney general sympathetic to immigrants, help you here?

Kevin Johnson: The attorney general of California understands that the more [federal] policies are at the edge, the more lawsuits you’re going to see. Over the next six months we’ll see challenges to the legality of indefinite detention; it’s an issue the Supreme Court recently bounced back to the Ninth Circuit, in Jennings v. Rodriguez. We’ll return to DACA rescission and a lot of fights over sanctuary legislation.

Holly Cooper: When you put the state in as well, that’s helpful. We can pool our ideas — the more brains behind something, the better your legal case is. That can have an effect on the judiciary. Judges are now very, very receptive to granting more creative forms of relief.

Anoop Prasad, senior staff attorney at the Asian Law Caucus’ Immigrant-Rights Program: One of the biggest challenges is the Justice Department lawsuit against California’s sanctuary policy — the series of laws putting limits on the way California cooperates with immigration officers.

C&M: Do you think the Justice Department challenge will succeed?

Anoop Prasad: It seems like it is going to get dismissed, [though] I’m sure they will appeal it up. It’s going to be a fairly slow process working its way up to the Supreme Court. We’re looking at three-plus years of litigation. It seems unlikely the district court judge will issue an injunction. So, the laws will stand. State and local jurisdictions have a lot of tools [with which] to push back on deportations – because the deportation machine has been built on state and local law enforcement.

The primary driver of internal deportations is local law enforcement. ICE is picking up most people because they have some contact with local law enforcement, and there is a very high level of electronic information sharing. California’s sanctuary policy says it’s up to them to say, ”No, we’re not going to cooperate.” Also, ICE’s detention system is spread over hundreds of facilities; very few are federally owned. California passed a law restricting the abilities of local sheriffs to rent future space to ICE. The goal is to make it as hard on ICE as possible, to push back. Long-term, we must think about chipping away at, and dismantling, this really awful system of deportation we’ve built over the past couple of decades.

C&M: Does the Supreme Court’s upholding of the travel ban, which uses national security arguments to bar visitors and immigrants from several Muslim-majority countries, open the door to broader bans? And if so, how will immigrant-rights attorneys in the state respond?

Kevin Johnson: This president likes to poke the bear every day on immigration. Just this weekend, he tweeted something about deporting people without hearings. It’s not legal — you can’t just summarily deport people. This is a time when lawyers can really make a difference – organizations, and the attorney general of California, who understand that the only way to deal with ignorance of the rule of law is to file lawsuits. Resort to the courts — bring lawsuits, get injunctions stopping illegal executive orders going into place. The next step will be to challenge them [national security executive orders] and show they are not legitimate. They are arbitrary and capricious, possibly motivated by discriminatory intent. We’re going to see things being slowed down. The public outrage with pictures of family separations really touched a chord and got this president to change his mind. The thing with this president, it took him three times to get the travel ban maybe right. It’s not like they’re technicians who take the time to get things right.

Anoop Prasad: It’s very important for lawyers to bear witness. In terms of the ban, there are challenges that are still available. It’s not a complete blank check he has. [But Trump] may try and abuse his power even more, and inch toward broader and broader bans. It’s quite possible he’ll attempt to add more countries to the ban. I’d assume he would be sued again.

Copyright Capital & Main

Co-published by Fast Company

On Wednesday, June 27, Republicans’ effort to pass a comprehensive immigration reform bill went down in flames for the second time in a month, due to divisions within their own party. The Republican attempt to create a vast new guest worker program, however, has not ended.

That effort has been headed by Rep. Bob Goodlatte (R-VA), chair of the House Judiciary Committee, and is supported by many growers around the country, particularly on the West Coast. Originally Goodlatte introduced a stand-alone bill in 2017, the Agricultural Guestworker Act. Although that bill didn’t receive a vote in Congress, its main provisions were folded into a much larger, comprehensive bill Goodlatte tried to pass this spring, the Securing America’s Future Act. That bill failed by a vote of 193 to 231. Goodlatte then incorporated his guest worker provisions into the Border Security and Immigration Reform Act (H.R. 6136). That fared even worse, 121 to 301.

Nevertheless, House Speaker Paul Ryan made a promise to Congressman Dan Newhouse (R-WA), a cosponsor of H.R. 6136, that he would hold a vote on agricultural worker issues before Congress adjourns at the end of July. After noting his minority votes for the two comprehensive immigration bills, and criticizing fellow Republicans for torpedoing them, Newhouse said in a statement, “the House has yet to address the crisis facing agriculture producers who cannot find enough workers, and I will not stop advocating for improvements to create a reliable legal guest-worker system. If our nation’s farmers are to continue providing food for America and the world, it is incumbent on Congress to act to address labor needs. I thank the Speaker for committing to hold a vote on this matter in July.”

Goodlatte’s guest worker bill has not yet been reintroduced, but when it is, the contents will undoubtedly be the same as in previous iterations. The latest guest worker provisions, in the Border Security and Immigration Reform Act, are a window into what’s to come. Those provisions would create a massive new guest worker program, based on a new visa category called H-2C. This would take the place of the current H-2A visas, whose numbers have increased from 44,619 workers in U.S. fields in 2004 to 200,049 last year – a growth of about 450 percent in a little over a decade.

Critics of H-2A visas have two chief complaints: First, that workers in the program are exploited and often cheated, and second, that resident farm workers are displaced by growers who see H-2A workers as easier to control, and potentially less expensive. The proposed H-2C program would put the H-2A program on steroids, according to Bruce Goldstein, president of the Washington, DC-based farm worker advocacy group, Farmworker Justice.

“Over the last year,” Goldstein charges, “Rep. Goodlatte has made it his mission to create a massive new guest worker program of millions of captive workers who have even fewer labor rights than the current workers they would replace. His new guest worker program would convert an entire industry, from the farms and ranches to the packing houses and processing plants, from lettuce and grapes to dairy cows and poultry, into a labor force of exploitable temporary guest workers with virtually no workplace protections and with no opportunity to join the communities they are helping to feed.”

Goodlatte’s H-2C provisions might result in two million visas issued in the first two years, Farmworker Justice predicts, supplying contract labor to meatpacking and food processing, in addition to agriculture. Growers would be able to employ workers year round, and continuously from one year to the next. Current H-2A workers have to return to their home countries within a year, and can come back the following year if they receive a new contract. In either program, workers have the same vulnerability. If they fail to meet grower production demands, if they complain or organize, or if they simply get on the wrong side of a foreman, they can be fired, and must leave the country immediately.

Today each state has to calculate a wage rate for H-2A workers that, in theory, doesn’t undermine local farm worker wages. H-2C worker wages, however, would be set at 115 percent of the federal $7.50/hour minimum wage, or applicable state or local minimums. This locks in farm labor wages at the minimum-wage level, since local farm workers who demand more could be replaced with contract workers. Workers’ fear of replacement by H-2A labor is already affecting strawberry wages in Santa Maria, for instance.

Further, 10 percent of each H-2C worker’s wages would be withheld and could only be claimed by going to a U.S. embassy or consulate after returning to their country of origin. This was a feature of the old bracero program, which brought hundreds of thousands of guest workers to the U.S. from 1942 to 1965. Millions of dollars in withheld wages went missing, and braceros are still trying to recover them.

Today growers who want to recruit H-2A workers have to be certified by the Department of Labor and local unemployment offices, and show that they first tried to hire workers locally. In reality, this provision is not strongly enforced. Legal aid offices around the country have brought many cases on behalf of local workers who were either replaced or not hired to begin with. But the H-2C program would eliminate certification entirely. Growers could simply promise that they’d made a local hiring effort, and that they would obey labor laws.

The legal aid organizations that today file cases on behalf of guest workers would be barred from doing so. H-2C workers wouldn’t even be able to go to court against a grower, and would have to agree to private mandatory arbitration, a system that favors employers.

“These temporary workers have no other access to attorneys,” says Cynthia Rice, litigation director for California Rural Legal Assistance, which currently provides legal services to H-2A workers.  “They are left intentionally unaware of the state and federal enforcement agencies who could take their complaints; and those agencies are severely understaffed.  Prohibiting legal services from representing them will leave them unprotected and without anyone to recover the wages stolen from them.  It will eliminate any real threat that unscrupulous employers will be held accountable, and will create an incentive to replace local workers, who have access to legal representation, with contract workers who do not.”

Growers would no longer be required to provide housing to guest workers, or provide transportation to the job location or back home when the work is done. Today, in many parts of the country, farm workers sleep in cars or under trees because of the lack of rural housing for migrants, and rents run high for what housing is available. H-2C workers arriving from another country would simply be thrown onto this already-inadequate and expensive housing market. Growers, meanwhile, would have no responsibility.

Goodlatte’s bills have all contained heightened enforcement provisions, especially a requirement that employers use the government’s E-Verify database to identify and fire workers without papers. In his H-2C program, Goodlatte would require undocumented workers to return to their home countries, and then apply to come back to their homes in the U.S. with H-2C visas. They would have to leave their families behind, however, since his bills specifically prohibit issuing visas for family members.

According to Farmworker Justice, “Rep. Goodlatte’s [H-2C program] would harm the hundreds of thousands of U.S. workers employed in agriculture, fails to take steps to stabilize our nation’s experienced agricultural workforce, and instead creates a labor system that treats workers as commodities, with a revolving door of temporary exploitable workers.”

Many Republicans rejected their own party’s comprehensive bills because they oppose any legal status for Dreamers (young people granted temporary status under the Deferred Action for Childhood Arrivals program) and want a bill that simply erects a border wall and increases enforcement. They might, however, be willing to give agribusiness a new guest worker program because it favors employers and denies workers a permanent legal status. During the June debates other Republicans, like Jeff Denham (R-CA), stated their public support for the Dreamers. But Denham, Devin Nunes, Kevin McCarthy and David Valadao are all San Joaquin Valley Republicans, and are either growers themselves, or come from communities where growers are politically very strong. Depending on a fractured Republican Party, therefore, would not be a sure way to avoid new guest worker programs.

At the same time, some conservative Democrats have historically voiced concern over agribusiness complaints of “labor shortages” and support for guest worker programs. California Senator Dianne Feinstein, in particular, has a long record of support for guest worker programs. In a 2009 speech, after introducing a guest worker bill, she said, “There is a farm emergency in this country, and most of it is caused by the absence of farm labor.” In 2013 she introduced a bill to help legalize undocumented farm workers, but which also proposed 336,000 guest worker visas.

While Republicans debated their comprehensive bills in June, progressive Democrats introduced a measure that provides a political alternative, the Fairness for Farm Workers Act. The proposal, authored by Senator Kamala Harris (D-CA) and Rep. Raul Grijalva (D-AZ), would amend the Fair Labor Standards Act of 1938 to remove its discriminatory denial of overtime pay to agricultural workers, as well as end their exclusion from many minimum wage laws.

The bill would enact on a federal level the overtime provisions for farm workers that the California legislature passed this year, and has attracted many Democratic co-sponsors. While it stands no chance in the current Republican Congress, it may serve as a vehicle for pro-worker Democrats to call the question on their own colleagues: Is the road to improving the lives of farm workers the expansion of guest worker programs? Or is it providing the existing workforce with the same benefits enjoyed by most other workers, but denied to agricultural laborers by Congress 80 years ago?