Originally Published in The New Yorker
Sarah Stillman - February 1, 2021
Maria was sitting in her room sketching a pink hibiscus, one evening last May, when she heard footsteps coming down the hallway. A fourteen-year-old asylum seeker from Honduras, she was living at Abbott House, a child-welfare agency in Irvington-on-Hudson, New York, that cares for unaccompanied migrant children. The law required that, as a minor, Maria have the chance to be released to a cousin in Miami, but the reunion had repeatedly been delayed. For the past three months, she had spent her evenings watching Disney sitcoms and learning English-language sentences. (“The little girl tripped over the crack in the pavement.”) That night, at about 8 p.m., a staffer told her that she had a phone call from her lawyer, Hannah Flamm, who works with a nonprofit called the Door. Maria hustled to the administrator’s office, wearing her pajamas and a mask. Flamm told her, “If immigration agents come for you tonight, I want you to know that you don’t have to talk to them, O.K.?”
Flamm had just got a tip that U.S. Immigration and Customs Enforcement planned to execute a warrant for Maria’s removal, and to put her on a 3 a.m. flight to Texas, and then to Honduras. The news struck Flamm as bizarre, and likely illegal. As an unaccompanied child seeking asylum, Maria had the right to make her case to an asylum officer, and, if necessary, to get a full hearing before an immigration judge. Moreover, ice had said that most immigration raids would be placed on pause during the pandemic lockdown. Flamm couldn’t believe that agents would seek to deport a child in the middle of the night, during a global crisis, without informing her attorney or her family. She told Maria that she was on her way to Abbott House and cautioned her that she was not obliged to sign any documents until she arrived.
Maria had fled Honduras in 2019, after her father was killed, and her teen-age sister was kidnapped and tortured by gunmen, including a Honduran policeman. (Maria and her family members requested the use of pseudonyms to protect their safety.) At the southern border, Maria and her mother, Gabriela, claimed asylum, but were redirected to a new program called the Migrant Protection Protocols, and made to await their hearing in a dangerous Mexican border town. After a few months, they lost the case. Gabriela, in anguish, sent Maria back to the border on her own, hoping that, as an unaccompanied minor, she would be given protections. During the past few years, Maria, once outgoing, had become withdrawn. “It’s like she’s locked inside herself,” Gabriela told me. At Abbott House, where Maria was given a diagnosis of post-traumatic stress disorder, a therapist taught her meditation techniques, and how to differentiate among Minor Problems, Medium Problems, and Big Problems. As she walked back to her room, Maria spotted a Big Problem: an ice agent holding a manila envelope with her photograph taped to the front, and a child’s suitcase.
Guttentag developed a deep understanding of technocratic minutiae during his time in the Obama Administration. After years spent suing the federal government, he joined D.H.S., in 2014, as a senior counsellor; at the time, Obama was trying to address critics’ claims that he had become the country’s “Deporter-in-Chief.” The Republican Speaker of the House had already blocked an immigration-reform bill that the President had supported. So Obama began issuing far-reaching executive actions, and D.H.S. approved internal guidance memos, directives, and memoranda—its own dark matter. Guttentag embraced the idea as a savvy way of effecting change in light of congressional obstinance.
At the time, ice often placed transgender women seeking asylum in men’s detention facilities for months or even years, where they were subjected to rampant verbal, physical, and sexual abuse. As a result, many surrendered legitimate claims. If they were released on bond, the vast majority appeared at their immigration hearings. “We realized it was crucial to mandate the presumption of release for vulnerable categories of people, including L.G.B.T. people,” Guttentag told me. A D.H.S. team, working with ice, crafted a directive to speed the release of transgender detainees, as well as pregnant women, the elderly, and people with disabilities. One member of the team recalled meeting at D.H.S. headquarters with eight transgender women, who told “extremely wrenching” stories of abuse in detention. “That really accelerated our desire to get the directive through,” the staffer said. The directive was ready to go by the eve of the 2016 Presidential election.
On Election Night, Guttentag had planned to toast Hillary Clinton at a bar on Capitol Hill, and then to welcome her immigration-policy transition team. When Trump won, Guttentag and his colleagues raced to push through their detention reforms. The Obama Administration would be in power for another seventy-three days. “The issue was gnawing at many of us,” Carlos Guevara, a member of the D.H.S. team, recalled. “We had a new sense of urgency.” Then, Guttentag got a call from a senior ice official. “I’m sorry,” he said. “We’re not doing it.” Guttentag stressed that the memo was ready to go. “That was before,” the official said. “Now it’s different.”
In February of 2019, I travelled to El Salvador with my Columbia team, to cover the story of Camila Diaz Cordova, a twenty-nine-year-old trans woman who grew up in La Paz. When Diaz came out as trans, at seventeen, family members threatened her with violence. She fled to the capital, San Salvador, and began living with two older trans women, Monica and Virginia; they called themselves the Three Musketeers. Since 1993, more than six hundred L.G.B.T.+ people have been murdered in El Salvador, almost always with impunity, according to comcavis Trans, an activist group. In 2011, Monica was shot dead on a bus by gang members, and the police failed to investigate. Diaz endured several brutal beatings by the police. In 2015, she fled to Mexico, but, in Tapachula, she barely survived an attack by a group of men with clubs. In 2017, she sought asylum at the California border, carrying photographs from a time that gang members had broken her jaw. “That was the only card she had left to play,” Virginia told me.
Diaz was transferred to a private detention facility in Otay Mesa, California. “Please, put me on the women’s side—I’m a woman,” she told the guards. They laughed. “You’re a man,” one said. Officials took away her bra and gave her men’s boxer briefs. Paola, a trans woman who arrived in detention with Diaz, told me, “We thought in the U.S. they didn’t discriminate, but we saw the crude reality.” The pair faced daily taunts from guards and other detainees: “You’re a freak”; “You’re a sin.” Diaz was forbidden a razor, so her facial hair began to grow. “Look at your beard,” a guard said. “You really think you’re a woman?” (ice did not respond to requests for comment on Diaz’s case.)
In the cafeteria, Diaz told Paola that she was growing desperate. She went before a judge three times. In the first hearing, she asked, “How long will I need to be detained?” The judge explained that the only people who could release her in the next six months were ice officials. In a second hearing, Diaz explained her fears of returning to El Salvador. “There’s a high rate of assassinations,” she said. But she also described the pain of remaining in detention: “Lately, I’ve been feeling depressed.” At the next hearing, Diaz announced that she was withdrawing her case, and wished to leave detention. “Are you no longer afraid to return to El Salvador?” the judge asked. “I have fear,” Diaz said, but she couldn’t endure detention. “I wake up at midnight, and I’m very scared.” She preferred to be sent home. “How long will it take?” she asked.
Virginia welcomed her back to San Salvador with a white cake topped with peaches. Worried about Diaz’s depression, she took her to bathe in a local river, and cooked her favorite food, tomato salad with cilantro. As a trans woman, Diaz struggled to find legal work, so she earned a living as a sex worker. She faced constant threats from the police. On the night of January 30th, she texted Virginia to say that she feared for her life. That night, she was kidnapped by police, handcuffed, beaten, and tossed from a moving vehicle. Virginia found her in a morgue in San Salvador. A group of friends escorted her body to her home town in La Paz. “She’d been rejected by her family, but she was loved by the family she’d made,” Virginia told me.
Guttentag was shaken by Diaz’s story. “To hear the devastating consequences of detention, so starkly, for someone under circumstances we were trying to address, that’s very difficult,” he told me. Since Diaz’s death, Virginia has been living in hiding and pushing, with a group of activists, to hold Diaz’s killers accountable, while fighting for trans rights in El Salvador. Last summer, three of the police officers involved were found guilty of murder and sentenced to twenty years in prison—the first known convictions for the homicide of a transgender person in the country’s history. “Camila’s biggest dream was freedom—the freedom to be who she was,” Virginia told me. “And now she is just another name on the list.”
As the Immigration Policy Tracking Project gained momentum, Guttentag recruited law students at Stanford to join the team. Eventually, it included more than seventy students and fifteen immigration experts. Computer programmers funnelled the changes from the Trackers’ database into a sleek, password-protected Web site with an interactive time line; users could search it by date, agency, and other key details. I focussed my review on the asylum system, to which the team logged ninety-six changes.
The consequences of these changes weren’t always self-evident. Last year, the government made it more difficult for asylum seekers to obtain work permits. Jennifer Anzardo Valdes, of Americans for Immigrant Justice, in Miami, told me that, as a result, “we’re going to see young people enter into dangerous situations to survive, situations in the underground economy that subject them to labor or sex trafficking.” Other entries in the Tracker had clear stakes. In 2019, U.S. Border Patrol began having law-enforcement agents, rather than trained asylum officers, conduct “credible fear” interviews. “It’s been one thing after another,” Michael Knowles, the president of a local union that represents asylum officers, told me afterward. “Our officers’ heads are spinning. They aren’t sleeping. They come to me in tears.”
As Hannah Flamm dug into the case of Maria, the fourteen-year-old asylum seeker from Honduras, she realized how many Trump-era changes had affected the girl’s life. I tallied at least half a dozen, upon reviewing hundreds of pages of legal records. “If Maria had reached the border before Trump came to office, there’s no question she’d be an asylee today,” Flamm told me. “She’d be a high schooler with legal status. And she would never have been separated from her mother.”
Maria grew up in La Ceiba, a port city in Honduras. Her family called her Chicken Wing, for her favorite food. Her mother, Gabriela, volunteered in politics. Her father, a shopkeeper, worried that his wife’s work would provoke the ire of local criminal groups, and insisted that political recruiters leave his family alone. Gabriela later denounced the politicians, earning enemies on all sides. One December morning in 2016, Maria’s father stepped out for his morning cigar, and a gunman in a car opened fire. Maria ran outside to find her mother cradling her father on the porch, as he bled to death. Two years later, Maria’s teen-age sister, Paulina, a grocery-store clerk, was kidnapped and sexually tortured by a group of men. A Honduran police officer sat on the bed and watched. The men flashed photographs of Maria and Gabriela, threatening that they would be next. After Paulina’s escape, Gabriela knew that she had to go North with her girls. “I didn’t know what else to do to save my daughters,” she told me.
On September 15, 2019, they reached the southern border. Because Paulina was eighteen, she was sent to a detention facility and then swiftly deported to Honduras. Maria and her mother were shuttled into the Migrant Protection Protocols. The program, engineered in part by Stephen Miller, rerouted asylum seekers to makeshift camps in Mexican border cities, many of which are controlled by cartels. Maria and Gabriela went to Matamoros, where a dirt plot was crowded with tents. The State Department has ranked the security of Tamaulipas, where Matamoros is located, as comparable to that of wartime Syria, and Human Rights First has documented more than thirteen hundred incidents of rape, kidnapping, and other attacks against families waiting in the program. During Donald Trump’s Presidency, an estimated seventy thousand people were pushed into the Migrant Protection Protocols.
The camp was so crowded that some mothers slept sitting up, their children in their laps. “One Honduran woman saw us crying and offered us a spot of soil under her palm tree,” Gabriela recalled. The stranger showed her how to forage through the trash for cardboard boxes to convert into beds. At night, cartel operatives circled the camp, looking for migrants to kidnap for ransom. “The food is ready!” they shouted, pretending to be aide workers. Desperate to find a safer place to stay, Gabriela and Maria rented a cheap apartment in Matamoros, though, Gabriela told me, “the gangs sell drugs and girls there like caramels.” One evening, two men followed Maria and Gabriela to a grocery store. They hid in an aisle of boxed milk and tortillas until the men left.
After four months, Maria and Gabriela arrived, at 5 a.m., at a border checkpoint, where officials escorted them to an asylum hearing. The immigration judge, Shelly Schools, a recent Trump appointee, appeared on a video screen. She questioned Gabriela for two hours, according to a recording, then took a recess to “look at the law.” When Schools returned, she said, “If there was some legal way I could provide you protection in the United States, I certainly would try.” But granting asylum had grown more difficult. Trump’s Justice Department had aggressively used a strategy known as “self-referral” to take back cases from the Board of Immigration Appeals and issue alternative rulings. In a case called Matter of A.B., Attorney General Jeff Sessions overruled a well-established decision affirming the ability of gender-based-violence survivors and gang victims to win asylum; he deemed their suffering to be “private violence,” rarely meriting protection.
Gabriela noted that a police officer had been involved in Paulina’s assault, another detail that strengthened their case for asylum, but Trump’s Board of Immigration Appeals had narrowed this protection, too.
“Do you know if this officer was involved in sexually assaulting your daughter personally?” the judge asked.
“He was watching as she was being raped,” Gabriela replied.
“Do you know if the police officer ever touched your daughter himself?” the judge asked.
“He only watched,” Gabriela said.
The judge said that her hands were tied. “The death of your husband and the kidnapping of your daughter are certainly serious events,” Schools said. “However, the harm did not occur to either of you.” In any case, Maria and Gabriela had passed through Guatemala and Mexico on their way to the U.S. A Trump-era policy, called the “transit bar,” required them to request asylum in those countries first, making them ineligible in the U.S. “I’m very sorry for what has happened to your family,” Schools said. “I hope you can find a safe place to live.” Gabriela feared that Maria wouldn’t survive in Matamoros. One morning, at 3 a.m., she led Maria to a bridge that crosses the Rio Grande into Texas. “It’s O.K., Chicken Wing,” she said. Then Maria walked across.
When Trump issued the so-called “Muslim ban,” thousands of people raced to airports in protest, chanting, “Let them in!” and “Shame!” But after public outcry faded, the Trackers logged dozens more barriers to refugee resettlement, enacted with less fanfare. According to a former White House communications aide, Miller had once said, “I would be happy if not a single refugee foot ever again touched American soil.” The White House later said this wasn’t “the policy of the Administration.” Yet Miller nearly got his wish. In 2016, Obama approved a hundred and ten thousand yearly slots for refugees. By 2020, the Trump Administration had slashed that number to eighteen thousand, failed to fill even two-thirds of those slots, and then slashed it once more, to fifteen thousand. I spoke to more than a dozen refugees who suffered physical or sexual harm as a result of being stuck in the resettlement pipeline.
In 2018, I met Sam, a fifty-six-year-old former elementary-school teacher from Fallujah, Iraq, who became an interpreter for an Army Reserve unit stationed there in 2003. The Army had prepped Allen Vaught, the captain who commanded the unit, with a handful of lessons in Turkish instead of Arabic. He relied on Sam and four other interpreters, whom he paid five dollars a day. Sam went on raids against insurgents and uncovered a local plot to sell poisoned cigarettes to U.S. troops. “I would go anywhere, and do anything,” he told me.
Vaught was hit by an I.E.D. later that year, and sent back to the U.S., where he received a Purple Heart. When he got home, he tried to secure the safety of his interpreters, who were often targeted by insurgents for their perceived disloyalty. (Sam asked to be called by his Army nickname, for his safety.) One of the interpreters was admitted to the U.S. in 2007, and lived briefly in Vaught’s guest bedroom; he is now a U.S. citizen. Another arrived soon afterward with his family, after escaping several attempted assassinations. “Of the five translators I hired, two were executed, and we got the other two out,” Vaught told me. “That leaves Sam. He was too loyal, and he stayed too long.”
As Sam was returning from work one evening in 2004, gunmen pulled up in a car and fired at him with AK-47s. “I felt the heat of a bullet pass my ear, and I played dead,” he said. The next day, someone threw two explosives through the window of his home. He moved to Baghdad, but militiamen there threatened his life. In 2014, he fled to Cairo and wrote to Vaught, who pledged to help him and his wife and daughters resettle in the U.S. “You can have a job on my cattle ranch,” Vaught told him, adding that Sam’s wife could work at his wife’s fashion boutique. The Obama Administration had pledged to aid interpreters who’d supported U.S. troops in Iraq and Afghanistan, but, even then, the vetting process was exhaustive—fingerprints, biometric scans, interviews—and often excruciatingly slow. Finally, a month before Trump took office, Sam was contacted by the International Organization for Migration, which helps manage resettlement, telling him that he would soon be leaving for the U.S. Vaught’s wife sold T-shirts that read, “Humanity Isn’t Lost in Translation,” setting aside the profits so that Sam would have pocket money upon his arrival.
After Trump issued the Muslim ban, in 2017, temporarily halting refugee resettlement, Sam grew nervous. But in October came good news: he was told to prepare for his flight to the U.S. “This is major happiness,” he told his lawyers. Later that month, Trump issued a lesser-known order called “Resuming the United States Refugee Admissions Program with Enhanced Vetting Capabilities,” which purported to end the ban on resettlement of refugees like Sam but introduced onerous vetting requirements. “They’re still rechecking our loyalty after all this?” Sam asked. Vaught couldn’t sleep. “I’m the one who got Sam into this,” he told me. Another former officer, desperate to help Sam, researched how to “extract” a refugee from Egypt and bring him to the U.S., hoping to commission a ship for the job. (Sam had no inkling of the plot.) That November, Vaught and Sam signed on as plaintiffs in a lawsuit against Trump’s recent order, filed by the International Refugee Assistance Project. Two days before Christmas, a federal judge enjoined the order. “Sam should be wheels up soon,” Vaught announced on Facebook.
But in January, 2018, an official asked Sam to provide the address of every home where he’d lived for more than thirty days in the past ten years, and the phone number and e-mail address of every close relative. The delay, as far as Sam could tell, was now the point. That summer, Reuters reported that a special program for refugees who had helped U.S. troops or other allies had admitted only forty-eight people, with a backlog of a hundred thousand. “The extra vetting isn’t presenting any meaningful new information on security threats,” Becca Heller, the director of irap, told me. “It’s designed like an M. C. Escher drawing, a cycle you can follow forever but never complete.”
On a smoggy afternoon, in 2018, I met with Sam at a dimly lit restaurant in downtown Cairo, which a friend had said would be safe. Sam lived in fear of deportation, and rarely ventured out. Just as a waitress arrived, a uniformed Egyptian officer sat down at the table beside us. Sam leaped from his chair and whispered, “We have to go.” We rushed outside. “I haven’t left my house in a year, and now this!” he said. “I’m illegal! I’ll be deported to Iraq!” He told me that one day, earlier that year, when he went out for a loaf of bread, a car had pulled up, and two men—Egyptian police, he believes—hopped out and pulled him into the vehicle. The men interrogated him, rifled through the receipts in his wallet, stole his money and his phone, and pushed him back into the street. “I thought they’d kill me,” Sam said.
We ventured up to my hotel-room balcony overlooking the Nile, which glittered with passing party boats. Sam lit a cigarette, then pulled out a blue folder of case materials that he’d been hiding beneath his vest. It included “Achievement” certificates and photographs from his days with the U.S. military. A “loyal and valuable asset,” one letter, from an Army colonel, read. “Quick to point out dangerous areas that would jeopardize Soldiers’ lives,” another said. Sam rolled up his khaki pants to show me shrapnel embedded in his calf, from the attempt on his life in 2004. “I keep my evidence close,” he said.
As dusk fell, Sam became worried again; walking at night would be risky. He gathered the folder and stuffed it beneath his vest. “In Iraq, I was like an amulet,” he said. “I kept every soldier I worked with safe. But now my life is lived in a prison.”
Last February, I joined Guttentag and a group of new Trackers around a big wooden table at Stanford Law School. Danny Martinez, Guttentag’s research assistant, passed out Girl Scout cookies, turned off the lights, and projected the Trackers’ time line onto an enormous screen from his laptop. (His charger read, “I am my ancestors’ wildest dreams,” a nod to his family’s migration from Mexico.) On the time line, hundreds of red dots represented each Trump-era regulation that the team had logged. In some months, the dots were scattered and faint; elsewhere, they formed dense clusters. Then Martinez pulled up the master spreadsheet, which included a description of each new policy, the verbatim text of the change that had been made, tags marking the agencies and the issues involved, and a copy of whatever norms had come before it. “I know it’s dizzying,” Martinez told the new members, who squinted and leaned in close. After the presentation, one student raised her hand, and admitted, “The spreadsheet didn’t make that much sense to me.” Others laughed in agreement.
“That’s a good sign,” Guttentag said. “If it did, I’d be worried about you.” Part of the challenge of tracking the Administration’s regulatory overhaul, Guttentag explained, was the byzantine nature of the work. “We’re aggregating and distilling and organizing the public record,” he said.
The students were eager to see their work lead to political change. “Will we ultimately make this public?” another asked. Yes, Guttentag promised. “People need to see what in the world has happened.” The goal was “addressing and undoing the horrific policies that have been put into place since January, 2017.” He acknowledged that reverting to the regulations of the Obama years would be insufficient; many in the group knew that the Obama Administration had locked up asylum seekers in family detention centers, sped unaccompanied children through immigration court without attorneys, and presided over a record three million deportations. Still, he said, “we hope a reform agenda can start off where the country was before the Trump Administration came in.”
When the pandemic struck, Guttentag holed up in his home office, near Berkeley, overlooking a lemon tree, and watched to see how the Administration would respond. covid-19 arguably justified certain border restrictions. Early on, Trump issued an order known as the China Ban, which barred entry from China for most non-citizen travellers, and, soon afterward, issued similar bans for Iran and much of Europe. By mid-March, Guttentag had e-mailed several Trackers, instructing them to pay careful attention to how the Administration might use the pandemic as a pretext for anti-immigration regulations. On March 23rd, the government announced that it would postpone all hearings for asylum seekers in the Migrant Protection Protocols program, leaving thousands of families in limbo.
Three days earlier, the C.D.C. had issued an even more alarming policy, called “Order Suspending Introduction of Certain Persons from Countries Where a Communicable Disease Exists.” The order tossed out decades of congressionally mandated humanitarian protections; immigration agents were instructed to pursue immediate “expulsion,” for the sake of public health. It made little epidemiological sense: the Administration wasn’t blocking the travel of truck drivers, those commuting for educational purposes, or most citizens and legal permanent residents. The order drew on quarantine laws dating as far back as 1893, intended to prevent the spread of diseases such as smallpox and yellow fever. When Guttentag examined the history of the original laws, he found that the new regulation contradicted their intent. (In the drafting of the 1893 law, a senator from Wisconsin had argued that the word “immigrants” should be changed to “all passenger travel,” pointing out that U.S. citizens could also carry diseases. “I think it ought not to be an authority which discriminates,” he said.)
Border agents soon began using the rule to conduct clandestine “expulsions.” They held asylum seekers and undocumented border crossers in secret hotel rooms, facilitated by government contractors, and then deported them without due process. According to the A.C.L.U., the government expelled at least two hundred thousand people in this manner, including thirteen thousand unaccompanied children. In McAllen, Texas, the Texas Civil Rights Project staked out a Hampton Inn & Suites hotel where immigrant children and others were being stashed, outside normal legal protocols, and then expelled. One of the nonprofit’s attorneys, Andrew Udelsman, entered the hotel, and began to walk the halls, calling out offers of legal representation, as a colleague filmed. Three burly private contractors accosted him. “Get out, if you’re smart,” one said. Another violently shoved Udelsman into a hotel elevator. A Texas Civil Rights Project employee named Roberto Lopez photographed the hotel’s windows, where adults cradling children held handwritten messages up to the glass. “We need your help,” one read. “We don’t have a phone,” read another. The next day, the organization filed a suit, arguing that the system was “arbitrary, capricious, and contrary to law.”
On Election Night, 2020, asylum seekers and refugees around the world tuned in to the media coverage, knowing that their fates were tied to swing-state ballots. Sam, in Cairo, cooked himself a chicken, and sat glued to CNN. Gabriela, Maria’s mother, watched in Mexico. “We need a miracle,” she told me. Hannah Flamm, Maria’s lawyer, said, “If Biden can undo even a fraction of the harm this Administration has done, it will totally transform Maria’s case, and her life.” Dozens of migrants at the camp in Matamoros gathered to pray. When the press called the race, some asylum seekers chanted, “Biden! Biden! Biden!” A small crowd of migrants, including one in a Grim Reaper getup, paraded beside a wagon stuffed with a piñata-style figure of Trump, dressed, according to Valerie Gonzalez, in The Monitor, in “clothing left behind by migrants who abandoned their asylum claims under the prolonged Trump administration policies.” Serenaded by a song that went, “Fuck your mother, Donald Trump!,” they set the effigy ablaze.
The Biden Administration has already wielded its executive authority to undo some of Trump’s policies. Biden’s acting head of D.H.S., David Pekoske, paused some deportations for a hundred days, and suspended Trump-era enforcement policies, pending a closer review. (Less than a week later, the attorney general of Texas challenged the moratorium, and a judge agreed to a temporary halt.) With a Democratic Congress, Biden may have a shot at passing his immigration-reform bill. But reversing the subtler changes will take endurance, particularly amid so many other priorities. Don Moynihan, a professor of public policy at Georgetown, told me, “You basically need someone who is as knowledgeable and enthusiastic about reversing administrative burdens as Stephen Miller was about constructing them.”
Last September, Guttentag was asked to join Biden’s transition team as a volunteer adviser on immigration. Before he did, he shared a vision with his Trackers for how to use the database to help determine which policies to target first. “I think about future change in quadrants,” Guttentag had told me. “If you draw a graph”—and he began doing so, on a scrap of paper—“the x-axis is the greatest impact for the greatest number of people, and the y-axis is the level of ease, or difficulty, when it comes to making the change.” Some measures can be undone with a single, swift executive action. Others will require a drawn-out legislative battle, or a formal rule-making process. Some may have steep political costs. “We need to find the low-hanging fruit—the stuff that’s really important to change, and really easy,” he said. But he cautioned that, if you’ve never been inside an Administration, “you don’t always anticipate how hard the y-axis is.”
According to Guttentag’s Tracker, more than a hundred of Trump’s immigration policies are currently subject to litigation. Courts recently blocked the asylum ban, as well as dozens of other Trump efforts that were deemed “arbitrary and capricious.” Biden can settle many of these lawsuits. “If you reach a good settlement agreement or consent decree, it can be a really effective way to make sure that the most egregious harms don’t happen again,” Jaya Ramji-Nogales, a professor at Temple Law School, told me. In 1997, Janet Reno, Bill Clinton’s Attorney General, settled a decade-old lawsuit filed by an unaccompanied minor from El Salvador, and created the Flores settlement, in which the government agreed to swiftly release children from immigration detention and place them in “the least restrictive setting” possible. Under Obama, advocates leaned on Flores as a tool for fighting family detention, and, under Trump, it proved crucial to winning the release of children who’d been taken from their parents at the border. During the pandemic, the existence of Flores underpinned the argument that Maria, at Abbott House, should be released to her cousin while her lawyers fought her removal.
Some policies fall in the bottom right corner of Guttentag’s graph: extremely high-stakes, but difficult to unravel. During Biden’s campaign, he promised to end the Migrant Protection Protocols on his first day in office, noting that migrants in Mexican border towns face “a horrifying ecosystem of violence and exploitation.” He has now asked for time to sort out what to do. D.H.S. has announced the end of new enrollments in the program, but has not resolved what will happen to the thousands who remain stranded. Some of Biden’s advisers fear the political consequences of having thousands of asylum seekers coming into the country after Biden’s Inauguration, particularly amid the pandemic. Conservatives have warned of a “caravan” of covid-infected migrants, and nicknamed the President No Borders Biden. But a new generation of immigrants’-rights activists plan to keep the pressure on. “We need a bold and completely different direction,” Greisa Martinez Rosas, of United We Dream, told me. “We need Biden to prioritize the true safety of immigrant communities, because the forces that enabled Donald Trump to rise to power aren’t going away.”
In politics, the status quo has uncanny power. In 2008, during Obama’s first Presidential campaign, he promised to close Guantánamo Bay. On the night that he won, detainees at Guantánamo chanted, “Obama! Obama! Obama!”; defense lawyers paraded before military prosecutors in a conga line, singing, “Hey hey hey, goodbye!” Obama issued an executive order on his third day in office, calling for Guantánamo’s closure within a year. But he was soon fighting with Congress, which passed legislation that made transferring detainees to the U.S. difficult, and engaging in tense negotiations with foreign countries about their willingness to accept prisoners. Toward the end of his second term, Obama was asked, by a seventh grader, if he had any regrets. “I would have closed Guantánamo on the first day,” he said. “The path of least resistance was just to leave it open.”
Today, Guttentag hopes that the minutiae won’t be forgotten. Later this month, he will make his Tracker public. He hopes that it will provide a useful model for reversing Trump-era policies in other sectors of the government as well. At Harvard Law School, a team has created a “Regulatory Rollback Tracker,” to log the ways in which Trump eroded environmental regulations. The Leadership Conference on Civil and Human Rights has inventoried dozens of assaults on civil rights. “To undo the damage, we’ll have to keep getting deeper and deeper into the weeds,” Guttentag told me. “That’s where so much of the change still needs to happen.”
Maria, in Miami, knows that her fate depends, in part, on how quickly Biden transforms asylum policy. Noemi Samuel Del Rosario, a lawyer at Americans for Immigrant Justice, which is working with the Door to fight Maria’s removal, told me that she hopes Biden will go further than ending the Migrant Protection Protocols; he also, she said, “needs to right the wrongs for families like Maria’s, who didn’t get a fair chance to present their cases in the way they should have in the first place.” Maria’s mother, Gabriela, is in hiding. Her sister, Paulina, is on the run in Honduras. “My wish is to eat around the same table as my family,” Maria told me. She still has the sketch of the pink hibiscus flower that she drew on the night that ice came for her at Abbott House. She kept her journal from the facility, too, in which she did an exercise envisaging her life ten years in the future. She imagined herself as a lawyer, in a pink suit, fighting for immigrant kids in court. “I’m proud of all that you’ve been able to achieve,” she wrote. “I see you as a woman warrior.” ♦
This story was produced in collaboration with the Global Migration Project, at Columbia University’s Graduate School of Journalism, with contributions from Adriana Carranca, Eileen Grench, and Isabela Dias.