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Last night I received an email from Microsoft’s Office365 Message Center providing me with preparedness information for COVID-19 (Coronavirus) and guidance regarding best practices for Microsoft Teams. Well, I don’t use Microsoft Teams (and candidly I don’t even know what it is let alone know what it does), but I did take that admonition as an opportunity to think about the Coronavirus and the immigration consequences of it.
According to the Center for Disease Control, COVID-19 is a “respiratory disease caused by a novel (new) coronavirus that was first detected in China and which has now been detected [as of this writing] in 70 locations internationally, including in the United States.” On January 30, 2020, the World Health Organization declared the outbreak a “public health emergency of international concern (PHEIC)”. One day later, Health and Human Services Secretary Alex M. Azar II declared a public health emergency (PHE) for the United States.
When President Trump came into office, one of the first things his administration did, which of course was alarming at the time (and still is) was create the Travel Ban. The Travel Ban is now in its third iteration (if you’re counting). Most recently, however, the White House announced two (2) presidential proclamations, each addressing the entry to the United States of certain immigrants and nonimmigrants who pose a risk of transmitting Coronavirus.
On January 31, 2020, the President issued Proclamation 9984, which suspends and limits entry into the United States, as immigrants or nonimmigrants, of all individuals who were physically present within the People’s Republic of China, not including Hong Kong and Macau, during the 14-day period preceding their entry or attempted entry. On March 4, 2020, the President issued a second proclamation (Proclamation 9992) that, with few exceptions, suspends and limits entry into the United States, as immigrants or nonimmigrants, persons who were physically present in the Islamic Republic of Iran during the 14-day period preceding their entry or attempted entry. My sense is there will be more.
The scope of both proclamations are actually broader than their titles would suggest. For example, under the President’s January 31, 2020 proclamation, U.S. citizens who traveled from the Hubei province in China within 14 days of arriving to the United States will also be subject to up to 14 days of mandatory quarantine. In addition, U.S. citizens returning to the United States who had visited other parts of China, outside of Hong Kong, Macau, and the Hubei province, will be subject to monitoring at certain ports of entry, and potentially self-quarantined at home.
Importantly, from an immigration perspective, the President’s first proclamation also states that it does not affect an individual’s eligibility to apply for political asylum, or other relief, including withholding of removal, or protection under the United National Convention Against Torture (CAT). The proclamation also does not apply to U.S. citizens or lawful permanent residents (i.e., Green Card holders).
Earlier this week, there was an article in the Albany Times Union indicating concern by the Lake George, New York hospitality sector that hotels, restaurants and other businesses were not going to be able to fill a thousand or more necessary jobs that are typically filled by foreign students who participate in the J-1 Exchange Visitor Summer Work Travel Program. Related to this, the Department of State’s Office of Academic Exchanges (which is the office that administers the J-1 Exchange Visitor Visa Program) provided information for exchange visitors currently in the United States whose travel may be affected by COVID-19. Specifically, the Department of State indicated that U.S. Citizen and Immigration Services (“USCIS”) could exercise its discretion to extend or change the status of foreign nationals in the United States who are in J-1 exchange visitor status, and in some cases provide student work authorization, for those individuals who cannot depart the United States because of what’s going on in their home country.
And finally, on March 3, 2020, USCIS confirmed that, out of an abundance of caution, it temporarily closed its Seattle Field Office after one of its employees exhibiting flu-like symptoms confirmed having been potentially exposed to COVID-19.
So, clearly events are very fluid, both from a medical perspective (which this article is not about) and otherwise. COVID-19 is having far-reaching impacts, including in my little piece of the world. This article is not about whether the President or his Administration’s response has been appropriate, timely or otherwise. It is meant simply to be factual and to provide timely guidance for those who may be impacted.
 Indeed, in addition to U.S. Citizens and lawful permanent residents, the Proclamation does not apply to: (a) spouses of a U.S. citizen or lawful permanent resident; (b) parents or legal guardians of a U.S. citizen or lawful permanent resident, provided that the U.S. citizen or lawful permanent resident is unmarried and under the age of 21; (c) siblings of a U.S. citizen or lawful permanent resident, provided that both are unmarried and under the age of 21; (d) children, foster children, or wards of a U.S. citizen or lawful permanent resident, or prospective adoptees seeking to enter the United States pursuant to the IR-4 or IH-4 visa classifications; (e) foreign nationals traveling to the United States at the invitation of the United States Government for a purpose related to containment or mitigation of the virus; (f) nonimmigrants under section 101(a)(15)(C) or (D) of the Immigration and Nationality Act (8 USC 1101(a)(15)(C) or (D)), as a crewmember or any alien otherwise traveling to the United States as air or sea crew; (g) nonimmigrants on an visas related to foreign government officials or the immediate family member of an official), (h) foreign nationals whose entry would not pose a significant risk of introducing, transmitting, or spreading the virus, as determined by the CDC Director, or his designee; (i) foreign nationals whose entry would further important United States law enforcement objectives, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees based on a recommendation of the Attorney General or his designee; or (j) foreign nationals whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their designees.
Although it feels like it’s never stopped, election season is now officially in full swing. I’ve spent the last three years whinging about our current president’s immigration policies. My feelings are no doubt clear. But where do his challengers stand on important issues like the right to counsel, the travel ban (which is now in version 3.0), legalization, and so on. What follows is the beginning of a periodic look at the Democratic candidates on these and other important issues. Let’s start with the right to counsel.
Our immigration laws are very complex. If you’re not an attorney, or if you’re an attorney but don’t practice in the area of immigration, you might be surprised to see the back-and-forth that immigration practitioners themselves engage in on various professional listservs about the meaning of a statute, rule or agency memorandum. If we as practitioners in our own specialized field often cannot understand or come to agreement as to what the Congress has written, or a Court has decided, do we really expect a pro se respondent to?
The law guarantees an individual facing removal from the United States with the right to counsel. The law does not, however, guarantee that legal counsel be paid for by the government if someone cannot afford it. The data is very clear that having legal counsel is the most decisive factor in determining whether someone will obtain a grant of legal relief before an Immigration Judge. Indeed even Immigration judges say that cases before them are resolved far more expeditiously when people are represented by counsel.
Yet only a small fraction of those who are in removal proceedings are represented by an attorney. My personal opinion is the government should establish a right to legal counsel, paid for by the government when necessary, to all people facing removal. So that’s my opinion; what do the candidates believe?
When he was mayor of New York City, Mike Bloomberg pledged $2 million to provide training for lawyers who wish to represent immigrants in immigration court. Thus far, however, he has not publicly stated whether or not he supports the right to counsel at government expense at a national level. In a piece written in 2017 for his media company, he wrote that “speedier case handling must also make a provision for the adequate legal representation that judges have called for.” He’s right.
In 2019, Senator Amy Klobuchar cosponsored S. 2113, the Stop Cruelty to Migrant Children Act, which would mandate that the Department of Homeland Security (“DHS”) provide access to counsel for all people detained in facilities administered by Immigration & Customs Enforcement (“ICE”), Customs and Border Protection (“CBP”) and Health and Human Services (“HHS”).
In a response to a survey put out by the American Immigration Lawyers Association (“AILA”), Mayor Pete Buttigieg stated that he would “urge Congress to pledge funds and to work with legal service providers and state and local governments to create a system to substantiate this guarantee, building off of the success of programs like the New York Immigrant Family Unity Project.”
In response to the same AILA survey, Senator Bernie Sanders stated the following:
Currently, our immigration adjudication system is so broken that immigrants often do not receive notice of their hearings, notices are received in a language the recipients do not speak, and immigrants are sometimes even marked absent for hearings that did not even physically take place. Navigating the immigration system without legal counsel is next to impossible. To ensure that people can actually access their legal counsel, Bernie will adopt community-based alternatives to detention. When Bernie is in the White House, immigrants will have access to counsel, as well as other supportive services as they wait for their hearings.
His immigration platform, available on his website, goes further; it states that he will “ensure justice and due process for immigrants, including the right to counsel and an end to cash bail, create a $14 billion federal grant program for indigent defense, ensure access to translation and interpretation services throughout every stage of the legal process,” and “end the use of video conferencing for immigration cases.”
Interestingly, to me anyway, former Vice President Joe Biden has no public stated position on access to counsel for those in removal proceedings.
And finally, to round out the discussion, not only does President Trump oppose access to counsel in removal proceedings, his administration’s policies have made simple access to counsel so much more difficult. By way of example, his administration’s Remain in Mexico policy has made it incredibly difficult for asylum seekers to obtain information about legal service providers and, for those who have counsel, to meet with and have access to their counsel.
Providing meaningful access to counsel not only ensures that immigrants are treated fairly and appropriately in removal proceedings, but it will also makes their removal proceedings more efficient. Indeed, if more individuals are represented in removal proceedings, the currently untenable backlogs would be reduced as well.
The landmark case Gideon v. Wainwright required state courts to provide counsel in criminal cases for defendants who could not afford lawyers. Unfortunately, the immigration law, unlike criminal law, does not provide a right to counsel. While immigrant detainees are allowed to hire their own lawyers, more often than not, they cannot afford counsel. Those who cannot are often the most vulnerable in our population, including children, the mentally disabled, victims of sex trafficking, refugees, and even torture survivors. We can do better, and we should provide those who need free representation the most the right to receive it.
 See, e.g., “Access to Counsel in Immigration Court,” American Immigration Counsel, Ingrid Eagly, Esq. and Steven Shafer, Esq., Special Report, September 2016.
 AILA Doc. No. 19093005. (Posted 9/30/19)
 AILA Doc. No. 19093005. (Posted 9/30/19)
Readers of this space know that the practice of immigration law has always presented my colleagues and I with unique and interesting challenges. Over the last three years, however, I would describe most of the challenges practitioners encounter as completely unnecessary. Let me give you an example.
A prospective client walks through my door, tells me her story, and to keep it short and simple, I determine that she’s out of status, has a prior removal order, but if those things weren’t true, she would be able to stay in the United States because she has some other relief that could be available to her (e.g., she originally had a lawful entry and she’s married to a U.S. citizen), but for the previously stated adverse factors.
Generally our advice to this individual might be, let’s get the paperwork prepared and filed for the “relief” that we think you’re eligible for with, e.g., U.S. Citizenship and Immigration Services (“USCIS”) (but for the adverse factors), and then let’s go to the Immigration Court, ask the Immigration Judge (“IJ”) to reopen her prior removal order (for whatever reasons we can come up with, including, possibly, the fact that our prospective client has relief available to her, again but for the adverse factors), and assuming the IJ did reopen the case, then ask the IJ for a continuance (and to place our client’s matter on the Court’s “status docket”) in the Immigration Court proceeding so we can wait for what we think will be a favorable decision by USCIS.
Yesterday (as I write this, it was just yesterday), that last part became unnecessarily more difficult. In a decision by the Board of Immigration Appeals (“BIA”) issued on January 22, 2020, the BIA held as follows:
In assessing whether to grant an alien’s request for a continuance regarding an application for collateral relief, the alien’s prima facie eligibility for relief and whether it will materially affect the outcome of proceedings are not dispositive, especially where other factors—including the uncertainty as to when the relief will be approved or become available—weigh against granting a continuance.”
Matter of Mayen, 27 I&N Dec. 755 (BIA 2020) (Emphasis added.)
This impacts foreign nationals in many kinds of situations. The example I gave is just one. Here’s another, and no doubt more compelling. Sadly sometimes the prospective client that shows up at your office has been the victim of a crime, such that this individual might be eligible for a “U” nonimmigrant visa. U visas provide temporary and sometimes permanent legal status to victims of an enumerated list of “qualifying criminal activities” who have suffered substantial physical or mental abuse, and possess information concerning that crime, and who have been, are being, or are likely to be helpful to law enforcement or government officials.
There are many “qualifying criminal activities” including domestic violence and sexual assault. Here’s the problem. Let’s say my prospective client has a very compelling case to receive a U visa. The problem is the adjudication backlog at USCIS. Right now, the time that it takes for USCIS to process U petitions is more than 4 years, and that assumes that USCIS simply approves (or denies I suppose) your client’s petition. If USCIS sends you a Request for Evidence (“RFE”), which can often be the case, the adjudication time will be substantially longer.
So, back to my prospective client. The quick reaction and consensus of my colleagues and I will be that some or many IJ’s will use the BIA’s decision in Matter of Mayen as a means to unclog their docket. Attorneys will then be forced to unnecessarily appeal adverse decisions of these IJ’s to the BIA, the BIA will likely affirm the IJ’s decision, and then our clients will be forced to appeal further to a U.S. Circuit Court of Appeals and, depending on where the client resides, hopefully get a favorable decision. This is all just so unnecessary.
We can debate, and meaningfully debate at that, all day long as to whether Democrats or Republicans have better policies as it relates to immigration and even immigration reform. What we’re talking about here, though, is about being practical and being fair. IJ’s have the ability to meaningfully assess whether a respondent before them has a prima facie right to obtain relief before USCIS so he or she can lawfully remain here. Assuming this is true, what difference will it make then to the Court if a respondent’s case is put on a separate status docket and the Court checks in with that respondent “periodically” to see how their case with, e.g., USCIS is going? In my view, it makes (or should make) no difference.
Practicing immigration law is very rewarding. And of course it’s challenging too. All fields of law have their challenges. That’s alright. What’s not alright, however, is creating obstacles to lawyers and litigants that are truly unnecessary (and unfair). Let’s solve the underlying problem through meaningful immigration reform. Let’s not punish individuals who would have (more) rights in the United States “but for” delays at USCIS that are not of their own creation. Seems fair to me.
I recently sat for an interview with a reporter who is doing a series of articles on changes in immigration policies with a specific focus on our immigration court system. As I was speaking with this person, our conversation veered outside that lane, and we started talking about changes in immigration policy more broadly. We’ve seen a lot over the past year, but since Donald Trump became our president, the changes in U.S. immigration policy, whether planned or otherwise, have been dramatic. It’s probably not surprising when you have someone like Stephen Miller being the puppeteer for the marionettes.
Some have called it the “invisible wall.” The what? Yes, the invisible wall. While the President has been very public about his desire to construct a physical wall on our Southern border, slowly but surely, he and his minions are quietly and deliberately restricting and slowing the pace of legal immigration by building an “invisible wall.” We’ve seen travel bans, extreme vetting directives, the slowing or stopping of the admission of foreign workers and entrepreneurs into the United States, the ending or reduction of programs for vulnerable populations, and, most recently, obstacles to the naturalization of foreign-born soldiers in the U.S. military.
The most significant change has been processing delays at U.S. Citizenship and Immigration Services (“USCIS”). Most readers of this article are familiar with the H-1B nonimmigrant visa program which, for many employers, requires a petition to be filed on or about April 1 each year for a employment start date of October 1 of the same year. Well, I recently had a case for a client where we filed their petition on April 1, 2018, and their petition was “finally” approved in November, 2019. That’s a year and a half. I will grant you that this is an extreme example, but the point remains. Case processing delays and applications backlogs at USCIS are out of control. These unprecedented processing delays affect individuals, families, and American businesses throughout the nation.
Most of my personal practice involves employment and business-related immigration. I work with employers to facilitate their access to talent in what is now a very tight job market. I work with companies that are on the cutting edge of science; colleges and universities who are educating our future entrepreneurs and investors; and health care professionals in rural areas that supply health care to underserved communities. Processing delays and case unpredictability does not help businesses in my community and beyond solve their very real staffing needs and challenges.
In April, 2019, USCIS responded to a February 2019 letter sent by 86 Members of the House of Representatives who had expressed concern (and demanded accountability) about USCIS’s processing delays. In its response, USCIS revealed that in Fiscal Year (“FY”) 2018, the agency’s “gross backlog”, that is, its overall volume of delayed applications and petitions, reached 5,691,839 cases. That number is staggering, and according to USCIS, marks a 29 percent increase since FY2016 and a 69 percent increase since FY2014. What’s more, this backlog rose from FY2017 to FY2018 despite a substantial decline in application rates and an increase in its budget during that period. That’s right, USCIS had more resources with which to process fewer new cases, yet its gross backlog still grew. I’m sorry, what?
According to a recent article in the Washington Post, there an estimated 800,000 foreign nationals who are working legally in the United States who are also waiting for a green card. Most of those in the queue are Indian nationals. According to the article, an Indian national who applies for a green card today could expect to wait up to 50 years to receive it.
What about citizenship applications? Since 2016, the processing time for citizenship applications has almost doubled, increasing from about 5 ½ months to over 10 months as of March 31, 2019.
Lawyers are now more than ever taking matters into their own hands. While it used to be the case that lawyers waited to sue the government until a client’s application or petition was denied, or perhaps waited until a case was “outside normal processing times” to sue, but processing times are so out of whack immigration attorneys have no choice but to sue.
It’s difficult enough explaining the ins and outs of our immigration system and processes to clients. Tack on the substantial costs involved in pursuing some immigration benefits (without the prospect of litigation to simply move the case along), and top it off with significant delays, and you can see why many in Congress and the media have called the delays we’re experiencing as being at crisis levels. These delays and backlogs have real impacts on individuals, families and businesses. It impacts our overall economic growth. We deserve better.
As we usher out 2019 and bring in a new year (and a new decade), let’s resolve to pass meaningful and comprehensive immigration reform, be a lot more compassionate to those of our southern neighbors who are fleeing their home countries in search of a better and safe life, and work a little harder to poke some holes and even knock down that invisible wall that’s been erected over the past three years.
 “Historical National Average Processing Time for All USCIS Offices,” USCIS, March 2019, https://egov.uscis.gov/processing-times/historic-pt.
I don’t know who Rep. Salud Carbajal (D-CA) is, but the quote that was attributed to him recently in the wake of the 40 or so members of the House of Representatives introducing bipartisan legislation that would allow thousands of undocumented farm workers with a path to legal status in exchange for farms’ mandatory participation in a system to verify employee immigration status, was spot on (i.e., “This is a big freaking deal”)!
Of course, it’s not a panacea, but it is for sure a step in the right direction. At its top line, the , introduced by Rep. Zoe Lofgren (D-CA) and some 40 plus of her Republican and Democratic colleagues, expands both permanent and temporary immigration for agricultural purposes, and, very importantly, legalizes illegal farmworkers already present in the United States. Most pundits expect that it will pass the House of Representatives by a broad bipartisan margin, perhaps before Thanksgiving. Of course, I have no idea what will happen once it hits the Senate.
What exactly am I talking about? The H-2A nonimmigrant visa is available to foreign workers who are seeking to enter the United States to perform agricultural labor or agricultural services of a temporary or seasonal nature. Agricultural is defined to include farming in all its branches (including dairy farms), the raising of livestock, and any practices (including forestry and lumbering) incident to or in conjunction with farming operations, including preparation for market and delivery to storage or to carriers for transportation. Although the definition of farm includes dairy farms, the current H-2A nonimmigrant visa program only allows employers to hire workers for “temporary or seasonal” services, and dairies end up being disqualified because they need assistance throughout the entire year.
I can’t tell you how many referrals I get from colleagues, or calls from potential clients, practically begging me to help them bring in foreign workers (and yes, in some cases, to figure out a way to “legalize” individuals that may be currently working for them) so they can work in jobs that … wait for it … American workers don’t want to do (e.g., getting up at 3:00 in the morning to milk a cow). According to the U.S. Department of Agriculture, New York farms employ about 55,000 people; nationally, half of agricultural workers are believed to be undocumented.
Unfortunately, the proposed legislation maintains and incorporates into the law the current and overly bureaucratic regulatory structure of the existing H-2A program, and it also mandates what some argue is a flawed and ineffective E-Verify employment verification system. But I repeat, it’s a start and importantly, it’s a bipartisan effort in a time when such efforts seem very few and very far between,
So, what would this legislation do?
- It would increase the number of “green cards” for permanent agricultural workers. Specifically, it would create 40,000 new green cards for agricultural workers; it would allow H-2A nonimmigrant workers to be sponsored for green cards; after ten (10) years, it would allow H-2A workers to apply directly without the new of an employer to sponsor them; and it would allow for indefinite extensions of H-2A nonimmigrant status for those waiting for a green card (where there may be a backlog in their immigrant category).
- It also would somewhat improve the current H-2A nonimmigrant visa program. Specifically, it would freeze the minimum wage in 2020, prohibit increases in the middle of contracts, and limit annual wage increases to no more than 3.25 percent; after 2030, it would mandate the creation of a new minimum wage calculation; it would create a single online portal for H-2A employers to file job orders, labor certifications, and H-2A petitions; it would provide a longer grace period for H-2A workers to find another employer; it would create a pilot program for “portable” H-2A workers; it would reduce what is known as the 50 percent rule to 33 percent of the job period (currently, H-2A regulations require employers to hire U.S. workers who apply through 50 percent of the contract period—in other words, even after the H-2A workers arrive and begin working); and it would extend the H-2A visa validity period from 1 to 3 years.
- It also would legalize existing farmworkers. Specifically, it would provide a renewable legal status to illegal farmworkers with 180 days if proven farm worker experience; it would provide a renewable legal status to spouses and minor children of those same legalized farmworkers; it would provide permanent status to a worker that has ten (10) years of experience on U.S. farms prior to the enactment of the bill; and it would provide H-2A nonimmigrant status for other illegal workers.
The H-2A visa program, like its H-2B cousin for non-agricultural temporary workers, is an absolute necessity for U.S. employers across so many agricultural industries. Simply put, U.S. workers do not wish to perform the jobs that H-2A nonimmigrants fill. It has been a problem for longer than I’ve been practicing law. In an era where Congress can fairly be described as dysfunctional, the introduction of this important legislation provides a glimmer of hope to those employers.
 20 CFR §655.103(c).
There’s been no shortage of things to write about over the past two-and-a-half years, either substantively or otherwise. The Trump Administration’s (or Stephen Miller’s) decision to change the “public charge” rule ranks up there as one of the most important things that I’ve had an opportunity to address. Assuming no litigation to stop the change, the proposed change to the “public charge” rule will dramatically expand the number of immigrants that the Department of Homeland Security (DHS) could deem ineligible for lawful permanent residence (i.e., for Green Cards) or admission to the United States on account of income level and prior use of certain public benefits.
As often is the case in these articles, a little context is in order.
Under the Immigration and Nationality Act (INA), an individual may be denied admission into the United States or denied the ability to become a Green Card holder if he or she is “likely at any time to become a public charge.” An individual who has previously been admitted to the United States may also be subject to removal / deportation from the United States based on a separate public charge ground of deportability. There are certain exemptions to these provisions (e.g., for refugees and asylees).
DHS and the Department of State (DOS) are the agencies that implement the INA’s public charge provisions. DHS addresses whether to make a public charge determination when an individual applies to become a Green Card holder in the United States. DOS, on the other hand, makes its own public charge determination when its consular officers review applications for immigrant visas (the document that allows an individual to enter the United States as an LPR).
Although the INA does not itself define what the term “public charge” means, DHS guidance has defined it to mean a person who is or is likely to become “primarily dependent” on “public cash assistance for income maintenance” or “institutionaliz[ed] for long-term care at government expense.” Historically, in determining whether an individual meets the definition for public charge inadmissibility, a number of factors must have been considered, including age, health, family status, assets, resources, financial status, education, and skills. No single factor will determine whether an individual is a public charge. Also important in the consideration is whether the petitioner who, e.g., sponsored his or her qualifying family member, submitted a sufficient “affidavit of support”.
On August 14, 2019, DHS published a final rule governing the INA’s public charge grounds of inadmissibility. It goes effect on October 15, 2019. If not prevented from going into effect, the rule will have a chilling effect on families throughout the country who choose to forgo essential services to avoid imperiling their immigration status. (Candidly, the very announcement of the new rule has already had this chilling effect.)
The new rule dramatically changes the standard by which DHS determines whether an applicant for a Green Card or admission to the United States is “likely at any time to become a public charge.” Under the new rule,DHS removes the consideration of whether an individual is primarily dependent on public benefits, and now redefines public charge as a noncitizen who receives a specified public benefit for more than 12 months in the aggregate within any 36-month period. This rule will severely punish individuals for seeking basic needs and will no doubt put families at risk of separation.
As alluded to earlier, under current law, a petitioner (e.g., family member) for someone applying for a Green Card or admission as an immigrant is typically required to file an “affidavit of support”, which wasn’t always outcome-determinative as to whether an individual would likely at any time in the future become a public charge, but was very helpful in swaying that determination in favor of the applicant. Not so any longer under the new rule. Under the new rule, DHS adjudicators will apply a complex totality of circumstances test that weighs the individual’s age, health, family status, education and skills, and assets, resources, and financial status, all while taking into account a broad range of positive and negative factors. DHS has also indicated in the final rule that it interprets “likely at any time” to mean that it is “more likely than not” that the individual at any time in the future will receive one or more public benefits defined by the rule.
There are many consequences to this new rule. The new rule is far more restrictive than current policy, and no doubt will result in higher denial rates for those applying for Green Cards that are subject to public charge determinations. Moreover, the new multi-factor test will leave too much discretion to DHS adjudicators and likely will also produce inconsistent and unpredictable decisions.
As bad as all that is, and it’s bad, more importantly the announcement of the new rule, and its implementation, has created and will now exacerbate a chilling effect felt throughout immigrant communities. According to the Urban Institute, about 14% of adults in immigrants families indicated that they or a family member opted not to participate in a non-cash public benefit program in 2018 because of their concern over jeopardizing their green card eligibility. Again, this new rule will punish individuals for seeking very basic needs.
This new rule is yet another brick in what has come to be known as Trump’s (or dare I again say Stephen Miller’s) “invisible wall”, which has been nothing more than far-reaching policies and practices restricting legal immigration to and in the United States. Enough is enough.
INA §212(a)(4); 8 U.S.C. §1182(a)(4)(A).
See“Field Guidance on Deportability and Inadmissibility on Public Charge Grounds,” 64 FR 28689 (May 26, 1999).
An exception to this would be the lack of an “affidavit of support,” if one is required for an individual to become an LPR or to be admitted to the United States.
Seee.g., 8 U.S.C. §1183a.
8 C.F.R. §212.21(a).
The new rule defines a public benefit as (1) Any federal, state, local, or tribal cash assistance for income maintenance, including: (a) Supplemental Security Income (SSI), 42 U.S.C. 1381 et seq.; (b) Temporary Assistance for Needy Families (TANF), 42 U.S.C. 601 et seq.; (c) Federal, state, or local cash benefits programs for income maintenance (often called “General Assistance” in the State context, but which also exist under other names); (2) Supplemental Nutrition Assistance Program (SNAP), 7 U.S.C. 2011 to 2036c; (3) Section 8 Housing Assistance under the Housing Choice Voucher Program as administered by HUD under 42 U.S.C. 1437f; (4) Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation) under Section 8 of the U.S. Housing Act of 1937 (42 U.S.C. 1437f); (5) Medicaid, with certain exceptions, such as benefits received by individuals under the age of 21 and pregnant women (or for a period of 60 days after the last day of pregnancy); and (6)
Public housing under section 9 of the U.S. Housing Act of 1937.
The other day, I saw the following headline on the NBC news site: Rep. Steve King: I drank from the toilet-fountain hybrid at border facility and it was ‘pretty good’. The article describes Rep. King’s recent visit to a migrant detention center where he explains that he “went into that cell where it was reported that they were advised they had to drink out of the toilet” and that drink was “pretty good.”
I’m sorry, what?
I’ve worked in this field, either as a lawyer or an advocate, for over 30 years now. Immigration has always been a hot topic, but never the proverbial third rail of politics as it is today (and has been for about the last three years). When I read the article, I thought it would be interesting (but ultimately found it to be rather sad) to take a sampling of other immigration-related articles that have been in the news cycle over the last month or so. Here a just a few:
- Many Moms Say Kid’s Health Worsened in Immigration Custody. According to the New York Times, a Dilley Pro Bono Project study found mothers who were detained this past summer reported that the health of their children worsened in custody, including bouts of fever, vomiting and diarrhea.
- Pentagon Details Programs Targeted for Cuts to Fund Border Wall. The Wall Street Journalreports that the Trump administration plans on diverting $3.6 billion from military-construction projects in 23 states, 3 U.S. territories and at least 19 countries to build or fortify portions of the President’s wall along the U.S.-Mexico border. Recall, of course, that the President has told us countless times that the wall would be paid for by Mexico.
- Chief of U.S. asylum office reassigned as White House pushes for tighter immigration controls.According to the Washington Post, in what appears to be a demotion, the head of the asylum office at U.S. Citizenship and Immigration Services (“USCIS”) is being removed from his job and reassigned, “a move that follows multiple White House-directed attempts to raise new barriers to those seeking humanitarian refuge in the United States.”
As I write this article, the articles above are just from the day before. Here are a couple more from August.
- Trump Administration to Divert Hurricane Relief Funds for Border Detention. Just days before Hurricane Dorian devastated the Bahamas, and was on track to impact coastal areas of the United States (although not Alabama), The Wall Street Journalreported that the Trump administration planned on using $271 million of Department of Homeland Security (“DHS”) appropriated funds, including some funds designated to help hurricane-stricken areas, to detain and remove immigrants who unlawfully cross the southern U.S. border.
- Fed Up With Immigration Backlog, Lawyers Head to the Courts. As a result of what I can only say feels like unprecedented backlogs and delays, Bloomberg reports that attorneys are turning to the federal courts in an effort to “unclog” massive immigration application backlogs, some lasting up to seven years for simple applications.
There are so many more. The new “public charge” rule,the immigration raids in Mississippi and the countless kids left parentless as a result of them, and so on and so on.
What have we become? Who have we become? The bad news seems endless, and with it, we see almost daily dramatic changes in DHS policy under the Trump administration which have and continue to undermine our legal immigration system that the agencies that were created to facilitate.
There are processing delays, changes impacting students and scholars, changes in the “public charge” ground of inadmissibility, not to mention the ever-present issue that U.S. employers undergo annually to hire coveted H-1B, H-2B or H-2A nonimmigrant workers.
We need to hold DHS and the President accountable for the hardship they are creating to families, vulnerable populations, and U.S. businesses around our great country. The public deserves no less.
I will be addressing this very critical change in a separate article.
As I write this article, we’re now into September, the end of summer is here, and my kids are heading back to school. One of my sisters-in-law is an elementary school teacher in the area, and invariably when we gather at family events, she tells me that her best and hardest working students are those from other countries. She also tells me that those kids’ parents support their kids and their education in ways she does not see with their U.S. citizen counterparts. As she states it, it just seems to mean more to them.
This always makes me think about immigration and education in America. There are so many ways to approach this. From elementary school through college and beyond, foreign students and their parents face a myriad of challenges, including simply attaining their educational goals, including accessing college.
All children, regardless of their immigration status, have a constitutional right to attend our nation’s public schools from kindergarten through high school. While a quality education can provide low-income Americans and immigrants with a path out of poverty, the challenges confronted by students who are not proficient in the English language create additional hurdles for immigrant students. Yet, as my sister-in-law always notes, they and their families work very hard to succeed. And this success can be measured.
During the Trump presidency, we’re becoming numb to the inflammatory rhetoric about immigrants, and it seems that the President’s focus for the 2020 elections will not be on traditional kitchen table issues, but rather divisive and misleading statements about America’s borders, asylum seekers, and the like. The undertone of all this is that some how immigrants pose both a physical and economic threat to native-born Americans. Nothing could be further from the truth.
Here are some facts:
- According to the Brookings Institution, children of immigrants tend to attain educational outcomes that are like those of native-born Americans, but with higher rates of college and postgraduate attainment (i.e., they are more likely to be highly educated).
- According to the Cato Institute, 43% of all recently-arrived immigrants are college graduates, compared to 29% of native-born Americans.
Fast-forward to what happens after these kids get out of college:
- A June, 2011 report from Partnership for a New American Economy states that 40% of Fortune 500 companies were founded by immigrants and their children, employing over 10 million people worldwide.
According to Inc., immigrants launch 20% of U.S. businesses despite being only 13% of the population.
There’s no shortage of data on the positive impact of immigration on our economy. And an argument can be made that it all starts with a quality education. While the federal government imposes significant restrictions on foreign students who wish to come to the United States to study (e.g., they most show that they have sufficient funds to cover all their expenses during their anticipated course of study), many states, including New York, are now becoming more progressive in enacting tuition equity laws for those foreign nationals already present in the United States.
Generally, these laws permit certain students who have attended and graduated from secondary schools in their state to pay the same tuition as their “in-state” classmates at their state’s public institutions of higher education, regardless of their immigration status. Some states, New York again also included, offer financial assistance to students who meet certain criteria, regardless of their immigration status.
These laws are being enacted to help young people (like Dreamers), who were brought to the United States by their parents, through no fault of their own, who have worked hard in school with the hope of going to college and often discover that they face obstacles preventing them from doing so, again not of their own making.
And, playing it forward from what my sister-in-law tells me, the students (and their parents) who benefit from these policies tend to be very goal-oriented, with very high academic standing. Why in the world would we want to hinder their academic success when the resulting benefits of their education are so positive for America? Among other things, immigration makes America great … and always has.
Plyler v. Doe, 457 U.S. 202 (1982).
As I write this article, the Saratoga thoroughbred racing season is just days away from its opening day. The trainers, veterinarians, farriers and jockeys can all be seen milling around the barns and training track. Downtown, the community is buzzing with visitors from all over the world, and the restaurants and other hospitality-based businesses are filled to capacity.
Meanwhile, in Washington, D.C., our president is planning large-scale enforcement actions and raids, apparently in ten major cities across the country. Media outlets are reporting that the raids will take place in Atlanta, Baltimore, Chicago, Denver, Houston, Los Angeles, Miami, New Orleans, New York City, and San Francisco.
Although not a major city (size-wise anyway), the President’s proposed actions have people and businesses worried in my own hometown of Saratoga Springs. Unfortunately, it is now common to see U.S. Immigration and Customs Enforcement (“ICE”) conducting enforcement actions in our community. It started in earnest in the Spring of 2017, and it continues today. It is having a real impact on service-industry businesses. This time of year, it also impacts the race track’s back stretch workers.
The back stretch workers are absolutely essential to the horse racing industry. They do all of the little things to make our track experience enjoyable (and candidly they perform jobs that most U.S. workers don’t want to do.). A great many of these workers are foreign workers. And although most of these workers are here lawfully, certainly some are not. Likewise, in our restaurants and hotels, many of the back-of-the-house workers that you rarely if ever see are also foreign workers. And yes, I am sure some of them are not here lawfully.
President Trump’s enforcement actions and raids are happening amid a very tight labor market nationally. Saratoga Springs is fortunate to have very low unemployment. But with that comes issues associated with hiring and retaining enough workers to fill year-round labor needs, including the bump that employers need during track season.
Some reports suggest that President Trump’s immigration raids will focus on migrant family units with final orders of removal. Other reports have indicated that targeted individuals will be minors who came into the U.S. without their parents and have since turned 18, individuals who were ordered removed in absentia, and individuals who missed a court hearing and did not thereafter respond to letters mailed to their homes by the Department of Justice. The common theme seems to be the mass round-ups of vulnerable families from Central America who have fled to the United States to seek asylum and have since been ordered removed.
In this era of enforcement actions and raids, it is critically important that we remember that every person living in the United States, including those individuals who are undocumented immigrants or otherwise here unlawfully, have certain rights under our Constitution, whether they be in public, in their workplace, or in their home.
If you know someone who is undocumented or otherwise present in the United States unlawfully, and an ICE officer stops them on the street or in a public place, they have rights. First, they have the right to remain silent. They do not need to speak to the immigration officers or answer any of their questions. Second, they may refuse a search. If they are stopped for questioning but are not arrested, they do not need to consent to a search of themselves or their belongings. (An officer may “pat down” an individual’s clothes, however, if he or she suspects an individual has a weapon.) Finally, every individual has the right to speak to a lawyer. If an individual is detained or taken into custody, then he or she has the right to immediately contact a lawyer.
If an individual is in their home, and an ICE officer knocks on their door, in addition to all of the above rights, they do not have to open the door or let the officers into their home unless they have a valid search warrant signed by a judge. Finally, if an ICE officer comes to someone’s work place, they again must have a valid search warrant or the consent of the employer to enter non-public area.
The President’s enforcement plans are a monumental waste of time and resources and, as always, grounded in politics. We should all remain focused on real solutions to the immigration problem that has plagued our country for longer than I care to remember. The members of our community who are being arrested, detained and deported are mothers, fathers and children. They’re our neighbors. They’re the people who make your summer in Saratoga experience all that you want it to be for you and your families. Let’s stop playing games and starting working on real solutions. It’s about time.
Some of you know that I was engaged by the late Sr. Maureen Joyce, the then-CEO at Catholic Charities of the Diocese of Albany, in July 2000, to help Catholic Charities launch an immigration program that would serve low- and no-income individuals from a 14-county area in and around the Capital Region. Catholic Charities created the immigration program to foster and facilitate family unity, freedom, and citizenship for eligible foreign-born persons by providing low-cost and high-quality legal services. Catholic Charities also engages in public advocacy and community training and outreach to advance the fair treatment of our nations’ immigrants, and to protect the rights of such immigrant and refugees.
My initial task was to obtain accreditation for the agency with the Board of Immigration Appeals (“BIA”), which is part of the Executive Office of Immigration Review (“EOIR”), so that Catholic Charities could provide services to individuals who were in need of immigration assistance. Once we did that, I hired a staff of one, who works part-time. More recently, we’ve hired another individual, who also works part-time. My work for the agency is part-time. Although Catholic Charities is authorized by the BIA to charge fees for its services, to date we never have.
The Catholic Legal Immigration Network, Inc., commonly known as CLINIC, is the legal support arm for Catholic Charities’ immigration programs across the country. CLINIC was established in 1988 by the U.S. Conference of Catholic Bishops to support the rapidly growing network of community-based immigration programs like ours in Albany. CLINIC’s creation enables Catholic organizations across the country to get the necessary training and institutional support they need to provide low or no cost immigration legal services to those in need.
Here are just a few facts about CLINIC:
• In 2017, CLINIC’s network conducted an estimated 276,000 consultations, more than half of which became cases for network agencies.
• Also, in 2017, CLINIC’s network filed approximately 247,000 applications, petitions, motions, or waivers. Those applications served about 500,000 people, including the applicants themselves and their dependents.
• Volunteers accounted for more than 84,000 hours of assistance in 2017, enabling programs to provide legal services to a broader base.
• And finally, also in 2017, CLINIC supported nearly 5,400 community outreach presentations, which reached nearly 325,000 people, all of which provided necessary and importation information about legal rights and options.
There are many “perks” of being member organization of CLINIC. For me, the biggest perk is being able to work with, and be supported by, a group of seriously talented immigration lawyers and advocates. Last month, and each year for nearly the last twenty, I have attended CLINIC’s Annual Convening. Among other things that takes place at the Convening, attorneys and advocates gain insight and premier education about immigration law, program management and advocacy. The Convening moves around the country each year. This year we were in Pittsburgh. In the past, we’ve been to Tucson, Portland, New Orleans and of course Washington, D.C. Regardless of the location, I come home every year so incredibly impressed by the level of knowledge that the attorneys and advocates who teach the programs have, and their incredible commitment to protect the dignity and the rights of the immigrants that they and we serve. I marvel at how much they know and how much I still have to learn. I am so incredibly grateful for their incredible passion and commitment.
CLINIC’s staff trains close to 10,000 people a year, in topics ranging from the basics of immigration law to the nuances of representing clients in detention and removal / deportation proceedings. It’s hard work and it’s very complex. They make it seem easy, and more than anything, it’s clear that they love what they do. It’s very motivating. When I return each year, I am energized to keep trying, to perhaps do just a little more.
In these very tumultuous and politically troubling times, CLINIC’s work, and ours at Catholic Charities in Albany, is more important than ever. Given the current political climate, the current make-up of Congress, and the fact that President Trump has shamefully shown no humanity to almost all immigrants except for perhaps “the best and brightest”, the work of CLINIC, its member agencies, and frankly all not-for-profit immigration programs across the country, needs your support. We all need to do our part.