September, the BBA released Immigration
Principles that have guided our response to various immigration-related
issues since. Every few months, we like to offer updates on significant
immigration developments and events to be reminded of these principles and
their importance, as well as the BBA’s long-standing support of measures to
uphold due process and equal protection rights and access to counsel for
In the past few months, there have been four significant developments in immigration policy that we would like to direct your attention to.
The Flores Settlement
2018, as part of our first Immigration Update following the publication of the
Immigration Principles, we published an Issue Spot on the
Department of Homeland Security’s proposed regulations related to the Flores
Settlement Agreement (FSA). The following month, we filed a letter, directed
at Debbie Seguin, the Assistant Director of the Office of Policy at U.S.
Immigration and Customs Enforcement, opposing this effort to undermine the
protections asserted by the FSA. Earlier
this summer, the Trump Administration announced a proposal to terminate the FSA,
a move that would significantly reduce protection of detained migrant families
traveling with minors.
was established in 1997 as the outcome of the Flores v. Reno case. This
court agreement requires the government to release children from immigration
detention, without unnecessary delay, to their parents. The settlement also
required immigration officials to provide detained minors a certain quality of
life, including things such as good drinking water and medical assistance in
emergencies. (A Congressional
Research Service report details the conditions and protections of
minors required by the settlement.)
settlement was reached after Jenny Lisette Flores, a 15-year-old girl from El
Salvador, was arrested by the former government agency Immigration and
Naturalization Service (INS) while trying to cross the US-Mexico border and was
taken into custody separate from the family member she was traveling with. The
ACLU filed a class-action suit on behalf of Jenny and other minors, eventually
leading to the Flores agreement.
administration has made repeated attempts to change the Flores settlement
agreement, arguing that it prevents the government’s efforts to deter
undocumented immigrants from entering the country. The administration claims
that this new rule will keep families together by reducing the number of
undocumented children attempting to travel into the United States. However,
attorneys for migrant children and advocates for immigrant rights are arguing—and
the BBA shares this concern—that this effort will compromise the health and
safety of detained minor children by allowing the government to detain them as
long as it wishes.
A coalition of 20 states led by California and Massachusetts are filing a lawsuit against the Trump administration in the hopes of blocking the implementation of the proposed regulation and protecting the FSA. Our November 2018 letter, issued by then-BBA President Jon Albano, argues that failing to fulfill the purpose of the FSA “raises serious due process concerns, is fiscally irresponsible, and will endanger the well-being and rights of immigrant children”. We have for years been speaking in opposition to practices that threaten the rights and well-being of immigrants and in support of measures that ensure the just, humane, and fair treatment of all individuals within our borders, but now those positions have been enshrined in our Immigration Principles.
The Public Charge Rule
this month, the Trump administration announced a proposed change to a
regulation known as the “public charge” rule. This regulation denies green
cards to immigrants deemed likely to be reliant on various forms of social
The BBA submitted
comments in opposition to the proposed public charge rule in December
2018. In the letter, then-President Jon Albano cited our Immigration Principles
and argued that the new public charge rule would “create significant barriers
to accessing justice, have harmful impacts on immigrants, their families, and
our communities and economies, and may be applied unfairly and inconsistently”.
Further, Mr. Albano noted that in the past, public charge determinations have
been used to justify exclusion of groups such as low-income Irish immigrants
and Jews fleeing Nazi persecution, and how dangerously close to repeating these
troubling moments in history we are. The BBA urged
others to join them in opposing the proposed public charge rule.
current policy, only immigrants who are primarily dependent on cash benefits or
in government-funded, long-term institutional care would be considered public
charges. The proposed rule would dramatically expand the list of public
benefits that could lead to an immigrant being considered a “public charge”.
Starting in October, the government’s decision to grant green cards will be
based on an aggressive wealth test that will deny legal residence to hundreds
of thousands of immigrants. The new rule appears designed to reshape, reform,
and significantly shrink the legal immigrant community. A study conducted
by the Migration Policy Institute when the proposed regulations were first
announced in June 2018 found that:
- Nearly half of the U.S. noncitizen population
could be at risk of a public-charge determination – up from a current 3
- The rule will discourage millions of
immigrants from accessing health, nutrition, and social services.
- The effects of this rule are likely to stretch
beyond immigrants themselves to affect U.S.-citizen children whose parents may
disenroll them from services for fear of immigration consequences.
Migration Policy Institute study from last month found that of the
legally present noncitizens in families with annual incomes below 250 percent
of the federal poverty line, the vast majority are from Mexico and Central
America, Africa, and Asia. In fact, 72% of legal noncitizens from the
Caribbean, 71% of those from Mexico and Central America, and 69% of those from
Africa are in families with annual incomes below 250 percent of the federal
poverty line. The intention behind this rule is said to be that new legal
residents “carry their own weight”, without acknowledging that it will
specifically target poor people from Latin America, Africa, and parts of Asia. In
other words, this rule will directly impact poor people of color, discouraging
them from seeking out public assistance and putting their housing situation,
health, and economic stability at risk.
This isn’t the first time that Trump has targeted immigrants coming from specific countries or attempted to curtail legal immigration into the United States, and follows a set of troubling immigration policies proposed by the current administration.
Halt of Medical Deferred Action Program
this summer, the Trump administration announced that it
was ending the program that allowed immigrants to avoid deportation while they
or their relatives were undergoing lifesaving medical treatment. This program,
called “deferred action”, ensured at least 1,000 qualified people every year
would not be deported until their medical treatment was over. The BBA tweeted that we were
“deeply concerned” and “dismayed” by this change in policy and referenced one
of our Immigration Principles, that “no person’s rights or human dignity should
be devalued on the basis of immigration or citizenship status” to explain our
opposition to it.
began informing families that it would stop considering requests for deferred
action and that the families must leave the country within 33 days. In a statement to the
Boston Globe, Congressional Representative Ayanna Pressley said that,
“deportation from the United States with this type of medical condition is a
Since the announcement of this rule change, public outcry has led the Trump administration to reinstate the program. This followed a coordinated effort by 100 members of Congress who signed a letter denouncing the suspension of the program as well as public uproar as migrants affected by this change began to come forward. The American Immigration Lawyers Association welcomed the decision and thanked the impacted clients for bringing the “cruelty of this rescission to light through their bravery and courage sharing their stories with the agency, the media, and Congress”.
Halt of Asylum Application Processing in Boston and Newark
Newark are currently the only two cities that process asylum claims for New
England residents, and that may be coming to an end. The Trump Administration
is halting the processing of most New England asylum cases, leaving behind more
than 40,000 pending cases, by redirecting most of the officers from the Boston
and Newark offices to the southern border.
Director Ken Cuccinelli tweeted that the claim that Boston and Newark will stop
processing asylum claims is false, and that it is simply a slight shift of
staff to help with the “credible fear” workload piling up at the southern
border. However, immigration attorneys and asylum officers are saying that they
received an email
from USCIS last week saying that it would no longer schedule any new asylum
interviews in Boston and only a small number in Newark. Senator Elizabeth
Warren said it is part of the Trump Administration’s “shameful campaign to
prevent people fleeing violence from finding refuge in the US.”
We will continue to monitor these situations as new developments unfold.
-Lucia Caballero Guiu
Government Relations and Executive Assistant
Boston Bar Association