Immigration Update: Public Charge, DACA at the Supreme Court, and the “Remain in Mexico” Policy

We continue to monitor developments on immigration policy, especially at the federal level, in keeping with our adoption in 2018 of broad immigration principles. Today, we present updates on a number of related fronts.

First, earlier this month, the Department of Homeland Security proposed new regulations that would increase a broad array of fees associated with immigration applications. 

Although some fees would actually see a decrease, the citizenship application fee would rise from $640 to $1,170, for example, and Deferred Action for Childhood Arrivals, or DACA, applications would go from $495 to $765.

Such changes would be counter to our immigration principles; in the report accompanying them, we wrote:

For people seeking an immigration remedy, the individual liberty interest at stake is “grave,” and so the accompanying protections—constitutional as well as statutory—must be potent. Immigrants face barriers to access to the administrative immigration system established by Congress … when applicants for immigration benefits are charged prohibitively high fees. These barriers call into question whether the constitutional rights of Due Process and Equal Protection applicable to all persons, regardless of immigration status, are more illusion than reality.

But they also run afoul of a position we took in 2008, when we endorsed an ABA resolution declaring (in part), “Fee levels for immigration and naturalization benefits [should not be] so burdensome as to deter eligible applicants from applying for such benefits.”

The timetable for implementation of this proposed rule has it going into effect, on an emergency basis, on December 2.

Public charge rule on hold

The BBA has been closely following the developments of the public charge rule since December 2018, when then-President Jon Albano submitted comments in opposition to the policy and urged others to join. Most recently, we published an Issue Spot blog post citing a new Migration Policy Institute study that detailed exactly how the proposed policy would affect legal immigrants in the U.S.

The most recent update to this policy is that federal judges in three states – New York, California, and Washington – have issued temporary injunctions to prevent the rule from taking effect on October 15, as was planned. The rule is being challenged in several federal courts and more than a dozen state attorneys general, arguing that it discriminates against low-income immigrants and immigrants of color. One of the major concerns is the impact of the policy on public health, encouraging immigrants to withdraw from public healthcare programs and imposing a huge cost on local and state governments.

The public charge rule goes against our Immigration Principles, which state that: “Every person should have the full and meaningful ability to exercise their rights and to access justice through the legal system regardless of immigration or citizenship status, level of income, or economic circumstance”. The rule not only discriminates against low-income immigrants but also deters all immigrants from accessing public services and fully exercising their rights and freedoms.

DACA Arguments at Supreme Court

This week, the Supreme Court heard arguments on what may be one of the most important cases of the year: the decision whether to uphold the Trump administration’s dissolution of DACA.

Enacted in 2012 by the Obama administration, the DACA program was designed to protect undocumented individuals who were brought to U.S. as children. It allows them to work, pursue an education, and be protected from deportation. In September 2017, President Trump declared that the DACA program was “illegal” and “unconstitutional” and initiated the process of dissolving it. Three federal appeals courts ruled that when an administration revokes a policy on which so many people have relied, the administration must provide a fully supported rationale that outlines why, which it did not do in 2017. The Trump administration appealed to the Supreme Court, and that argument took place on Tuesday.

The Supreme Court’s conservative majority signaled that it may back the Trump administration and allow it to shut down the program, affecting 700,000 young people currently protected by DACA.

We hosted a program on this issue in 2017 and are continuing to keep a close eye on it as new developments arise.

Mexico’s Humanitarian Crisis

On Friday, November 8th, the Boston Bar Association hosted Eunice Rendón to give an update on the impact that the “Remain in Mexico” policy has had on refugees, asylum seekers, and migrants in Mexico. Eunice Rendón is the Executive Director of Agenda Migrante and a researcher at the National System of Researchers of CONACYT (Mexico’s National Council of Science and Technology).

Ms. Rendón began her talk by providing an overview of the “Remain in Mexico” Policy. The policy is an agreement between the Mexican government and the U.S. government that asylum seekers going through immigration proceedings must remain in Mexico during the process. Ms. Rendón noted that the six Mexican cities where the migrants must remain are the most dangerous cities in the country, with some of the highest rates of homicide. She stated that it is estimated that there are 50,000 migrants in Mexico, but their whereabouts are unknown by the Mexican government. Ms. Rendón also noted that the Mexican government is feeling the strain of deportees, which has increased to 200,000 a year under the Trump administration. 

The migrants in Mexico are being held in two types of shelters: shelters run by non-profit organizations and official Mexican government shelters. Ms. Rendón believes that both shelters lack the capacity to support the influx of migrants, which has risen from 7,000 a year to 60,000 a year over the past four years. She also noted there is tension between the federal government and local governments on the contribution levels to the shelters. The poor conditions in the shelters have allowed criminal organizations to exploit migrants, by forcibly recruiting them into their organizations, leaving young children especially vulnerable.  Importantly, most migrants are not well informed on the dangers of attempting to cross the U.S. border or the challenges associated with seeking asylum in the U.S. The Mexican government has attempted to deter migrants by posting the National Guard at the southern border, but, according to Ms. Rendón, they are not well-trained in immigration enforcement proceedings and are not doing an adequate job.

Ms. Rendón concluded her talk by stating that Mexico has undergone a transition from being only a point of transit in the migratory process to becoming a reception country. The people of Mexico have become fearful of migrants due to the reverberation of xenophobic language coming from the Trump administration. Migrants are now settling into Mexican communities as they await asylum claims in the U.S. In dealing with the changing face of migration, Mexico does not have the resources to respond.

This event was co-sponsored by the Immigration Law Section Steering Committee and the Boston Bar Foundation’s Policy Research and Innovation Fund.

-Michael Avitzur
Government Relations Director
Boston Bar Association

and

Lucia Caballero
Government Relations and Executive Assistant
Boston Bar Association