Monthly Archives: June 2020

BBA Legislative Alert: Help Secure Fairness for Non-Citizen Taxpayers

As you may know, the BBA recently endorsed legislation that would eliminate an unjust disparity in the federal CARES Act’s treatment of taxpayers who use an Individual Taxpayer Identification Number (ITIN), as well as their families, leaving almost all of them ineligible for stimulus payments of up to $1,200 per person, despite paying the same share of taxes as those who file with a Social Security Number.  

We submitted testimony to the Legislature’s Joint Revenue Committee, urging them to give the relevant bills a favorable report, so the full body can vote on the measures. And the Boston Globe has since lent its support

Now you can help, too: The legislation faces a committee deadline of June 16 and may be rendered effectively dead for the year if not reported out by then. If you have a moment this week to contact your state Senator and Representative, by phone or e-mail, please ask them to express their support for S. 2659 and H. 4726 to the Revenue Committee chair and to Senate or House leadership. 

You can find more background in our testimony and in a fact sheet by the Massachusetts Budget and Policy Center. Thanks for your support!

Immigration Update: June 2020

Since we published our Immigration Principles in 2018, we have been tracking a number of immigration-related issues and have regularly posted updates on our Issue Spot blog. Our most recent update was posted shortly after Governor Charlie Baker declared a state of emergency in Massachusetts as a result of the coronavirus pandemic. Since then, immigration policies have continued to change and have gone largely unnoticed as the pandemic dominates local and national headlines. This is an update on some of the most recent immigration-related news and changes to previous policies.  

USCIS 

The United States Citizenship and Immigration Services (USCIS) is the agency primarily responsible for the issuance of visas, green cards, and naturalization services. The COVID-19 pandemic has significantly reduced the number of people travelling and applying for visas to enter the United States, which has caused USCIS revenue to plummet, as it relies mainly on application fees to fund its operations. The institution said that it could run out of money by the summer and has sought out a $1.2 billion cash infusion from Congress in order to stay afloat. 

Late last year, the agency announced application fee increases. According to the Migration Policy Institute, “the increases USCIS proposed in mid-November (there are a few categories where application fees would decrease) are significant but not unprecedented. Since the agency was established in 2003 as part of the creation of the Department of Homeland Security (DHS), which absorbed the functions of the earlier U.S. Immigration and Naturalization Service (INS), fees have been adjusted five times”. Immigration advocates criticized the increases for having the covert intention of limiting low-income applicants’ ability to apply for asylum, green cards, and naturalization.  

Now, application fees are poised to increase again as a result of the decrease in application numbers. Advocates claim that the need to increase fees is a result of USCIS’s lack of efficiency and excessive vetting process that has caused every application to take longer to review. Some critics said that the agency was ill-prepared for the economic shock from the coronavirus pandemic because of policies that had rendered its adjudication process less efficient while bloating its payroll. “This administration has made every single application much more expensive and time-consuming to adjudicate,” said Doug Rand, who worked on immigration policy in the Obama administration. 

In our 2018 Immigration Principles, we refer to an American Bar Association (ABA) Resolution from 2007 that reports the proposed naturalization and immigration fee increases at the time. The Resolution states that, “the new fees may place naturalization and other immigration benefits out of reach of many low-income immigrants. Application fees should not be so excessive as to prevent otherwise eligible individuals from accessing benefits, and USCIS initiatives that benefit the public as a whole should be funded through federal appropriations rather than through application fees”. The BBA endorsed this regulation and holds that it would be unjust for application fees to be the reason why somebody is unable to apply to adjust their status.  

The fees remain unchanged for now. The Federal Register has posted three public notes about them, attracting more than 40,000 public comments that the agency is mandated to review before announcing a final rule.

Deportation of Refugees and Children at the Border 

Under the guise of battling the threat presented by COVID-19, President Trump has used the nation’s public health laws as an excuse for summarily deporting refugees and children at the border. On March 20, 2020, the Centers for Disease Control (CDC) issued an order authorizing the summary expulsion of noncitizens arriving at the border without valid documents. The order was issued simultaneously with an emergency Department of Health and Human Services (HHS) Interim Final Rule based on the authority of an obscure provision of the 1944 Public Health Service Act. According to Just Security, based out of the Reiss Center on Law and Security at New York University School of Law, “Section 362 of that Act authorizes the Surgeon General to suspend ‘introduction of persons’ and ‘introduction to communicable diseases’ into the United States. It establishes a summary immigration expulsion process that ignores the statutory regime governing border arrivals and disregards the protections and procedures mandated by the 1980 Refugee Act and Refugee Convention as well as the special safeguards for unaccompanied minors under the Trafficking Victims Protection Reauthorization Act (TVPRA)”.  

The CDC order directly impacts those traveling to the United States by land, coming from Mexico and Canada. It claims to serve the purpose of preventing immigrants from congregating in large groups and limiting the possibility of new infections being brought into the country. However, critics claim that this policy distracts from meaningful measures to prevent the spread of the coronavirus and undermines confidence in the CDC. The Border Patrol is carrying out the CDC directive by “expulsion” of anyone who arrives at U.S. land borders without valid documents, not because they are contagious or sick but because they come from Mexico or Canada, regardless of their country of origin. More than 20,000 people have been deported under the order, including 400 children in just the first few weeks. The order was justified as a short-term emergency measure. However, it is now known that the Trump administration plans to extend the border restrictions indefinitely, until the director of the CDC no longer identifies the virus as a threat.  

“This ban was never about the pandemic, and it was never about public health,” said Charanya Krishnaswami, an advocacy director for Amnesty International. “As [the] news makes clear, the Trump administration is weaponizing COVID-19 to achieve the policy objective it’s sought from Day 1: shutting the border to people seeking safety.” Advocates add that there are no such measures for truck drivers travelling from Canada and Mexico for commercial or educational purposes and that the restrictions that exist do not apply at all to airplane travel.  

Ban on Issuance of New Green Cards 

On April 21, President Trump tweeted that he would order a temporary halt on issuing green cards to prevent people from immigrating to the United States, citing the exponential increase in unemployment claims due to the coronavirus pandemic and the need to protect American citizens’ job security from non-citizens seeking employment in the U.S. Trump said that his order would initially be in effect for 60 days, but that he might extend it “based on economic conditions at the time”. 

The BBA asserts that “immigrants play a critical role in the civic, economic, and cultural life of our city, state, and country”. It sides with the numerous studies that outline how immigration boosts, rather than suppresses, the American economy and job growth. There is no evidence to show that limiting legal immigration will result in greater job opportunities for citizen workers. In fact, last month, BBA President Chris Netski issued a letter to Acting Secretary of Homeland Security Chad F. Wolf, urging him to leverage the authority of the Department of Homeland Security (DHS) to enlist the help of noncitizen healthcare workers in the fight against COVID-19. In the Presidential Proclamation, President Trump outlines that this temporary ban will not impact “any alien seeking to enter the United States on an immigrant visa as a physician, nurse, or other healthcare professional”.  

Still, it is predicted that Trump’s proclamation will block as much as a third of all the people who would otherwise be approved for a green card each year. This will especially affect family-based green card applicants applying from abroad and will effectively terminate the Diversity Visa program. This order adds to claims that the Trump administration is utilizing the COVID-19 crisis to push forth harsh immigration policies that have nothing to do with public health protections. 

On May 13, the DHS responded to our letter and seemed to deny they have any authority, even in an emergency, to grant parole or deferred action to non-citizen health workers who could save lives in this pandemic. We were disappointed with this response and will continue to advocate for this and for ensuring that immigrants are not impacted by public charge regulations when seeking out testing and treatment for COVID-19.

Infection Within ICE Detention Centers  

In a May 22 letter, BBA President Chris Netski addressed a spreading COVID-19 crisis behind the walls of prisons, jails, and detention centers in Massachusetts, which threatens to expand into the broader community. “In the midst of a pandemic, congregate housing of incarcerated individuals, pre-trial and immigration detainees, and people held on civil commitment presents urgent challenges that call for comprehensive action by all three branches of government,” said the letter.

There is growing evidence that infections are rampant within Immigration Customs Enforcement (ICE) detention centers, and that law enforcement is not doing enough to test detainees and prevent further infection. Andrea Flores, Deputy Director of Policy, Equality Division at the American Civil Liberties Union (ACLU), issued a statement claiming that “people in detention centers are sitting ducks for the spread of this virus”. 

On March 26, 2020, Lawyers for Civil Rights (LCR) filed an emergency class action[link?] against ICE and the Bristol County Sheriff requesting immediate relief on behalf of a putative class of highly vulnerable civil immigration detainees who are at imminent risk of contracting COVID-19. U.S. District Court Judge William Young found both the sheriff and ICE have deliberately disregarded the health of detainees in their care amid the COVID-19 pandemic. Young ordered immediate, widespread testing — at ICE’s expense — of ICE detainees, as well as staff who may have come in contact with them. As of May 7, 2020, the class action had resulted in the release of 50 detainees. The BBA has been tracking this case and is pleased to see this positive outcome. 

The ACLU of Rhode Island also filed a class action lawsuit on May 15 against DHS, ICE, the local ICE field office, and the warden of the Donald W. Wyatt Detention Facility in Central Falls, Rhode Island. The suit, filed as a habeas corpus petition, seeks urgent relief for a class of over 70 immigration detainees at the facility. It names three detainees who have underlying conditions that put them at a heightened risk of death or serious illness if infected with COVID-19. However, the class-action petition argues that all of the ICE detainees at Wyatt are at “unreasonable risk” of COVID-19 infection due to the conditions at the facility, and should therefore be released or placed in community-based alternatives to detention. It cites a recent study which projects a “significant impact on immigrants and local health care if ICE detention populations are not decreased”.  

-Lucia Caballero
Government Relations Assistant
Boston Bar Association

BBA Joins Amicus Brief in Support of Keeping ICE Out of Massachusetts Courthouses

We have been concerned for several years about the issue of enforcement of our immigration laws, and an amicus brief the BBA joined this week is the latest example of our advocacy in this area.

In April 2019, Middlesex County District Attorney Marian Ryan, Suffolk County District Attorney Rachael Rollins, the Committee for Public Counsel Services (CPCS), and the Chelsea Collaborative, Inc., jointly filed a lawsuit in federal court against U.S. Immigration and Customs Enforcement (ICE), the U.S. Department of Homeland Security (DHS), and several other officials. The lawsuit challenges ICE’s policy and practice of conducting civil immigration arrests inside of and near state courthouses in Massachusetts.

The Plaintiffs contend that:

  • At the time the Immigration and Naturalization Act (INA) was enacted, all those appearing in court on official court business enjoyed a common-law privilege against civil arrest.
  • INA does not specifically extinguish this common law privilege and therefore must be interpreted to be constrained by it.
  • Any ICE policies which permit civil courthouse arrests are in excess of the power granted by the INA and must be set aside by the court.

The Defendants argue that there is no common-law privilege against civil arrest in courthouses and, in the alternative, that any such privilege was superseded long before the codification of the current immigration scheme.

In June 2019, the Plaintiffs’ Motion for a Preliminary Injunction, which sought to restrict immigration authorities from civilly arresting parties, witnesses, and others attending Massachusetts courthouses on official business while they were going to, attending, or leaving the courthouse, was allowed.

This week, the BBA joined an amicus brief in the case jointly drafted by Professor Christopher Lasch of the University of Denver School of Law and the Massachusetts Bar Association (MBA). The brief was also joined by the Massachusetts Academy of Trial Attorneys (MATA), the Women’s Bar Association (WBA), and the South Asian Bar Association of Greater Boston (SABA GB).

The brief is positioned in support of affirming the District Court’s order granting the injunction. Defendants are currently pursuing an interlocutory appeal of that order in the First Circuit, while simultaneously filing a motion to dismiss in the District Court—and an amicus brief in opposition to the latter has been submitted by Professor Nikolas Bowie and the Harvard Immigration and Refugee Clinical Program.

The brief:

  • Contextualizes the case by detailing how “thirty years of ever-increasing efforts by the federal government to harness state and local justice systems in the service of immigration enforcement” set the stage for the conflict between the parties.
  • Outlines why the common-law privilege from arrest recognized by the District Court guarantees access to equal justice and is essential for preserving individual rights.
  • Argues that the privilege from arrest prohibits civil arrests in and around courthouses, protecting the sanctity of the courts as a branch of government and signaling equal access for all who come seeking justice.
  • Argues that the privilege from arrest prohibits arrests of those on their way to, or returning from, court proceedings, protecting individual access to the courts and preserving individual rights.

The BBA has spoken on this issue previously. Our Immigration Principles, as adopted in 2018, state:

“[I]mmigrants, like all other residents of the Commonwealth, must be free to access courthouses, law enforcement agencies, and other governmental agencies without fear that doing so will lead to immigration detention or deportation.”

Earlier that same year, we sent a letter to SJC Justice Cypher in her capacity as Single Justice, in support of the request by plaintiffs in a related case for full-bench review of a similar claim. (She denied that motion, and the case ended there.) And, in 2019, we spoke out against the federal indictment of Judge Shelley Joseph, who allegedly helped an undocumented man avoid an ICE agent who was waiting for him outside her courthouse. In that occasion, we asserted that the federal government’s decision to send ICE officers to Massachusetts courthouses significantly interfered with the ability to secure justice for all in cases where immigrants—documented and undocumented—are victims, witnesses, or defendants.

The amicus brief we joined this week presents a united front among a number of concerned Massachusetts bar associations, who agree that ICE enforcement in and around our courthouses contributes to a detriment in the ability for all persons to access the justice system, and we hope that this will help persuade the Circuit Court to uphold the injunction.

We will of course continue speaking out on this issue, guided by our Immigration Principles, and we hope that this case sets a precedent that will protect individual litigants in and around courthouses across the Commonwealth and, in doing so, advance the cause of justice.  

-Lucia Caballero
Government Relations Assistant
Boston Bar Association