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.
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”.
Government Relations Assistant
Boston Bar Association