Week 29: Trump issues new immigration order, angering pro- and anti-immigrant groups
Immigration news, in context.
This is the twenty-ninth edition of BORDER/LINES, a weekly newsletter by Felipe De La Hoz and Gaby Del Valle designed to get you up to speed on the big developments in immigration policy. Reach out with feedback, suggestions, tips, and ideas at BorderLines.News@protonmail.ch.
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This week’s edition:
In The Big Picture, we explain the president’s newly issued ban on immigrant visas.
In Under the Radar, we discuss how the outcome of a Supreme Court case will make cancellation of removal more difficult, as well as the latest decision to release certain immigrants from ICE detention.
In Next Destination, we look at the fate of DACA.
The Big Picture
The news: After setting off a flurry of speculation with a vague tweet sent Monday night, President Donald Trump issued a presidential proclamation restricting immigration, ostensibly to mitigate “risk to the U.S. labor market” in the wake of the Covid-19 epidemic’s hit to the U.S. economy.
At 10:06 pm Eastern Time on Monday, the president sent out a tweet saying he would be signing an order to “temporarily suspend immigration into the United States,” with no further context or clarification, unleashing panic and confusion among work visa holders, would-be immigrants, their families, and their attorneys. Several leaked details and drafts contradicted each other, and the order reportedly hadn’t even been drafted by the time the tweet came. The conjecture was put to rest Wednesday night, when the White House released the proclamation.
It was less expansive than many had expected, resembling a broader version of the travel ban that the president had issued early in his term, except applied only to immigrant visas and to nationals of all countries, as opposed to any specific ones. Like the travel ban, it delineated a number of exceptions, but did not establish a particular waiver system, meaning that people who aren’t specifically exempted don’t appear to have any avenue to override the ban (not that the waiver process for the third and final version of the original travel ban was very robust).
Like that travel ban, the since-enjoined order requiring potential immigrants to have secured health insurance immediately upon their arrival, and the more recent pandemic-response travel bans targeting Iran, China, and several European countries, this order relies on Immigration and Nationality Act Section 212(f) [8 U.S.C. § 1182(f)], a sweeping statute that we’ve written about several times before. Broadly, it enables the president to find that any “class of aliens” is detrimental to U.S. interests and suspend their entry into the country.
This last bit is important. The law only gives the executive the power to regulate entry. Legally, there is no way to invoke this statute to target people in the United States, and this order doesn’t do that. This includes people adjusting their status to legal permanent resident from within the country. Even if they are undergoing a process to be formally recognized as an immigrant, they are not entering the country as an immigrant. (That said, there are a number of people who must leave the country and go through consular processing to become permanent residents, and could be affected if they did in fact leave.)
The ban prevents the issuance of new immigrant visas during its effective period. The term “immigrant visas,” which is poorly understood, has led to some confusion. When people colloquially reference “visas,” they’re usually talking about nonimmigrant visas, like F-1 student visas, B-1/B-2 tourist visas, or H-1B and O-1 work visas. No nonimmigrant visas are affected by this order, either inside or outside of the United States. This means people who hold such visas can continue to travel to the U.S., and those already in the country will see no change to their status.
Immigrant visas are very narrowly used to allow noncitizens to travel to the U.S. to become residents, via family, employment, the diversity program, or certain refugee programs. Once immigrant visa holders arrive in the U.S., they immediately become permanent residents, and subsequently travel as permanent residents. Green cards are not immigrant visas. Except in rare circumstances, such as someone spending six months continuously abroad, residents are not legally considered to be applying for admission to the U.S. when they return, but rather are already admitted permanently.
The order specifically affects people outside the U.S., who haven’t already received an immigrant visa as of April 24, and who don’t possess a different kind of travel document, like advance parole. All told, at any given time this is a relatively small group. The Migration Policy Institute estimates the ban will affect about 26,000 people a month. If the order is only in effect for 60 days, as its initial run is slated to be, it would have a comparatively slight impact. People who have already obtained immigrant visas will still be allowed to enter the U.S. and become permanent residents.
There are some explicit exemptions:
green card holders
medical professionals and those performing research or otherwise working on the pandemic response, as well as their spouses and unmarried children under 21
applicants for the EB-5 investor visa (a program Jared Kushner’s company has been investigated for abusing)
spouses of U.S. citizens
children of U.S. citizens who are under 21 or who are being adopted
members of the U.S. armed forces and their spouses and children
refugees and holders of Special Immigrant Visas (which are for Afghan and Iraqi nationals who assisted the U.S. government and armed forces)
generally people that the federal government deems to further a law enforcement or national interest purpose
How we got here
Despite some claims to the contrary — just two months ago, acting White House chief of staff Mick Mulvaney claimed the country is in “desperate” need of more legal immigrants — reducing legal immigration has long been a Trump administration goal.
The diversity visa program, often referred to as a “green card lottery,” has been a particularly elusive target for some time. In 2017, after a man drove a pickup truck through a New York City bike path, killing eight people, Trump said he was “starting the process of terminating the diversity lottery program.” The man, who immigrated to the U.S. from Uzbekistan in 2010, had come to the U.S. with a diversity immigrant visa. (For more on the diversity visa and its origins, we suggest this Vox explainer.)
The president and his allies have also proposed overhauling rates at which immigrant visas are allocated: In his 2020 State of the Union address, Trump vowed to “replace our outdated and randomized immigration system with one based on merit.” Immigration restrictionists, including Trump, deride family-based migration — a process through which U.S. citizens can petition for relatives who live abroad, including parents, spouses, children, and siblings to receive visas allowing them to immigrate to the United States — as "chain migration.” Though the order still allows spouses and certain children of U.S. citizens to obtain immigrant visas, parents and siblings are affected. (Indeed, on a call with supporters today, White House adviser Stephen Miller implied the order’s goal is to cut “follow-along migration, or what is often referred to as chain migration,” according to Washington Post reporter Josh Dawsey.)
Of course, family-based migration isn’t as easy as Trump and Miller make it seem. The length of time applicants for these visas have to wait varies depending on several factors, including their country of origin and their relation to a U.S. citizen, but generally speaking, the process takes years.
There have been a few pieces of legislation — including the 2017 RAISE Act, which Trump supported — that have sought to end the diversity lottery program altogether and seriously reduce family-based migration. But the pandemic has given the president a way of making these changes without legislation, albeit temporarily.
As we mentioned above, the order relies on the same section of the Immigration and Nationality Act that has been used as a justification for everything from the travel ban affecting certain Muslim-majority countries (and subsequent travel bans) to a currently halted order that would prevent prospective immigrants from coming to the U.S. if they can’t prove they’d be able to purchase unsubsidized health insurance.
This isn’t the first time a sitting president has invoked an emergency to limit legal immigration. The 1921 Emergency Quota Act, signed by President Warren G. Harding, did just that. Like the rationale for the recent order, the 1921 law used rising unemployment and economic unrest as a justification for curbing immigration — even though its provisions were longtime goals of organizations like the Immigration Restriction League, a powerful Boston-based group whose members were more motivated by a desire to preserve America’s racial character than by the protection of domestic labor. (Politico has a great piece that digs deeper into the 1921 law and its aftermath.) The quota act set the stage for subsequent restrictive legislation, culminating in a 1924 law, known as the Johnson-Reed act, that effectively cut off all immigration from Asia and Eastern Europe. Those limits remained in place until the Immigration and Nationality Act of 1965, also known as the Hart-Celler Act, which replaced the national origins quota system with an employment and family-based preference system.
The ban as written is technically in place for 60 days from the effective date, which was the end of April 23. However, it can be extended “as necessary,” and no later than ten days before it’s set to expire, the secretaries of Homeland Security, State, and Labor are to recommend whether it should be continued or modified.
Here’s where the framing and intent of the proclamation become especially important. Whereas the prior travel bans were presented as methods of preserving national security, maintaining the public coffers, or ensuring public health, this order is built around a nebulous notion of protecting U.S. jobs from foreigners, and points to the high joblessness rate created by the crisis.
Therefore, it’s not formulated so much as a response to the pandemic as it is to its economic fallout, and this economic fallout will last years, far longer than the pandemic itself. It’s hard to imagine that after 60 days, Trump and his cabinet will have decided that the conditions that led to its signing have dissipated, or that they’ll decide so after the next 60, or the 60 after that.
Those not targeted by its scope aren’t completely out of the woods yet. The order includes a section ominously titled “Additional Measures,” which instructs the same cabinet secretaries to “review nonimmigrant programs” and “recommend to me other measures appropriate to stimulate the United States economy and ensure the prioritization, hiring, and employment of United States workers.” Some of the earlier drafts and reporting on the order had pointed to it including a number of nonimmigrant visa restrictions, such as pausing work visa programs or requiring H-1B holders to recertify that they were not competing with American workers. These programs are stringently criticized by immigration restrictionists, often more so than permanent immigration.
Indeed, there was immediate backlash to the order from Tanton network hawks like the Federation for American Immigration Reform (FAIR), who felt that the order didn’t go anywhere near far enough. These groups are influential with Trump-world figures, particularly presidential adviser Stephen Miller, who is the architect of the administration’s overarching immigration agenda. Their displeasure could well lead to a reevaluation of the exclusion of work visas, though this would risk alienating some of the president’s business allies.
As far as what this could look like, it’s not necessarily worth speculating, but it’s safe to say it would be much more legally complex for the administration to try to interfere with visas that have already been granted, and particularly for people already in the U.S. If there is a subsequent change, it will likely seek to prevent further work visas from being issued abroad.
There are also a few open questions about the current impact of the proclamation. For one, it’s not entirely clear what exactly the exemption for “healthcare professionals” intending to immigrate to the U.S. means. Will anyone with a healthcare background qualify? Do they have to be actively practicing? What’s the process to prove that? Also, some attorneys have claimed that applicants for K-1 “fiancée” visas have been told that they are subject to the ban, even though these visas are technically nonimmigrant. This is almost certainly illegal, but this is the sort of confusion that can arise from the president springing a policy at the start of the week and the federal bureaucracy scrambling to have it drafted and implemented days later.
So far, there appear to have been no legal challenges to the policy, but it’s only a matter of time. It’s hard to say how a lawsuit will go. In its decision upholding the final version of the travel ban, the Supreme Court ruled that the president has extremely wide latitude under 212(f) to suspend the entry of any “class of aliens,” for practically any reason, and for any period of time he deems fit. Their rubric is so broad that it probably covers this order as well. That said, it might be difficult to justify the entire world as one “class of aliens” that could harm U.S. interests.
Under the Radar
The Supreme Court makes cancellation of removal more difficult
In a 5-4 decision handed down Thursday, the Supreme Court ruled against Andre Martello Barton in the case of Barton v. Barr, giving the federal government a victory that could make it easier to deport permanent residents. The case (which we covered in depth as part of a special edition) hinged around the so-called stop-time rule, which comes into play when an immigrant is seeking cancellation of removal. This is an option for people who have been found inadmissible or deportable in immigration court, but meet certain criteria including extreme hardship to a U.S. citizen spouse, parent, or child. For green card holders, the criteria also encompass having been a permanent resident for five years and been physically present for seven; the catch is that this presence stops being counted if they commit a crime that makes them either inadmissible or deportable.
In Barton’s case, the government argued that a crime he had committed prior to having been in the country for seven years had made him inadmissible, and therefore he couldn’t access cancellation. Barton countered that he couldn’t be inadmissible because he had already been admitted as a permanent resident, and was not seeking admission to the country at the time. The Supreme Court’s decision will make it more difficult for permanent residents who have a criminal record that reaches the level of inadmissibility but doesn’t reach the level of deportability to stay in the country.
SCOTUS Green Card Ruling Makes it Harder to Stay in U.S. - Bloomberg Law
B/L Premium — Eyes on SCOTUS - BORDER/LINES
Federal judge rules ICE must reduce the population at the Adelanto ICE Processing Center
Following a legal challenge from the ACLU of Southern California, a federal judge in the state ruled that ICE has to dramatically reduce the detained population at the Adelanto ICE Processing Center in California, which currently detains around 1,300 people, by doing three things:
releasing certain detainees, prioritizing those who are over the age of 55, those with preexisting medical or mental health conditions that make them particularly susceptible to Covid-19 complications, those without criminal records, and those with minor criminal convictions, in that order
deporting those who have been issued final orders of removal and have exhausted all appeals for relief
and transferring those who don’t meet the above criteria to detention facilities where they can maintain social distancing
The ruling requires these changes to start by April 27 and be completed by May 4. The issue of transfers raises another significant question: how, short of mass releases, can any ICE detention center create conditions that allow the people held there to practice social distancing? Adelanto is by no means the only facility where detained immigrants aren’t able to maintain a safe social distance from others, as lawsuits filed elsewhere in the country show.
Population of Detainees Must be Decreased to Allow for Social Distancing During Pandemic - ACLU of Southern California
Federal Judge Orders Adelanto ICE Detention Center To Reduce Number Of Detainees - LAist
Coronavirus update: Lawsuit says coronavirus could create 'humanitarian crisis' at Adelanto - The Desert Sun
The Supreme Court will soon decide on DACA’s fate
The Supreme Court heard arguments over the Trump administration’s attempt to end DACA last fall, and a decision is expected to drop soon. As we’ve mentioned before, the court isn’t ruling whether DACA itself was a lawful exercise of executive power, but whether the current administration’s effort to terminate it was proper, and if the court even has the jurisdiction to determine that.
If the court rules that it does not have jurisdiction, or it does but the administration did not break the law in its attempt to end the program, more than 600,000 people will suddenly find themselves at risk of being arrested, detained, and deported in the middle of a pandemic. They’ll also be unable to work lawfully, which would affect both the economy and our healthcare system. An estimated 27,000 DACA recipients are medical professionals; if they lose their work authorization, we’ll have even fewer doctors, nurses, and other healthcare workers able to work during the public health crisis.
There’s also the question of information sharing. This week, ProPublica’s Dara Lind reported that immigration enforcement agencies including ICE have access to DACA recipients’ personal information — despite government claims to the contrary. According to the ProPublica report, which relies on internal government emails obtained under a Freedom of Information Act lawsuit filed by Make the Road New York, ICE has access to databases that disclose DACA recipients’ home addresses and other personal information.
This could mean that the information DACA recipients had to give the government in exchange for protection — their names, home address, and in some cases, the names of their parents and other household members who may be undocumented — could now be used against them.