Week 4: New rules on health insurance for prospective immigrants

Immigration news, in context.

This is the fourth 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.

The Big Picture

Presidential proclamation restricting entry

The News: President Trump signed a new executive action seeking to prevent people from obtaining immigrant visas if they can’t prove they’ll have personal health insurance — or the means to pay for healthcare — within 30 days of their arrival in the United States.

What’s happening?

The main thing to note immediately about the proclamation, which is essentially equivalent in function to an executive order, is that it’s intended to apply “only to aliens seeking to enter the United States pursuant to an immigrant visa” i.e. people who are applying to enter the United States for permanent resettlement under family, employment, or diversity visa categories. As such, it won’t affect people entering the United States on temporary nonimmigrant visas: students, temporary workers, artists, to name a few. It won’t affect people already in the United States who intend to adjust their status to that of legal permanent resident, and there are also exemptions for specific classes of intending immigrants, like adopted children and Iraqi and Afghani nationals who worked with the United States armed forces.

Generally, the order will require an applicant for an immigrant visa to prove that, within thirty days of arrival in the United States, they will be covered by “approved health insurance” or possess “the financial resources to pay for reasonably foreseeable medical costs.” Acceptable insurance includes employer-sponsored and Medicare plans, unsubsidized state insurance marketplace plans, and enrollment in family members’ plan, among others. Excluded are Medicaid (for anyone over the age of 18) and state marketplace plans if they are bought using government subsidies, which are both considered a burden on the taxpayer.

Some confusion has stemmed from the natural association between this policy and the broader ‘public charge’ rule change slated to go into effect next week; the two have similar stated objectives (to prevent immigrants from being a “burden” on U.S. taxpayers) and would likely trip up many of the same people. Public charge even mentions the ability to pay for healthcare as one of the factors under consideration. But they’re entirely different policies that rely on different authorities under the law.

Public charge inadmissibility is specifically codified — under 8 U.S.C. 1182 (a)(4). Meanwhile, the new  proclamation relies on a much more nebulous and expansive power of the president — 8 U.S.C. 1182(f) — to restrict “any aliens or of any class of aliens” from entering the country if their admission would be “detrimental to the interests of the United States.” Despite its wide-ranging applicability, it only allows the president to restrict entry, which is why the order cannot be enforced against people already present in the U.S.

How did we get here?

The same statute, 1182(f), was cited as justification for the so-called travel ban, the most recent version of which bars nationals of Iran, Libya, Somalia, Syria, Yemen, and some nationals of North Korea and Venezuela from coming to the U.S., and which was upheld by the Supreme Court. This illuminates its malleability: the administration is relying on the same text to justify barring people from certain nations on national security grounds and anyone without unsubsidized health insurance on fiscal responsibility grounds.

This particular statute dates back to the Immigration and Nationality Act of 1952, also known as the McCarran-Walter Act. Among other things, the act reinforced the national origins quota system that had been in place since the 1920s — which severely restricted immigration for non-Western European immigrants — and formally codified which types of immigrants were “inadmissible.”

It wouldn’t be a stretch to say some provisions of the McCarran-Walter Act were the result of Cold War hysteria. Communists and anarchists were deemed inadmissible — or deportable, if they had managed to make their way to the U.S. already — as were people who were found guilty of a host of crimes of “moral turpitude,” including sex work, illegal gambling, and drug trafficking. 

Trump isn’t the first president to invoke 1182(f). Every president since Ronald Reagan has issued proclamations barring entry under the statue, with Barack Obama issuing a whopping nineteen, far more than any previous president. However, most were extremely targeted exclusions. For example, one of Obama’s orders barred entry to “aliens who are determined to threaten the peace, security, or stability of Burma in specified ways” and one of Bill Clinton’s orders barred “aliens who formulate, implement, or benefit from policies that impede Liberia’s transition to democracy and their immediate family.”

Prior to Trump, the most expansive orders citing the statute were a pair of similar orders issued by George H.W. Bush in 1992 and George W. Bush in 2002, which both dealt with migrants intercepted at sea on their way to the United States. The 1992 proclamation ordered the Coast Guard to interdict vessels potentially carrying “undocumented aliens,” question those on board, and return most to their point of origin, with some narrow exceptions for refugees. Following a lawsuit, the policy was eventually upheld by the Supreme Court on the grounds, essentially, that non-refoulement and due process considerations didn’t apply in the same way outside of the territory of the United States. The 2002 order expanded on this, giving the federal government authority to detain such migrants (at a facility “located at Guantanamo Bay Naval Base or any other appropriate location”) while they were processed and had any humanitarian claims evaluated.

Despite the breadth of these orders, their impact is dwarfed by Trump’s use of the statute, which could deny hundreds of thousands of prospective legal immigrants, per analysis by the nonpartisan Migration Policy Institute (more on that below). As Vox’s Nicole Narea pointed out, the most prominent anti-immigration think tanks — the Federation for American Immigration form and the Center for Immigration Studies, both founded by the environmentalist and eugenicist John Tanton — have been pushing for such reductions in legal immigration for decades, and this appears very much a part of that effort.

What’s next?

The proclamation isn’t going into effect immediately; in fact, no framework exists for verifying and enforcing its requirements. The Secretary of State is instructed to develop “standards and procedures” so consular officers abroad can incorporate the new requirements into their adjudications of immigrant visas, starting on November 3rd. 

The requirements won’t apply to “any alien holding a valid immigrant visa issued before the effective date of this proclamation,” but the text doesn’t mention applications in progress, meaning the administration will probably try to apply the new standard to everyone not already approved, even if they’re near the end of their process. It’s not clear what exactly “reasonably foreseeable medical costs” will be interpreted to mean, but it’s safe to say a very tiny minority of immigrant visa applicants will be able to demonstrate they can pay for standard medical costs upfront, given how expensive medical care is in the U.S.

The number of potential immigrants who could be ensnared by the requirements might be huge. Using data from the American Community Survey along with its own analytic tools, the Migration Policy Institute estimated that about 65 percent of immigrants arriving in the United States in the last three years — about 375,000 people — would have been excluded under the policy, an eye-popping number that suggests an intent more in line with shutting down legal immigration than protecting the U.S. taxpayer.

It’s almost certain that legal groups and states will sue the administration over the proclamation, and that the plaintiffs will argue that this was an arbitrary and capricious decision which will force federal agencies like the State Department to adopt major changes outside the normal processes of federal rule-making. Indeed, the government has essentially sprung a massive shift to the immigration adjudication system with an effective date less than one month in the future, with no prior public comment period. There’s a decent chance of an injunction, and if this gets to the Supreme Court, the administration won’t be able to rely on a national security rationale as it did with the travel ban, nor claim that they are controlling illegal immigration, given the order’s focus on intending legal immigrants.

Under the Radar

Border apprehensions hit near-record high in FY19
The Department of Homeland Security released border apprehension data for the 2019 fiscal year, which ended on September 30. Approximately 977,500 people either presented themselves at ports of entry or were apprehended by border agents in FY19 — an 87% increase from the previous fiscal year’s figure of 521,000.

There are some issues with the data, though. At a press conference on Tuesday, acting CBP commissioner Mark Morgan admitted that some migrants enrolled in the Migrant Protection Protocols may have been double-counted in August. The error seems to stem from the fact that migrants on the MPP docket not only have to present themselves at ports of entry on the day of their hearings in the U.S. but are also processed — and temporarily detained — by CBP before and after their hearings. 

Even though overall apprehensions are up, there’s a clear downward trend. While the administration claims this is proof that its deterrence strategy is working, there are a few more accurate explanations. There's metering, for one, which limits the number of people allowed to ask for asylum at ports of entry each day. There’s also the fact that the Mexican government has stepped up enforcement along its own southern border, which has in turn limited the number of migrants who actually make their way to the U.S.

Judge changes course, allows GEO Group pay lawsuit to continue

After having indicated that he would dismiss the case last month, U.S. District Judge Robert Bryan of the Western District of Washington reversed coursed and allowed the continuation of a lawsuit arguing that immigrant detainees of the private detention company GEO Group should be paid minimum wage for their work. The 2017 suit was brought by Washington Attorney General Bob Ferguson, who claimed that the civil detainees at a GEO facility in Tacoma should be paid the state minimum wage of $12 an hour for custodial and kitchen work they were performing, as opposed to the $1 a day the company was providing.

After GEO attorneys had tried multiple times to have the case dismissed, Judge Bryan finally relented when the Justice Department got involved and argued that demanding a minimum wage for federal detainees that state civil detainees were not themselves paid would discriminate against the federal government. However, he changed course following a new argument by Ferguson’s attorneys that the standard only applied to private facilities, and therefore was not discriminatory. If the judge were to rule against GEO, we might expect to see similar lawsuits seeking locally appropriate wages for the thousands of detainees held in private detention centers around the country.

Next Destination

Asylum ban removals may have begun, or is beginning

At a press briefing on Tuesday, Mark Morgan, the acting commissioner Customs and Border Protection, said the administration would be moving to implement the so-called asylum ban — a policy of denying asylum protections to migrants who had crossed through any country on their way to the United States without applying for asylum there first — this week. The Supreme Court allowed the policy to go forward in September, overturning an injunction issued by a district court judge while the policy is litigated.

Morgan incorrectly said the policy would allow his agents to deny entry to asylum-seekers. In fact, they would still be allowed to make asylum claims, but would be denied if U.S. Citizenship and Immigration Services (USCIS) determined that they passed through another nation without seeking asylum there first. 

It’s not the first time Morgan has gotten this mixed up. Nevertheless, it’s likely that the administration either will begin removing people based on the ban, or has done so already. Official guidance had already been issued to asylum officers conducting credible fear interviews. This guidance says that people who did not apply for asylum in countries they passed through on their way to the U.S. and didn’t meet the higher burden of evidence for withholding of removal or protections under the Convention Against Torture would be ineligible for asylum.

Once the Supreme Court allowed the policy to go forward, asylum officers could begin following this guidance, meaning it’s entirely possible that some individuals subject the ban may have been deported already (though none that we know of specifically). If not, it will likely happen soon *

Public charge could go into full effect, or partial effect, or not at all next week

On Monday, the American Immigration Lawyers Association (AILA) filed yet another lawsuit against the federal government over its plan to implement the public charge rule, this time asking the U.S. District Court for the District of Columbia to force USCIS to continue accepting current visa and residency-related forms for sixty days past the policy’s start date of October 15. As of the time the lawsuit was filed, USCIS had yet to publish the new full new forms that would be used under public charge, giving applicants and their attorneys a week’s time to familiarize themselves with the new evidentiary requirements before they were implemented. USCIS finally posted them on Wednesday, just six days before their effective date.

If this injunction were granted, it would delay but not ultimately stop the rollout of the public charge rule. In the meantime, there are nine additional federal lawsuits seeking to stop the policy altogether, and having it delayed could buy them some additional time to seek a more sweeping injunction. Adding to the confusion, last night the State Department published its own rules for implementing public charge at its consular offices abroad, also effective October 15. It’s not entirely clear how these will factor into the existing litigation around the policy.

The House Committee on Oversight and Reform sent issued a memo this week indicating that it planned to issue subpoenas to acting USCIS Director Ken Cuccinelli and acting ICE Director Matthew Albence over the messy transfer of authority of medical deferred action. In August, USCIS had abruptly stopped processing deferral requests for humanitarian reasons, leading many observers to believe the practice had been completely terminated; it later announced that ICE would be taking over the decision-making process, and humanitarian deferred action would continue. Committee Chairman Elijah Cummings wrote that the committee wanted answers on how these requests would be handled going forward, and would seek to have the two acting directors testify on October 17.

* A previous version of this section read that the implementation of the policy would likely begin soon. It was amended after a reader pointed out that it’s possible removals have already begun, since nothing was constraining them.