Week 41: Special Edition—student visa restrictions, children in ICE custody, DACA applications, and USCIS
Immigration news, in context.
This is the forty-first 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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We will be taking a break next Friday, July 24th. We will be back with a new edition the following Friday. Enjoy your weekend, everyone.
This week’s edition:
This week, we’ll be digging into four of the biggest immigration developments:
the latest on the Trump administration’s plan to prevent student visa holders from living in the U.S. if they’re enrolled in online classes, which seems to have been put on hold
the state of ICE’s family detention centers and the ongoing battle to release families from government custody amid the pandemic
the Trump administration’s refusal to accept new DACA applications despite last month’s Supreme Court ruling
U.S. Citizenship and Immigration Services quietly trying to expand its ability to deny work permits
Administration backs down from student visa plan, but may try again
Throughout the Trump administration's single-minded onslaught against all types of immigration — lawful, unlawful; permanent, temporary — few policies have truly broken through to become mainstream stories that provoke strong responses from large numbers of U.S. citizens and institutions. Among them is the administration’s effort to restrict the ability of F-1 and M-1 international students to remain in the country if their educational programs moved online.
This policy was the focus of our edition from last week, at which point public opinion had already turned decidedly against it. As we noted then, ICE — which manages the Student Exchange Visitor Program (SEVP) — was invoking federal regulations that limit the number of online classes a student visa holder can take while maintaining the full course load, reversing a March decision to suspend those limits as a result of the pandemic. The agency was almost immediately sued by Harvard and MIT, followed by a number of states and other universities. Amicus briefs in support of the injunction requests were filed by several large companies, business associations, student government groups, and others. Facing a battery of deep-pocketed plaintiffs and widespread public backlash, the administration did something very rare and decided to voluntarily back down right before oral arguments, reverting to its March directive.
What this means in practice is that online classes can be counted towards the requirements for a full course of study without limit, and a student can even take a fully online course load without issue. This applies for students both in and out of the United States, i.e. students that choose to depart the country and take an online course load from elsewhere wouldn’t be risking their visas under the current status quo. The directive also notes that full school closures related to the coronavirus pandemic, i.e. when not even online classes are available, should not jeopardize a student’s status as long as they intend to resume their studies when available. Schools are required to notify ICE of any procedural changes to instruction within ten business days.
That doesn’t mean this is over. The Wall Street Journal reports that the administration may attempt to roll out a new policy, this time targeting only “newly enrolling” students, i.e. those who were not already in an academic program. That move could be more legally bulletproof, as it removes the argument that the government is ignoring current students’ reliance on the status quo, and generally the courts are more amenable to executive authority in keeping people out than removing them once they’re already present. That might run into the obstacle that the district judge who was overseeing the Harvard/MIT lawsuit has kept the proceedings open, meaning that any further ICE action could immediately land another injunction request on her desk again as part of the same case.
In theory, the president could even use his unilateral authority under 212(f) (longtime readers will recognize that instantly; we’ve written about it plenty) to halt the entry of F-1 and M-1 students. On that note, it’s also worth noting that a stream of recent restrictions issued under 212(f) remain active and have not provoked the same kind of response. Currently, immigrant visas generally remain banned, as do H-1B and L-type visas for applicants abroad (J-type are also restricted for certain categories of applicants). The government has made some concessions, like exempting dependents whose primary applicants are already in the United States on work visas, but these bans all remain active and in litigation.
Deadline to release children from ICE custody extended
Last month, federal judge Dolly Gee ordered ICE to release the more than 100 children in its custody from its three family detention centers across the country by July 17. Gee extended the deadline to July 27 this week after both ICE and the legal team representing the detained children asked for more time to negotiate their release. In her initial order, Gee wrote that the family detention centers “are on fire” due to the coronavirus pandemic. Several detained family members, including children, have tested positive for the virus so far. Now, families will have to stay detained for another 10 days while ICE and the lawyers come to an agreement.
Gee oversees the Flores settlement agreement, a 1997 consent decree that outlines the standards for treatment of migrant children in federal custody. Under Flores, children must be released from detention as expeditiously as possible and must not be detained in excess of 20 days (though this doesn’t apply to the Department of Health and Human Services-contracted shelters that take in unaccompanied migrant children). Initially, Flores was only interpreted as applying to migrant children who arrive in the U.S. alone; during the Obama administration, however, Gee clarified that Flores also applies to migrant children who are detained with their parents. (That ruling came after the Obama administration built new detention centers for migrant families amid a surge in arrivals and kept people detained there for months.)
As Jack Herrera and our Gaby Del Valle previously reported, ICE attempted to implement a “binary choice” form of family separation amid the pandemic. Detained migrant parents were asked to choose between releasing their children to other relatives in the U.S. or staying incarcerated as a family. None of the parents consented to separation. Now it appears that ICE may attempt to separate families again, since Gee’s order only applies to children in ICE custody, not their parents (whom she does not have the authority under Flores to order released). Notably, Prism reporter Tina Vasquez revealed this week that Peter Schey, the lead counsel for the plaintiffs on the Flores settlement agreement, has advocated for the binary choice option before, suggesting that migrant parents agree to “release the child to an auntie” while staying detained themselves. Schey reportedly told other attorneys he and the government had agreed to some form of binary choice; Schey told Prism that parents who don’t want to have their children released without them will likely remain in detention indefinitely.
Trump administration rejects new DACA applications
After the Supreme Court ruled that the Trump administration’s attempt to end Deferred Action for Childhood arrivals violated the law, potential DACA recipients and their lawyers debated whether it was advisable to send in new DACA applications. The program, which was created by the Obama administration in 2012, gives undocumented youth who meet certain criteria a temporary reprieve from deportation. DACA doesn’t confer lawful status in the country, but it does let people live and work in the United States without incident. For this reason, the Trump administration and other conservative opponents have criticized DACA as “amnesty,” even though it doesn’t provide a path to citizenship.
That’s why the administration is now denying new DACA applications—even after the Supreme Court decision. NPR reports that people who have applied for DACA within the last few weeks are having their applications rejected en masse. There are people who were too young to be eligible for DACA before it was tied up in litigation but are eligible now, as well as people who were eligible all along and decided not to apply. While the legality of the administration’s attempt to end DACA was being deliberated in court, both groups were unable to apply for DACA protections. In theory, they should be able to now, but the administration has said it is not accepting new applications and is only renewing existing ones, which defies the court’s ruling.
These categorical denials could mean that the Trump administration is preparing to once again attempt to end DACA. The Supreme Court didn’t rule that the administration doesn’t have the power or jurisdiction to do so—DACA was created through executive discretion, after all—but rather that the way the Trump administration attempted to end DACA violated the law. Specifically, the court ruled that the administration violated the Administrative Procedure Act, a law that requires administrative decisions to have clear and substantive bases and procedures and timelines. The court’s ruling doesn’t preclude the administration from trying to end DACA again. In fact, some have suggested that the justices gave the Trump administration a roadmap for ending the program.
Regardless of whether the administration plans on ending DACA in the future, the program is currently supposed to be in full effect. That means that in addition to renewing existing applications, U.S. Citizenship and Immigration Services should be evaluating new applications and considering them on their merits. Some individual agents may be adhering to the court’s ruling and processing new applications, but by and large, USCIS appears to be completely ignoring the court’s ruling. Last month, USCIS issued a statement claiming that the Supreme Court’s ruling “has no basis in law.” Joseph Edlow, the deputy director for policy at USCIS, told NPR that DACA is an “effective amnesty program,” even though it does nothing of the sort. DACA recipients can still be deported; they are ineligible for permanent residency or citizenship in most cases. And now, potential DACA recipients who thought they could receive the basest protections are out of luck, likely until the administration is challenged in court once again.
USCIS attempt to quietly grant itself huge discretionary powers over employment
One of the most misunderstood functions of the U.S. Citizenship and Immigration Services (USCIS) is the granting of work permits. Work authorization is not itself status, though it is obviously tied to status, and involves a process that is separate from the adjudication of immigration benefits. Some statuses, like lawful permanent residency, automatically confer work authorization, while others, like those in a residency process, those with deferred action, and certain students and workers, must apply for it through USCIS.
A policy memo issued by the agency on Wednesday suggests that USCIS is giving itself discretionary authority to grant or not grant work authorization based on factors determined by individual agents, without an appeals process. The agency’s policy manual was updated to note that employment authorization for those required to apply for it will be granted if “USCIS finds that the positive factors outweigh any negative factors that may be present, and that a favorable exercise of discretion is warranted.” USCIS is not undergoing the process for a formal rule change, but bizarrely asserting that this is pursuant to the rule as already written, despite the fact that it has never claimed to have this authority before. In practice, this could mean that applicants who are otherwise eligible for work authorization could be denied based on some random discretionary factors; even those who were approved for some other discretionary status, such as DACA, could be denied just the work authorization.
The agency’s new interpretation seems blatantly, manifestly in contravention of the actual regulation — 8 CFR § 274a.12(c) — which states that “USCIS, in its discretion, may establish a specific validity period for an employment authorization document” (emphasis ours). You don’t need a JD to see that the discretion granted clearly extends to validity periods only, and not whether or not to grant employment authorization in the first place if the applicant has fulfilled the requirements. Yet it seems in keeping with the general administration trend of trying to confidently push through new policies as if they were legal, and waiting to get sued. The policy memo was just issued two days ago, and we haven’t heard of any discretionary work authorization denials yet, but any taking place would almost certainly trigger a lawsuit.
In a related issue, USCIS appears to be placing not only de jure but de facto limitations on access to work authorization documents. According to a Washington Post column, the agency has scaled back the printing of the actual physical cards necessary to prove employment authorization, as well as so-called green cards for permanent residency. There is now an apparent backlog of 50,000 green cards and 75,000 employment documents, which can hamper the ability of immigrants to work even after they’ve been formally approved.