immigration policy update -...
TRANSCRIPT
Who We Are
National Immigration Law Center (NILC)u Our mission is to defend & advance the rights & opportunities of low-
income immigrants and their family members.u We combine policy analysis and advocacy, impact litigation and strategic
communications to protect immigrants’ rights and to advance their access to health care, education and economic opportunity.
Disclaimers
u Things are changing fast! uThere are a lot of unknowns.uWe are sharing the information we have at this time.
u We are providing general information, not legal advice
Context
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Context: The Current Environment
u The Administration’s policy decisions have created a climate of fear in immigrant communities
u People with status worry about their status being revoked, or about the Government having their information
u Implications - Chilling effect in accessing needed services• People are afraid to leave their homes• People asking to be dis-enrolled from Medicaid and other programs
White House Immigration Platform
u Build a wallu Deport all unauthorized immigrantsu Eliminate the diversity visa lotteryu Reduce family-based immigration (“chain migration”)u Implement a ‘merit-based’ immigration system
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How did we get here?
u The Administration’s immigration policies align with the agendas of organizations that advocate for reduced levels of immigration, including the Center for Immigration Studies and the Federation for American Immigration Reform
u Prior to the election, CIS produced a list of 79 administrative actions the President could take without Congressu While the Administration has not been successful in implementing its
immigration agenda through legislation, it has taken some of the actions identified by CIS
u These actions affect both unauthorized immigrants and individuals who are lawfully present
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Executive Orders on Enforcement
• Border Security order• Build the wall • Increase number of border patrol agents• Increase the number of people detained pending a hearing on immigration charges• Build more prisons near the border
• Interior enforcement order• Expands priorities for deportation • Increase number of ICE agents• Promote ICE cooperation with local law enforcement• Punish sanctuary jurisdictions• Increase criminal prosecutions for unauthorized entry
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Current Enforcement Practices
u The number of immigration arrests has increased u Particularly arrests of people with no criminal convictions
u ICE is engaging in the following enforcement practices:• Going to homes and workplaces to arrest people, both in individual
actions and through raids• Making “collateral” arrests - ICE is arresting people who happen to be
in a place where they are looking for someone else.• Arresting people at USCIS appointments.
Photo courtesy of ICE
Attorney General Policies
The Attorney General has adopted policies that limit immigration agents ability to exercise discretion to focus on high priority casesICE/CBP:
u Increased use of expedited removal, which allows summary deportation of many persons apprehended within 100 miles of the border
u ‘zero tolerance’ policy of charging anyone who enters U.S. without authorization between ports of entry
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Attorney General Policies – Immigration Courts
u Immigration Courts (part of DoJ)u Judges have been given quotas for case completion, with results tied to
their performance reviewsu Ended judge’s ability to use administrative closure to take a case off
the court’s docket to allow for completion of other proceedings that would affect the outcome of the case
u Limited ability to grant continuances (postponements)u Re-assigning cases when he thinks judge will rule in favor of petitioner
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Humanitarian Programs
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Asylum
Asylum is humanitarian relief granted to a person who is in the U.S.• Similar to refugee status, but refugee status is granted abroad• A person must come to the US to apply for asylum• An asylee can become a US citizen
To qualify for asylum, a person must show that he or she:1. has been persecuted or has a well-founded fear of persecution, and2. the persecution is because of the person’s race, religion, nationality,
political opinion or membership in a particular social group
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What Changed?
u Asylum applicants who were survivors of domestic and gang violence have been able to claim that they were members of a particular social group, as women in countries with governments that fail to protect women
u Sessions has instructed immigration judges to stop granting asylum on this basis, stating these are private crimesu Depending on the circumstances of a specific case, some people may be eligible
for asylum based on their individual circumstances or for other immigration remedies
u Sessions also vacated an administrative decision that gave asylum applicants a right to testify before an immigration judge
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Refugee Admissions, Processing Slowdown
u Administration announced reduction in refugee admissions from 110,000 to 45,000
u Additional ‘vetting’ of applicants has slowed processing of allimmigration applications and documents u International Refugee Committee projects that, under current trends,
only 21,000 refugees will be resettled in FY2018u The Administration is planning further reductions in refugee
admissions in FY 2019
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Temporary Protected Status
u TPS is humanitarian relief granted to people who are in the U.S. when an event occurs in their home country that makes it unsafe to returnu TPS is granted for renewable periods of 6-18 monthsu The Administration has declined to renew TPS for nearly all
countriesuMany TPS recipients have been long-time residents of the US, with
homes, businesses and U.S. Citizen childrenuDocuments show that DHS was aware that conditions in Haiti remain
unstable when it made its decision to terminate TPS for Haitians
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Ended Obama Policies Protecting Young Immigrants
u The Central American Minors program allowed parents of children in El Salvador, Honduras and Guatemala, who were residing lawfully in the U.S., to apply for refugee status or humanitarian parole for their childrenu Upon terminating the program, DHS rescinded parole from over 2,700
children
u Deferred Action for Childhood Arrivals (DACA)
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DACA
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DACA - Deferred Action for Childhood Arrivals
u Recipients get renewable two-year period of work authorization and relief from immigration enforcementu No path to citizenship or permanent status
u Must meet requirements re: criminal history/public safety, and prove that:u they arrived in the US before age 15, u resided continuously since June 2007, and u met educational/military service requirements
u Sessions announced termination of program in September, 2017
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DACA litigation
u As a result of several court rulings, anyone who has DACA, or had DACA in the past, can apply for a renewal
u Federal courts in DC, California and New York have all ruled that the government’s termination of DACA was improper
u Case brought by Texas and six other states threatens a ‘circuit split’ and a hearing at the Supreme Court
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DC Circuit
u The NY and California courts ordered that recipients be able to renew their DACA, DC District Court also ruled that the government accept initial applications u Order would have gone into effect on August 23rd
u Texas case was argued on August 8th.
u Judge asked states why they sued six years after establishment of DACA, states responded because of the DC Circuit’s order to restart DACA applications
u The Government in the DC Circuit case had moved to stay the portion of the judge’s order that reinstated new DACA applications
u Plaintiffs made a strategic decision not to oppose the motion in a move to delay the Texas case and avoid a circuit split.
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What does it mean?
u People who are eligible to renew their DACA should do it as soon as possibleu Consult with a lawyer or BIA accredited representative
uhttps://www.ailalawyer.com/
u Resources: unitedwedream.org
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Family Separation
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How did we get here?
u Individuals who entered the country without authorization were charged criminally and detained under the Sessions/Homeland Security ‘zero tolerance’ policy u There is evidence that some were denied the opportunity to apply for asylum
u Under the 2015 decision regarding the Flores settlement, children cannot be held in family immigration detention for more than 20 days
u DHS treats the children as unaccompanied minors and transfers them to the Office Of Refugee Resettlement within the Department of Health and Human Servicesu The two agencies had no system for maintaining records that were needed to
reunite the family members
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Update
u As many as 3000 children have been separated from their parents as a result of the zero-tolerance policy; at least 100 are under age 5
u On June 26th, a court ordered DHS to reunite the families u unless the parents were ineligible
u The deadline has passed and many families are not reunitedu DHS deemed over 450 parents ineligible because they had already been deported
without their children
u At least some were coerced to agree to voluntary departure, or didn’t understand what they were signing
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What’s Next? Public Charge
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Public Charge: Background
• A Public Charge is a person dependent on the government for financial and material support
• A person deemed likely to become a public charge can be denied permission to enter the country and permanent resident status
• The likelihood that a person will become a public charge is assessed: • when they apply to enter the US and• when they apply to become a lawful permanent resident (LPR)
uUnder current law, there is no public charge test when an LPR applies for citizenship
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Who is Subject to Public Charge?
u People applying to enter the U.S.
u People whose status allows them to become LPRs
u Many immigrants are exempt from Public Charge, including:u Refugees and asylees; u survivors of trafficking and other serious crimes; u self-petitioners under the Violence Against Women Act; andu special immigrant juveniles
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Statutory Public Charge Test
u Whether a person is likely to become a public charge is based on all of the facts relevant to their ability to support themselves.
u Immigration agents are required by statute to consider:u ageu health, u financial resources, u dependents, u skills and work experience
u Other relevant factors may be considered
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Public Charge - Benefits
• Other factors relevant in a public charge test include receipt of public benefits
• Under rules in effect since 1999, only two benefits can be considered:• Cash assistance for income maintenance• Institutionalization for long-term care at government expense
• USCIS is developing new Public Charge regulations• Drafts leaked to the press indicate a substantial expansion of the benefits considered
• The State Department has already revised the public charge provisions of the Foreign Affairs Manual
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The Foreign Affairs Manual
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Foreign Affairs Manual
• A public change assessment is conducted when a person applies for permission to enter the U.S. at a consulate abroad• refugees and other humanitarian entrants are exempt from public
charge• The Foreign Affairs Manual (FAM), published by the State Department,
provides guidance to consular officials• The public charge section of the FAM was updated in January, 2018• Forms for applicants and sponsors have not changed
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FAM – What Changed?
• Public charge definition not changed, but:
• Affidavit of support is not enough on its own
• Consider age, health, family status, financial resources, skills
• Use of benefits may be considered
• Inquire into sponsor’s ability and willingness to support
• Look at relationship - family member?
• May consider benefits used by sponsors or their family membersØ Remember: Affects only decisions made by consular officials abroad
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Impact
• some reports of denials or requests for additional evidence • more scrutiny of affidavits of support by joint sponsors
• relationship to applicant - not benefits
• FAM could be revised again, e.g. if policy for officials in US changes.
We are monitoring this issue – please let us know what you hear!
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The Leaked Draft Regulation
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Public Charge - Proposal
The proposed rule would authorize agents to consider benefits used by the immigrant or a dependent family member, including a citizen
Benefits listed as implicating public charge include:• Non-emergency Medicaid• ACA Premium tax credits• SNAP • Housing assistance• Refundable tax credits like EITC
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Proposed changes to Public Charge
Benefits identified as excluded from a Public Charge determination include:u ‘Earned benefits’ tied to work or military service: Social Security, Medicare,
unemployment, workers’ compensation and public pensionsu Emergency and disaster relief available to the community as a wholeu Public health services (immunization and testing and treatment of
communicable disease) u School-based nutrition services, public education including Head Startu Loans, including student loans
u Other benefits received before the effective date of a new rule (no retroactivity)
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Public Charge - Proposal
Adds heavily weighted positive and negative factors Adds standards and evidence to statutory factors:u Age - defines working age as 18 - 61u Health - whether the person has unsubsidized insuranceu Financial resources – income and assets, credit reports and scores, whether
person or dependent has applied for any benefit or immigration fee waiveru Dependents - includes people who live with immigrant and benefit from
income even if not dependent for tax purposesu Skills and work experience – includes assessment of English proficiency
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Impact
u People are already withdrawing from, and avoiding, benefits because of
fears about the proposed rule – human impacts
u Food banks and other charities will need to cope with increased demand
u Health care providers will experience an increase in uncompensated
care and a loss of financial stability
u Medicaid is the largest source of funding for community health centers
u The members of America’s Essential Hospitals (AEH) have an average operating
margin of just 3.2 percent, which would be negative without Medicaid and
Disproportionate Share Hospital Funds.
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Timeline
• The Department of Homeland Security indicated that it planned to publish the proposed regulations in July, 2018.
• The proposed regulations have not been published and are currently at the Office of Management and Budget (OMB)
• After OMB review is complete they will be published in the Federal Register
Ø Federal law requires agencies to accept public comments on proposed rules for at least 30 days.
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Remember!
u This is just a preliminary draft!
u Important statutory factors cannot be changed by regulation:uPublic charge is assessed when a person applies to enter the US
and to become a permanent residentuAll relevant factors must be considereduCategories of immigrants who are exempt
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Resources42
• How to Talk About Pubic Charge With Immigrants and Their Families
• Things to Keep in Mind When Talking to Immigrant Families About Benefit Programs
• Changes to Public Charge in the U.S. State Department Manual
• Public Charge: A New Threat to Immigrant Families
• DACA: UnitedWeDream.org
• ProtectingImmigrantFamilies.org
Protecting Immigrant Families Campaign
u Protecting Immigrant Families, Advancing Our Future Campaign
u Co-chaired by NILC and CLASP
u Over 150 organizational members
u Focus: defending and protecting access to health care, nutrition
assistance, and other vital economic supports for low-income immigrants
and their families
u Short-term goal: generate 100,000 comments on the proposed public
charge regulations
u Sign up at this link or on protectingimmigrantfamilies.org
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