The Golden Door: September 2019
Legal and Policy Issues
We are closely monitoring state and federal immigration law and policy. Please check our social media accounts for more frequent updates.
September 27, 2019, was a momentous day for immigrants' rights. Courts across the nation issued decisions in vital cases concerning expedited removal, the detention of immigrant children, and ICE overreach.
Court Temporarily Stops Expanded Expedited Removal
As you may remember, the administration announced that it will significantly expand the amount of people in the United States who can be deported without a hearing. Known as "expedited removal," this fast track process for deportation applies to some undocumented individuals. This procedure previously only applied to individuals who had been here less than two weeks and were in the "100 mile zone" along the border. Now, the government has attempted to extend expedited removal to the entire United States for some undocumented immigrants who have been in the country less than two years.
US District Judge Ketanji Brown Jackson issued a preliminary injunction that temporarily stops the government from enforcing this draconian rule. Judge Jackson stated that the administration's decision seemed arbitrary and capricious. She explained, "[p]ut in common parlance, if a policy decision that an agency makes is of sufficient consequence that it qualifies as an agency rule, then arbitrariness in deciding the contours of that rule — e.g., decision making by Ouija board or dart board, rock/paper/scissors, or even the Magic 8 Ball — simply will not do."
We agree. The administration issued an "emergency" rule that would have forced any person stopped by immigration enforcement officers, anywhere in the country, to prove that they are not subject to expedited removal. There can be no doubt that at least part of the intent of this rule change was to increase fear and anxiety in our immigrant communities. We are hopeful that this rule will eventually be permanently enjoined from ever taking effect.
Court Says Administration May Not Indefinitely Detain Children
In August, the Trump administration announced a regulation that would allow for the indefinite detention of immigrant children and families, including asylum seekers. US District Judge Dolly Gee ruled Friday that this rule would violate the Flores Agreement. The Flores Agreement is a judicial settlement dictating standards concerning the treatment of children in immigration custody, and preventing children from being jailed for more than 20 days.
The court's order striking down this rule stated that the administration may not ignore the legally binding Agreement simply because they do not "agree with its approach as a matter of policy."
Research shows that detaining children causes lifelong trauma and harm. More detention is certainly not the answer, especially when alternatives to detention work so well. This is a huge win for asylum seekers and immigrant children.
Court Orders ICE To Stop Deportation Orders Based Solely On Faulty Database
Immigration and Customs Enforcement (ICE) relies upon "detainers" (immigration holds) in order to make many immigration arrests. A detainer is a request made to police to keep arrested people in custody for up to two days beyond the time they would have been held otherwise in order to give ICE time to decide whether to detain the individual. These detainers violate due process by often keeping people in custody with no charges pending.
US District Judge Andre Birotte Jr. issued a permanent injunction in Gonzalez v. ICE barring ICE from relying on error-ridden electronic databases to issue those detainers. The court found that many US citizens are vulnerable to false arrest, and non-citizens with lawful status have also been wrongfully detained due to ICE's reliance on these databases. The decision applies to ICE detainers issued out of the Central District of California, including those from a huge ICE center that issues detainers within California and to 41 other states. The decision also blocks ICE from issuing detainers in states where there is not an explicit law on the books that would authorize a civil immigration arrest on a detainer.
This ruling will go a long way toward protecting immigrants' civil liberties and holding the government constitutionally accountable.
Refugee Resettlement In Danger
The administration has drastically cut refugee admissions in the United States. Only about 30,000 refugees are expected to be resettled in 2019, down from 110,000 in 2016. Last week, the administration announced that it would like to cap next year's refugee admissions to 18,000 people, which is a shockingly low number.
The president also issued an executive order stating that refugees can only be resettled in jurisdictions in which BOTH the state and local governments have consented to receive refugees. This would allow states and/or local jurisdictions to refuse the entry of refugees, and would virtually guarantee that drastically less than 18,000 refugees will actually be resettled here.
The United States is essentially shutting its doors to those fleeing violence and persecution, even while worldwide refugees are at a record high. This is a shameful dereliction of our duty.
Asylum Law Updates
Supreme Court Decision Allows Asylum Ban To Continue
The Supreme Court dealt a devastating blow to asylum law this month. In Barr v. East Bay Sanctuary Covenant, the Court ruled that the Trump administration can temporarily enforce its rule that requires asylum seekers to request asylum in any third country they pass through on their way from their home country to the US-Mexican border. This will essentially block anyone from any country other than Mexico from seeking asylum at our southern border. Litigation over the rule is ongoing, however, and it is possible that eventually a final decision will strike down the rule.
This rule, which was issued without a notice and comment period, flouts established asylum law. Federal law says that asylum claims can be denied only if someone has been "firmly resettled" in a third country or the US has signed a "safe third country" agreement with that country.
While many articles are framing this as a ban on solely Central American families seeking asylum, we know that families fleeing violence from countries all over the world make the dangerous journey to our southern border to seek safety. This ruling will put many families in danger as they are turned away at our border.
This only impacts individuals who entered the US on or after July 16, 2019, and thus does not affect most of those who were staying at the Expo. However, it is important to acknowledge that if Maine's newly arrived families had entered the country on or after July 16, 2019, they would be unable to apply for asylum under this policy.
Administration Announces Cruel Policy of Returning Families To Mexico
Last week, the Department of Homeland Security (DHS) announced that it would no longer be releasing families who cross at the southern border into the US - rather, families will be forcibly returned to Mexico. Even if they are seeking asylum, our government will force them to stay in Mexico under the so-called "Migrant Protection Protocols."
This unfounded policy is both cruel and unrealistic. Asylum seekers who have been sent back to Mexico have been robbed, kidnapped, raped, tortured, and killed. While Mexico does have an asylum process, it only has 48 staff members nationwide and could never keep up with the amount of asylum seekers the US is sending to them. Asylum seeking families who are forced to wait in Mexico essentially have no access to attorneys, are forced to wait in overcrowded shelters, and have very few, if any, employment opportunities.
We will keep you updated on further developments.
Administration Wants To Make Work Permits Even More Difficult To Obtain
The administration has proposed a new rule which would make it harder for asylum seekers to get work permits. Currently, individuals seeking asylum can apply for a work permit after their asylum application has been pending for 150 days. They should then receive their work permit 30 days after that.
The proposed rule would eliminate the agency's 30 day deadline. The administration claims that it is attempting to build in more time for the government to vet applicants. In reality, this is another attack on refugee and asylum seeker protections. By eliminating the 30 day deadline, we worry that people seeking asylum may never receive a work permit for the entirety of their asylum case, which we know can take anywhere from many months to several years -- or even longer.
This is just a proposed rule and is not yet in effect. Comments are due November 8, 2019. You can comment in opposition to this proposed rule here.
Public Charge Rule Call To Action
The administration finalized its "public charge" rule in August 2019. “Public charge” is a test to see if someone is likely to become dependent on specific government programs. The government uses this test when someone applies for a family-based green card or certain visas.
Right now, the only programs that are a part of the public charge test are: cash assistance (like TANF, SSI, and GA) and institutionalized long-term care (like living in a nursing home) through Medicaid. The new rule will add programs like SNAP, Section 8 housing and housing vouchers, and non-emergency Medicaid to the benefits that, if received by the applicant, could make it harder to get a family-based green card.
Moreover, the administration has added many "negative factors" to the public charge determination -- including not having a high income, not speaking English, being under 18 or over 61, or having a disability or medical condition. Go to www.ilapmaine.org/public-charge for more information.
REMEMBER: Refugees, asylees, asylum seekers, and other humanitarian statuses are exempt from the rule. The rule does NOT impact people with green cards who are applying for citizenship. Under the final rule, only receipt of benefits by the individual - not their family members - is considered.
If this rule is allowed to go into effect on October 15th, it will have a devastating impact on family immigration in Maine and all over the country. We should be defined by how we contribute to our communities—not by how much money we have.
Both the House of Representatives and the Senate have introduced legislation that would take the teeth out of this cruel rule by refusing to allow federal money to be used to prevent the reunification of families just because they are not wealthy.
Representative Pingree is a co-sponsor of the "No Federal Funds for Public Charge Act of 2019". Call her and thank her for her strong and consistent support for Maine's immigrant community. If you are in Representative Golden's district, call him and urge him to co-sponsor this bill.
Representative Pingree: (202) 225-6116
Representative Golden: (202) 225-6306
Call both of our Senators and ask them to co-sponsor, or at least support, the "Protect American Values Act."
Senator Collins: (202) 224-2523
Senator King: (202) 224-5344