US Policy Developments: March 2020 – July 2020

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US Policy Developments: March 2020 – July 2020

This policy summary was last updated on July 31, 2020.

Immigrants in the United States, regardless of legal status, contribute significantly to the economy, to the social fabric of our nation, and to the nation’s response to the pandemic. They also are disproportionately impacted by the COVID-19 pandemic and should receive support – as integral members of US communities – to protect and sustain themselves and their families. The following summary chronicles US policy developments that impact the well-being of immigrants during this crisis. It covers legal immigration, refugee policies, public assistance, enforcement, due process and immigration benefits, labor issues, and legislative developments. CMS will update this page regularly as the pandemic develops.

New Developments July 17-July 31

Asylum. A July 29, 2020, report by the International Rescue Committee (IRC) details how the Trump administration has used the COVID-19 pandemic to shut down access to asylum in the US. Between March and June close to 70,000 asylum seekers have been expelled at the southern border because of public health reasons. READ MORE.

Visa Categories. In guidance issued July 24, 2020, the Trump administration barred international students from traveling to the US to attend school if all of their classes are conducted online. This new policy primarily affects first-year undergraduates and graduate students. The Trump administration previously proposed a rule to require international students residing in the US to leave the country if all their classes were digital, but was withdrawn after strong opposition to it from colleges and universities. READ MORE.

Public Charge. On July 29, 2020, a New York federal judge ruled that the Trump administration’s February 2020 public charge rule would not apply during the pandemic to immigrants applying for entry into the United States or legally residing in the United States. The rule denies immigration benefits to immigrants it deems likely to become a “public charge” based on their use of certain public assistance programs.

A group of states, led by New York, filed suit in the Southern District Court of New York in May to temporarily suspend the rule during the COVID-19 pandemic. Immigrant advocates hailed the injunctions as crucial to ensuring survival for vulnerable immigrant families and stopping the spread of COVID-19 in US communities. It is likely that the Trump administration will appeal the decision to a higher court. READ MORE.

Detention. On July 22, 2020, a federal judge in Washington, DC, denied a request from immigrant rights organizations to order ICE to release families in detention because of the threat of COVID-19. ICE is currently under an order to release children who are with their families from detention but has not done so because parents of the children have not consented to the release. Advocates have severely criticized this approach, arguing that it provides a cruel choice to parents between either keeping their children in detention or releasing them to family or foster care.

In Virginia, the governor and two US Senators have asked the CDC to intervene in a COVID-19 outbreak at the immigration detention center in Farmville, Virginia, where 262 undocumented immigrants have tested positive for the virus due to crowded conditions. The number is three times the number of cases than other detention centers across the country. According to ICE, as of July 29, 2020, 944 immigrant detainees with coronavirus are in custody, with over 21,000 persons still detained. Three detainees have died and nearly 3800 overall have tested positive since the beginning of the pandemic.

Immigrant rights advocates have filed suit to halt ICE from placing unaccompanied children—some as young as 1 year old—in hotels pending their deportations. They argue that hotels are not safe for children and that child shelters run by HHS, which are more secure, are at 7 percent of capacity. ICE has been deporting unaccompanied minors without asylum hearings for several months, citing public health reasons. READ MORE.

Processing of Benefits. On July 24, 2020, USCIS announced it would delay the furlough of as many as 14,000 employees planned for early August until the end of the fiscal year, citing revised revenue estimates. At the same time, on July 31, 2020, USCIS issued a new fee schedule which significantly raises the fees charge for certain benefits. The new fee schedule could put certain benefits out of the reach of immigrant families, especially those struggling during the COVID-19 pandemic. READ MORE.

Essential Workers. The Trump administration issued a memorandum on July 28, 2020, denying the acceptance of new DACA applications, despite a recent Supreme Court ruling blocking its attempt to end the program. Several studies have shown that many DACA recipients work as essential workers, including health-care workers, during the pandemic. Proponents of the program stated that the memorandum contradicts the Supreme Court ruling and effectively ends the program in the long-term. READ MORE.

Legislative Developments. Republicans in the US Senate unveiled a $1 trillion stimulus package July 27, 2020, which includes $3 billion for USCIS and CBP but does not include stimulus checks for mixed status families in which one spouse does not have a Social Security number. Senator Marco Rubio (R-FL) and Senator Thom Tillis (R-NC) have introduced legislation to make eligible a family with one spouse without a Social Security number, but it is unlikely to be considered on the Senate floor.

In May, the US House of Representatives passed the $3 trillion HEROES Act, legislation which would make mixed-status immigrant families eligible for stimulus checks and provide Medicaid coverage to immigrants for COVID-19 care. The US Senate adjourned for the July 31, 2020, weekend without agreeing to a compromise between the two bills.

The Republican stimulus bill also includes $3.8 billion in funding for the Department of Defense (DOD) to replace funds diverted by the Trump administration to build a border wall between the US and Mexico. On July 31, 2020, in a 5-4 decision the Supreme Court upheld the administration’s use of DOD funds to construct the border wall. READ MORE.

Earlier Developments

Legal Immigration | Refugee Admission | The Public Charge Rule | Enforcement | Due Process | Essential Workers | Legislative Developments

Asylum

On March 20, 2020, the Center for Disease Control (CDC) issued an order, based on Sections 362 and 365 of the Public Health Service Act, which prohibits for public health reasons the entry of certain individuals, regardless of their countries of origin, who require processing at the Mexican and Canadian borders. According to the order, this would prevent overcrowding at points-of-entry and border patrol stations, thus limiting the spread of COVID-19. The United States has extended the order several times, and it is now in effect until August 20.

The order applies to individuals without valid documents, including asylum-seekers and other vulnerable groups. Asylum-seekers who present themselves to US border authorities at the US southern border are being turned away. Thus, this measure severely limits access to asylum in the United States. Immigrant rights organizations and faith-based groups have denounced the policy, and health experts have also criticized it.

Unaccompanied alien children, who are not subject to immediate deportation under the Trafficking Victims Protection Reauthorization Act (TVPRA) of 2008, are also reportedly being detained and sent back under the CDC directive. The TVPRA of 2008 exempts unaccompanied alien children from noncontiguous countries from detention at the border longer than 72 hours and expedited removal.

Many public health experts have pointed out that closing a border prior to the introduction of a virus to a population might prove effective. However, the pandemic had been spreading within the United States for many weeks prior to the order. Moreover, at the time the order was issued, the United States had a much higher rate and number of COVID-19 cases than Mexico and Central America.

In addition, COVID-19 can spread in migrant shelters and in the camps that have formed in Mexican border cities as a result of the Migration Protection Protocols (MPP), which requires asylum-seekers to wait in Mexico during the pendency of their US cases. The United Nations Office for the Coordination of Humanitarian Affairs (OCHA) has warned for months that persons under MPP are living in “unhealthy conditions with poor drains and inadequate drinking water and health services.” More than 60,000 asylum-seekers live in limbo and in danger on the Mexican side of the border because of MPP. They have experienced violence, kidnapping, and other forms of abuse, while those residing in camps or shelters risk contracting COVID-19. Asylum hearings for person subject to MPP have been postponed until select US and Mexican states meet health and reopening criteria.

The Trump administration has also suspended travel from China, the Schengen area of Europe, England, Ireland, and Iran, preventing nonimmigrants and potential asylum-seekers from entering the country. Yet asylum-seekers often use air travel to escape persecution.

As of April 10, 2020, the Trump administration had virtually shut down the US asylum system, returning asylum-seekers to Mexico without due process. The Border Patrol had also denied entry to over 10,000 asylum-seekers, including more than 400 children. As a result, temporary camps on the Mexican side of the US border – which are rife for the spread of COVID-19 – have been growing.

On April 23, 2020, several organizations, including faith-based groups, submitted comments to an interim final rule by the Center for Disease Control which closes the border to asylum-seekers. In their comments, opponents cited several laws that the rule violates, which provide for due process for asylum-seekers. They also argued that there exists no public health rationale for the asylum ban.

Evidence is growing that the administration is using the pandemic to halt asylum protection at US borders.

The Trump administration continues to build a border wall during the pandemic, despite a lack of authorization from Congress and disruption to life on the border. The administration has proposed painting the wall black at a cost of $500 million. On May 8, 2020, DHS awarded a $275 million contract to a construction company to begin building a wall in Texas in January 2021. A $1.3 billion contract to build 42 miles of a border wall—and paint it black—in southern Arizona was awarded to a North Dakota firm favored by President Trump on May 19, 2020. The wall will be built in mountainous terrain to the west and east of Nogales, Arizona.

US Customs and Border Protection (CBP) expelled 21,000 migrants at the US-Mexico border during March and April, including 901 families with children and 899 unaccompanied minors. Because of the original Center for Disease Control (CDC) directive, only 85 migrants were referred to a credible fear interview and only four were allowed to stay in the United States between late March and late May.

The Trump administration published a proposed rule in the Federal Register on June 15, 2020 that would eviscerate the asylum system. Among other changes, the rule would severely restrict claims based on gender-based violence, gang threats, and torture by government officials. It also would grant immigration judges increased authority to dismiss asylum claims. Advocates quickly condemned the rule, stating that it would deny protection to bona fide asylum-seekers. There is a 30-day period to submit comments on the rule, although advocates are seeking a 60-day comment period. CMS has submitted a public comment and encouraged individuals and organizations to submit public comments before the July 15 deadline. By July 15, 2020, over 79,000 comments had been recorded in opposition to the rule with more than 10,000 comments from the faith community.

Border apprehensions fell by 50 percent in April but rose in May. 23,118 migrants were apprehended in May, up from 16,966 in April—a jump of 36 percent—despite a policy of rapid expulsions implemented in late March. About 43,000 migrants have been subject to rapid-expulsion since the Trump administration effectively shut down travel between the United States and Mexico in March. Between late March and the end of April, DHS has returned over 900 children to their countries, mainly in the Northern Triangle, in contravention of US domestic law. US authorities accepted only two asylum-seekers over its land borders between March 21, 2020 and the end of April.

International organizations have severely criticized the US for its expulsion and deportation policies, arguing that Mexico and other countries are incapable of providing the necessary treatment to care for infected asylum-seekers. US-based experts have argued that the border policy undermines human rights and is contrary to US and international law.

Canada experienced a slight uptick in asylum-seekers crossing the Canadian border from the United States in May, despite the ban on nonessential travel. Twenty-one asylum-seekers were apprehended and returned to the United States in May, while only six were stopped in April. The lack of access to asylum relief in the US incentivizes asylum-seekers to cross into Canada, although the ban on nonessential travel and the Safe Third Country agreement between the US and Canada can block their entry.

On June 25, 2020, the Supreme Court ruled in a 7-2 vote that asylum-seekers subject to expedited removal are not entitled to a federal court hearing on their claim and can be quickly returned to their countries if their fear of persecution is not viewed as credible. The decision further undermines the right to due process for asylum-seekers to the United States, which has been virtually eliminated by the Trump administration during the COVID-19 pandemic.

On June 30, 2020, a federal district judge invalidated a Trump administration rule that asylum-seekers can be denied asylum if they did not first apply for asylum in a safe third country.

The Trump administration published a rule on July 9, 2020, that would block asylum-seekers to the US-based on public health concerns.

Citing the COVID-19 pandemic, the rule argues that asylum-seekers pose a health and safety risk to the US public and thus should be denied entry into—and protection from—the US-based on national security grounds. Asylum-seekers originating from or traveling through countries with coronavirus cases among their populations would be summarily denied asylum.

Advocates decried the rule, stating that the US is already a hotspot for the virus and that alternative steps could be taken, such as to test and quarantine potential asylum-seekers if needed. The rule is the latest of a series of administration policies adopted during the pandemic to weaken the US asylum system.

Visa categories

On April 22, 2020, President Trump signed a proclamation, which suspends for 60 days the issuance of family and employment-based green cards to overseas applicants, with several exceptions. Spouses and minor children of US citizens are exempted from the green card ban, as well as EB-5 investor program applicants, medical professionals, and Special Immigrant Visa applicants from Iraq and Afghanistan, among others. Parents, siblings, and adult children of US citizens are blocked by the ban, as are immediate family members of legal permanent residents. The Diversity Visa Lottery Program also will be halted. The announcement was met with immediate criticism about its impact on legal immigrants attempting to reunite with families and immigrant workers.

Nonimmigrant programs were also excluded from the proclamation. Thus, students, agricultural workers, high-tech workers, and religious workers, among others, can continue to enter the United States to work or study for temporary periods. However, the Special Immigrant Visa portion of the Religious Worker Program, which allows religious workers to enter the US permanently, was suspended.

On April 25, 2020, several immigrant rights organizations filed a temporary restraining order in federal court seeking to block the family immigration portions of the proclamation, arguing that they separate families unnecessarily and that immigrants would help, not hinder, the economic recovery from the COVID-19 crisis. Critics have stated that the proclamation is an end-run around Congress, which rejected a similar proposal supported by the administration in 2018.

A class-action lawsuit filed in federal court May 28, 2020, argues that the green card ban instituted by the president on April 22, 2020, prevents the reunification of children who will turn 21 while the ban is in effect with their parents. Children who turn 21 during the period of the ban will be forced into a visa category with a several decades long waiting period.

On May 29, 2020, President Trump issued a proclamation restricting visas to Chinese students and researchers, as part of a series of moves to respond to China in the aftermath of the coronavirus crisis. The proclamation bans students who attend universities affiliated with the Chinese military.

Due to a shortage of personnel, on June 11, 2020, the Trump administration placed a temporary halt on processing for green cards for immigrants applying in the United States. US Citizenship and Immigration Services (USCIS) resumed processing as of June 17, 2020. In April, it placed a hold on green card applications from immigrants living abroad.

On June 22, 2020, the Trump administration suspended several categories of nonimmigrant visas until the end of the year, including H-1B visas for technology workers, H-2B for seasonal workers, L-1 for corporate executives, and J-1 for scholars and exchange programs. The hold went into effect June 24, 2020.

The presidential proclamation excludes agricultural—including those in the food supply chain—and health-care workers due to their classification as essential workers during the pandemic. It does not impact temporary workers already in the United States. Advocates argue that there is little evidence that immigrants take jobs from US workers and that the administration is taking action to appease anti-immigrant supporters.

On July 6, 2020, the Trump administration proposed policy guidelines that would revoke visas for international students who would not be participating in in-person classes during the fall semester, despite the fact that many universities have suspended or may suspend in-person classes this fall. After vigorous opposition from universities, states, and the high-tech industry, the administration rescinded the proposal on July 14, 2020.

Refugee Admissions

Following a joint decision by UNHCR and IOM on March 17, 2020, to temporarily suspend resettlement travel due to the widespread travel obstacles, the State Department has temporarily halted refugee admissions to the United States, even for those deemed “ready to travel.” This comes at a time when the program was on a pace to resettle a few thousand fewer refugees than an already historic low 18,000 limit for the year.

Several thousand refugees who would have arrived in 2020 are now on hold, leaving them in vulnerable situations. As of April 1, 2020, halfway through FY 2020, 7,383 refugees had been resettled in the United States, approximately 20 percent below the number needed to meet the historically low refugee ceiling of 18,000 by October 1, 2020. With the ongoing pandemic and restrictions in travel, it is unlikely the United States will reach the refugee ceiling this year.

Due to the low number of refugees admitted in FY 2020 and the suspension of refugee admissions due to COVID-19, refugee resettlement agencies across the country are struggling to meet the needs of recently arrived refugees. In a letter to Congress on April 13, 2020, organizations asked for funding for the Office of Refugee Resettlement, a resumption of refugee resettlement and assistance to stabilize the refugee resettlement network.

The US government has allowed for a small number of extremely vulnerable refugees to enter the United States since the suspension of refugee resettlement on March 18, 2020. From April 1-24, 27 cases were resettled in the United States, 25 of which were religious persecution cases. As of May 15, 2020, the United States had resettled only 24 refugees during the month of May, including three from Papua New Guinea. About 40 refugees have traveled to the United States since May 21, 2020, from Papua New Guinea, Nauru, and Australia as part of a 2017 US-Australia agreement. The resettlement of refugees from Manus and Nauru offshore detention centers are considered emergency cases and will continue during the pandemic. As of June 12, 7,661 refugees had been admitted to the US in FY2020, with 117 admitted in June.

On June 18, 2020, UNHCR and IOM announced a resumption of refugee resettlement worldwide. The agencies suspended refugee resettlement travel on March 17, 2020 in response to the COVID-19 pandemic. Except for emergency cases, the Trump administration has yet to lift its ban on refugee admissions started in March.

On June 24, 2020, UNHCR launched an appeal for resettlement slots worldwide to respond to the record number of forcibly displaced globally. As of July 10, 2020, only 7,836 refugees have been admitted to the United States, with only 82 admitted between July 1 and 10.

On June 20, 2020, presumptive Democratic presidential nominee Joe Biden released a plan that would resettle 125,000 refugees per year and would seek a statutory 95,000 per year floor.

Over 20 former US officials, including diplomats, wrote Congress July 14, 2020, to support legislation which would provide asylum to residents of Hong Kong in danger of persecution from the Chinese government because of their participation in protests against the Chinese regime.

The Public Charge Rule

On February 24, 2020, the Department of Homeland Security (DHS) began implementing the administration’s “public charge” rule, which prohibits immigrants in the United States and abroad from permanent residency if they use a long list of public benefits, including food stamps and most forms of Medicaid.

Advocates have called for DHS to suspend the regulation during the pandemic, as it has prevented many immigrants and their families from accessing needed health-care services and basic support. The rule’s chilling effect is a particular problem during this crisis.

On March 13, 2020, USCIS announced that it would not count for public charge purposes the use of benefits for the prevention, testing, or treatment of COVID-19. However, the agency indicated that applicants for other public benefits during the pandemic, such as food stamps, will need to show proof that the benefits were used as a result of the loss of a job or other supports. This has caused confusion among immigrant populations and further discouraged them from accessing services at a perilous time.

On April 13, several states filed a motion urging the Supreme Court to temporarily stay the public charge rule, citing the chilling effect it has on immigrants needing COVID-19 care and other public benefits, such as food assistance, during the pandemic.

On April 20, 2020, the Trump administration responded to the motion in the Supreme Court, asking the justices to deny it by citing the comprehensive efforts being undertaken by the government to control the virus. The US Department of Justice (DOJ) also argued that states should better communicate to their residents that health-care treatment for COVID-19 is not counted under the public charge rule.

On April 24, 2020, the Supreme Court, without explanation, denied the motion by several states to temporarily stay the public charge rule during the COVID-19 pandemic. However, the decision did leave states the option to seek relief in federal district courts. On April 28, 2020, the New York Attorney General filed a motion in the Southern District of New York to halt the implementation of the new public charge rule. As of May 4, 2020, the court had not ruled on the motion to suspend the rule.

On May 18, 2020, attorneys from the Offices of the Attorneys General in New York, Connecticut, and Vermont, plus the New York City Law Department, argued in the Southern District Court of New York for a suspension of the public charge rule, stating that the rule has discouraged immigrants from accessing care and treatment for COVID-19.

A study released by the Urban Institute May 18, 2020, found that 1 in 3 immigrant families have refrained from using public benefits due to the administration’s public charge rule, an increase from 21 percent prior since 2019. The report added that the phenomenon has become even more alarming during the COVID-19 pandemic, in which families are struggling economically and facing severe medical conditions.

Enforcement

On March 18, ICE announced that it would focus its enforcement efforts on persons with criminal convictions, not low-risk individuals. However, Ken Cuccinelli, Acting Deputy Secretary of DHS, has stated that ICE officers may still remove immigrants they encounter and that deportations will continue during the crisis.

In response to concerns from faith-based organizations and others, DHS has indicated it will not pursue enforcement around sensitive locations, including hospitals and clinics, notwithstanding media reports that it continues to do so. However, DHS has to date ignored pleas by border communities to halt wall construction on the US-Mexico border.

Detention

The Immigration and Customs Enforcement (ICE) branch of DHS continues to incarcerate around 23,000 immigrants a day, the great majority of whom pose no threat to society. In the current circumstances, even many “mandatory” detainees are eligible for release. As reported by CDC in guidance provided to DHS, cramped detention centers are a breeding ground for infection. Numerous reports have also highlighted the inadequate health care provided in ICE and CBP immigrant detention centers.

Advocates have called for the release of noncriminal detainees who are eligible for release and other detainees. ICE has begun to release certain detainees as a defense against the spread of COVID-19. It has yet to release a larger population of noncriminal detainees sought by advocates, religious leaders and lawsuits filed by civil rights organizations. More than 3,000 immigrant detainees have tested positive for COVID-19, and three have died. Advocacy organizations have warned that the death toll will increase, as detainees continue to be held in unsanitary conditions. A senior correctional officer who worked at Eloy Detention Center in Arizona died June 14, 2020 as a result of COVID-19. Over the weekend of June 12-15, 2020, coronavirus cases at Eloy jumped from 21 to 122.

Local residents in Pearsall, Texas, which hosts an ICE detention facility, are questioning whether GEO Group, a privately-owned federal contractor that runs the Pearsall detention center, has done enough to protect detainees and prevent the spread of COVID-19 in their community. Other communities with detention centers are criticizing the COVID-19 policies of private contractors.

In a letter to Senate Democrats on May 19, 2020, the DHS Inspector General announced a review to determine whether ICE effectively has managed the COVID-19 crisis at its detention facilities and protected the health of immigrants and staff.

The number of migrant families in three family detention centers dropped nearly 40 percent in one week in April, as a federal court is considering whether to order the release of all families with children due to COVID-19 concerns. Advocates are also seeking the release of unaccompanied minors at facilities across the country, which is also the subject of litigation in federal court.

In a May 21, 2020 letter to DHS Secretary Chad Wolf, Democratic senators asked for information about whether DHS was forcing parents with children to choose between keeping the child with them in detention or releasing them to a US sponsor. DHS has denied that such a binary choice was presented to parents in three family detention centers—Dilley and Karnes in Texas and Berks in Pennsylvania. On May 22, 2020, Judge Dolly Gee of the Federal District Court in central California ordered ICE to explain its process for releasing children.

ICE has transferred detainees with a positive COVID-19 test, spreading the virus to other communities. On May 29, 2020, Senate Democrats called on ICE to stop transferring detainees during the pandemic.

June 10, 2020, ICE announced it would expand voluntary testing in two detention centers, with plans to add more testing nationwide. Here’s how ICE has reported confirmed COVID-19 cases since March.

The Office of Inspector General of DHS released a report June 18, 2020, which found that the number of detainees infected by the coronavirus jumped from one individual on March 25, 2020, to 1,312 detainees on May 26, 2020. Detainees across the nation are expressing fear of contracting the virus, while advocacy organizations continue to seek their release.

A coalition of groups filed a group habeas petition on behalf of four detainees in Houston on June 23, 2020, to compel ICE to release immigrants from the Joe Corley Detention Center, where there has been a spike in COVID-19 cases. Houston is a hotspot for COVID-19 cases.

As of July 15, 2020, more than 900 employees of immigrant detention centers nationwide have tested positive for COVID-19. Despite the rising number of infections among staff and detainees, ICE continues to resist releasing eligible immigrants from detention.

Parents with children in immigration detention must decide by July 17, 2020, whether to release their children to relatives or keep them in detention with them. ICE is giving the parents the cruel choice as a result of a court ruling by Judge Dolly Gee on June 26, 2020, requiring ICE to release the children because of the coronavirus. ICE has opted not to release the parents and children together.

Judge Gee, who oversees the implementation of the Flores agreement, has no authority over how ICE handles adults in detention. As many as 355 children in three family detention centers would be impacted by the court order. On July 16, 2020, Judge Gee announced a 10-day extension of the deadline to release children from custody to July 27, 2020.

Deportations

Since the beginning of the pandemic, the administration has deported thousands of immigrants to other countries, particularly to the poor nations of the Northern Triangle of Central America and to Haiti. Reports indicate that US deportation flights have spread the virus globally.

On March 17, Guatemala temporarily suspended deportation flights from the United States, after 44 deportees on a flight from Brownsville, Texas, tested positive. However, Guatemala resumed flights two day later after US immigration officials said they would not deport anyone with COVID-19. Guatemala again suspended US deportation flights on April 17 after between 50 and 75 percent of deportees on one flight tested positive for COVID-19. Guatemala began routinely accepting deportation flights on May 4 after US immigration officials said all deportees would first test negative for COVID-19. On May 7, 2020, however, one of the Guatemalan deportees on a May 4 flight tested positive for the virus, despite assurances from the United States. Guatemala again paused deportation flights from mid-May until the week of June 8.

Guatemalan President Alejandro Giammattei expressed frustration with the United States on May 20, 2020, stating that the United States was not an ally of his country because of its deportation of immigrants to Guatemala who have tested positive for COVID-19. According to the Guatemalan government, 186 Guatemalan citizens returned from the US have tested positive for the virus.

On May 2, 2020, US Senate Democrats sent a letter to the US State Department and Department of Homeland Security requesting that they test deportees for COVID-19 prior to deporting them. In late April, the agency initially sought to begin testing some migrants in detention for COVID-19 before deporting them, by acquiring 2,000 tests a month from HHS. ICE has stated it only tests a sample of deportees for COVID-19, and ICE has been using a faulty coronavirus test to determine whether deportees have been infected.

Deportations of Haitians continue, despite the potential spread of the virus to Haiti by deportees. On May 11, 2020, DHS removed from a deportation flight to Haiti 5 detainees who had tested positive for the virus. NGOs and human rights activists are calling for a halt in deportation flights to Haiti, citing the dangers to detainees and to Haitian citizens, who have little access to testing and treatment for the virus. On May 11, Representative Frederica Wilson (D-FL) introduced the Haitian Deportation Relief Act, legislation that would suspend deportations to Haiti during the pandemic.

Opposition to deportation flights to Haiti, Guatemala, and other countries has grown, yet the US is still unwilling to test all deportees before returning them. On April 10, 2020, President Trump issued a memo threatening to restrict visas to countries that refuse to accept deportees during the COVID-19 crisis.

The Trump administration continues to deport migrant children at a record rate, but documents show that DHS proposed expedited deportations for unaccompanied children as far back as 2017. The pandemic has given the administration political cover to execute its deportation plan, with close to 1,000 children having been deported since late March.

Despite calls from elected officials, international organizations, and advocates to suspend deportations, 2,221 individuals were deported to various countries during the first 13 days of June.

In response to the danger of the COVID-19 crisis, as of April 25, 2020, the Mexican government has released 3,653 detained immigrants over the past five weeks and returned them to Honduras, El Salvador, and Guatemala. The policy is consistent with the US practice of returning immigrants during the pandemic, risking the spread of the virus to vulnerable Central American countries.

In Guatemala, 1 in 5 positive COVID-19 cases can be traced to deportees returned from the United States, according to a report by Refugees International released June 23, 2020. Meanwhile, Guatemalan officials say that two dozen Guatemalan deportees from the US have tested positive for COVID-19 since US gave the Guatemalan government assurances that health protocols were in place to prevent the return of infected Guatemalans. The Guatemalan government has placed a cap on US deportations to only two flights a week of no more than 50 deportees.

A July 10, 2020 report by the Marshall Project and the New York Times found that the US forced the deportation of immigrants with COVID-19 to their home countries, spreading the virus internationally. Unsanitary and unsafe conditions in detention centers and shoddy testing of deportees has led to the spread of the virus to Guatemala, Haiti, and other poor countries, the report concluded.

Due Process

Immigration Hearings

After more than 70 organizations called for the closing of immigration courts until the end of the pandemic, on March 18 the Executive Office of Immigration Review (EOIR) postponed non-detained immigration hearings. Despite opposition from immigrant rights groups, on July 13, 2020, non-detained hearings restarted in several locations.

Among the suspended cases are asylum hearings for persons waiting in Mexico under the MPP, which remains postponed. Hearings for detainees were not postponed, risking the health of detainees, lawyers, and judges.

The Executive Office of Immigration Review (EOIR) continued to hold in-person hearings for detained immigrants, as a pending lawsuit from several immigrant rights organizations seeking a temporary restraining order was being considered. On April 28, 2020, a federal judge in Washington, DC, denied the lawsuit seeking to suspend immigration hearings for detained individuals due to the dangers caused by COVID-19. The judge ruled that the government was taking steps to mitigate the danger to immigration lawyers, detainees and others.

The Inspector General’s office in the Department of Justice announced May 6, 2020, an investigation into the decision by the Executive Office for Immigration Review (EOIR) to continue immigration hearings for detainees during the COVID-19 pandemic. Immigration judges and lawyers have strongly opposed the policy, citing the danger it caused for judges, lawyers, and detainees.

When EOIR announced on June 24, 2020 that it would reopen non-detained immigration hearings in numerous locations on or before July 6, 2020, several US Senators, led by Senator Elizabeth Warren (D-MA) wrote Attorney General Barr opposing such a move. They argued it would place immigrants, attorneys, and court staff at risk of COVID-19.

Despite strong opposition from immigration judges, lawyers, and advocates, the Department of Justice continues to reopen immigration hearings for non-detained immigrants, with Newark, Detroit, and Baltimore opening court hearings July 13, 2020. As of July 15, 2020, 14 cities have reopened immigration courts, with Dallas announcing it would shut down its court again on July 17 and San Diego postponing its original July 6, 2020, opening for two weeks.

Processing of Benefits

On March 18, 2020, the US Citizenship and Immigration Service (USCIS) suspended in-person interviews for immigration benefits, including naturalization, permanent residence, and asylum. This could place immigrants in the precarious position of overstaying their visas and being at risk of deportation.

On a positive note, USCIS announced March 30, 2020, it will reuse previously submitted biometrics for work authorization extensions, benefitting Deferred Action for Childhood Arrivals (DACA) and Temporary Protected Status (TPS) recipients. USCIS also has shown flexibility in enforcing filing deadlines, extending by 60 days the period for submitting certain documents.

On April 24, 2020, USCIS announced that its offices would reopen on or after June 4, 2020. Select offices have since reopened, but with USCIS facing a shortfall in funds, it is possible more than 13,000 of its employees will be furloughed in August. USCIS is also planning to announce an application fee increase for several benefits, including citizenship, in the near future.

On May 16, 2020, USCIS requested $1.2 billion in emergency funding from Congress, warning that the agency could run out of money in a few months. In addition, the agency announced it would add a 10 percent surcharge to all benefit applications, placing a burden on immigrants seeking to adjust their immigration status or to become citizens.

USCIS has shut down offices overseas, resulting in a decrease in applications and fee revenue. It also has stopped considering certain green card applications because of a Trump administration policy adopted in April. Advocates claim that the administration has slowed processing times and deterred immigrants from applying for benefits.

With the closing of offices in March, immigrants eligible for naturalization have been unable to become citizens, with as many as 126,000 legal permanent residents are waiting to become citizens. The suspension of naturalization ceremonies during the pandemic has caused concern that tens of thousands of immigrants will be unable to participate in the 2020 election. USCIS has refused to conduct virtual naturalization ceremonies during the pandemic, claiming that they do not have the legal authorization.

USCIS resumed naturalization ceremonies when it reopened some of its field offices on June 4, 2020, with 2,000 new citizens sworn in as of June 10, 2020. USCIS has allowed certain naturalization ceremonies—including through drive-by windows and ceremonies in large facilities or outside—to help ease the naturalization backlog, but over 100,000 potential citizens are still waiting to take the oath and 700,000 have applied for naturalization. Prior to the pandemic, USCIS swore in 60,000 new citizens each month. The administration has received bipartisan criticism over its backlog of naturalization applications.

USCIS faces the possible furlough of 13,400 employees at the end of the fiscal year unless Congress appropriates funding for the agency. Although legislation has been introduced to provide the funds, it is unclear whether Congress will be able to act in time. Without funding, the processing of benefits, including citizenship, will shut down, leaving potential citizens unable to vote in the November election.

Essential Workers

A report released by the Center for Migration Studies on May 1, 2020, found that 69 percent of US immigrant laborers work in essential critical infrastructure categories, including 74 percent of undocumented workers.

On April 28, 2020, President Trump ordered meatpacking plants to remain open, despite the dangers presented to workers by the virus, one-third of whom are undocumented immigrants. Meatpacking workers and farmworkers are at risk of contracting the virus because of their proximity to each other and the unsanitary conditions in which they work.

The United States is also insisting that meatpacking plants and other essential businesses in Mexico that supply the United States also remain open, even though it has closed the US-Mexico border to asylum-seekers.

In a call with lawmakers on May 7, 2020, HHS Secretary Alex Azar argued that COVID-19 was spreading in meatpacking plants because of the crowded and unsanitary living conditions in which workers live, not because of conditions in the plants themselves. Others supportive of the administration’s recent executive order to keep the plants open agree, including top Republican officials and meatpacking companies.

Opponents critical of the conditions in meatpacking plants, including the presumptive Democratic nominee for president, have called for better working conditions and hazard pay for plant workers. In the week after President Trump ordered meatpacking plants to remain open, the infection rate in communities with plants doubled.

On May 7, 2020, Western Union announced a two-week 50 percent reduction in fees for money transfers for front-line responders and essential workers. Remittances to developing countries have fallen since the beginning of the pandemic, threatening the survival of families who rely on them to buy food and other necessities.

While farmworkers have been declared essential workers by the administration, crowded and unsanitary workplace and living conditions leave them vulnerable to COVID-19. Advocates hope to add language to a fourth stimulus bill which would improve conditions for these essential workers.

As meatpacking plants reopen and reports of meat shortages and increased prices for meat emerge, plant owners and local authorities remain unaware of the exact number of workers, including migrant workers, who have contracted COVID-19. According to a non-profit group, nearly 18,000 meatpacking plant workers have tested positive for the virus, while 67 have died from it.

Foreign-born doctors treating COVID-19 patients are concerned that their families will be deported if they die from the virus. There are approximately 127,000 foreign-born doctors in the United States, mostly on H-1B visas, with their family members on H-4 dependent visas. Legislation introduced in April, entitled the “Healthcare Workforce Resilience Act,” would provide more visas and protection for foreign-born doctors, nurses, and their families.

On June 18, 2020, the Supreme Court, in a 5-4 decision, ruled that the Trump administration ended the DACA program in an unlawful manner, thus allowing DACA recipients, many of whom work in essential occupations, to remain in the United States. According to a Center for Migration Studies of New York study, 43,500 DACA recipients work in the health-care and social assistance industries, with 10,300 working in hospitals and 2,000 in nursing care.

On July 14, 2020, the Center for Law and Social Policy (CLASP) issued a report calling upon Congress to assist low-income citizens and immigrants in the next coronavirus bill, including providing stimulus payments to immigrant families left out in the first four bills.

Legislative Developments

Congress included $350 million for the State Department’s Migration and Refugee Assistance (MRA) account in the Coronavirus Aid, Relief, and Economic Security (CARES) Act signed into law March 27, 2020, to support health care and other services for refugees overseas and in the United States.

On April 13, 2020, Senator Cory Booker (D-NJ) and Representative Pramila Jayapal (D-WA) introduced legislation to force the release of detainees and to restrict immigration enforcement during the COVID-19 crisis. Countless detainees have expressed fear of contracting COVID-19 in crowded detention centers, and many have tested positive for the virus.

On April 24, 2020, President Trump signed a Phase 3.5 coronavirus bill to provide $484 billion to small businesses. The legislation included $25 billion for COVID-19 testing but did not ensure undocumented persons would receive guaranteed testing and care. It also failed to guarantee minority-owned businesses sufficient access to the Paycheck Protection Program (PPP).

As congressional leaders work to formulate a fourth legislative package to address the COVID-19 crisis, immigrant rights groups are urging Congress to include 1) a state option for Medicaid-eligibility for DACA and TPS recipients, permanent residents, and undocumented individuals for the treatment of COVID-19; 2) cash payments to those with ITIN numbers; and 3) an automatic extension of work authorization for DACA and TPS recipients.

Refugee advocates are targeting additional assistance for refugees in a fourth stimulus package, namely 1) funding for the Office of Refugee Resettlement (ORR) to assist refugees recently resettled in the United States; 2) the resumption of refugee resettlement processing, including for unaccompanied refugee minors; and 3) clarification that refugees resettled in the United States are eligible for direct cash payments.

On May 15, 2020, the House of Representatives passed the Health and Economic Recovery Omnibus Emergency Solutions (Heroes) Act, a $3 trillion stimulus bill which includes direct cash payments to unauthorized migrants who file taxes with ITIN numbers. The legislation also provides Medicaid coverage for testing and treatment for individuals with COVID-19, regardless of immigration status; an extension of work authorization for DACA and TPS recipients; and protection from removal and work authorization for essential workers.

The legislation faces an uncertain fate in the US Senate, which will unlikely address another stimulus package until June, at the earliest. Senator Mitch McConnell (R-KY) admitted May 27, 2020, that Congress will need to pass another stimulus bill to help US residents through the pandemic.

The Senate and the Trump administration have signaled that many of the immigrant provisions will not be included in any new stimulus bill. Advocates are working to include these immigration provisions in any final bill.

On June 18, 2020, Senator Edward Markey (D-MA) introduced the Immigration Enforcement Moratorium Act, legislation that would halt deportations and enforcement actions during the pandemic.

On June 30, 2020, a bipartisan group of US Senators, led by Florida Republican Marco Rubio (R-FL), introduced legislation prioritizing for refugee status Hong Kong residents persecuted by the Chinese government. The legislation includes Hong Kong residents who are persecuted because of their participation in protests against the government.

On July 13, 2020, Senator Mitch McConnell stated that the US Senate would consider a new coronavirus appropriations measure in late July, despite his earlier statements that another bill was not necessary. The Republican bill would cost $1 trillion while the Democratic bill, passed in May, would cost $3 trillion. It is unlikely that the Senate bill will include assistance for immigrants and their families, which is included in the House bill.


Kevin Appleby

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