THE TORCH: CONTENTS By Gabrielle Lessard

May 5, 2023

The senseless exclusion of immigrants with Deferred Action for Childhood Arrivals (DACA) from Affordable Care Act (ACA) coverage is finally ending. The Centers for Medicare and Medicaid Services (CMS) has published a proposed rule that would modify the definition of “lawfully present” used to determine eligibility for ACA health plans and certain other health care programs.

The proposed regulations would make DACA recipients eligible:

• To purchase plans, and receive income-based subsidies, on healthcare exchanges like Healthcare.gov,
• To participate in Medicaid or CHIP coverage for children and/or people who are pregnant in many states, and
• To enroll in Basic Health Programs in certain states (currently New York and Minnesota).

Colin Anderson Productions

Currently, people who have deferred action under categories other than DACA are considered lawfully present for purposes of the three programs listed above. In publishing the proposed regulations CMS has recognized that it is not required to treat DACA recipients differently than other recipients of deferred action, and that doing so is contrary to the purposes of DACA and the ACA.

The proposed regulations also incorporate important clarifications and technical corrections. The proposal clarifies that people who received special immigrant juvenile status (SIJS) are eligible for the three programs listed above. It also eliminates a 180-day waiting period for children under age 14 applying for certain kinds of humanitarian relief, including asylum.

The proposed regulations incorporate a November 1, 2023 effective date, which coincides with the beginning of the ACA open enrollment period. There is no real justification for making DACA recipients continue to wait for access to affordable coverage. As people newly eligible for ACA coverage, DACA recipients would be eligible for a ‘special enrollment period’ that enabled them to enroll outside of open enrollment.

CMS is accepting public comments on the proposed regulation through June 23, 2023. Check back on NILC’s website for additional news and resources about the regulation as it moves forward.

Gabrielle Lessard is a Senior Policy Attorney at NILC.

THE TORCH: CONTENTS By Ben D’Avanzo

February 7, 2023

Millions of people who receive health care through Medicaid will have their eligibility reviewed for the first time in over three years. Medicaid eligibility review, or ”redetermination” normally takes place at least once a year but was suspended due to policies related to the COVID-19 pandemic.

The redetermination process will disproportionately put immigrants and their families at risk of losing health coverage unnecessarily, because they face unique barriers to maintaining coverage. These barriers include the additional application steps required to verify their immigration status, challenges with identity verification, and household composition issues such as living in multi-generational families. Policymakers must go beyond current practices to ensure that immigrants retain health coverage through Medicaid or make a successful transition to the Affordable Care Act marketplaces. Here’s how:

Simplify Enrollment as Much as Possible – Determining Medicaid eligibility is complicated for both applicants and eligibility workers. This complexity is compounded for immigrants, who are required to demonstrate satisfactory immigration status and often encounter challenges in verifying their identities. Many immigrants, such as those working in seasonal or unstable jobs, also have difficulty verifying their income. States are required to redetermine applications without the recipients’ involvement, when possible, known as “ex parte” redetermination. States should seek out additional sources of information they can use in making ex parte redeterminations, such as information held by other state benefits agencies. States should accept applicants’ self-declaration of income that they can verify independently, such as income, and allow for reasonable variances.

Adamkaz

Ensure Medicaid Eligibility Workers are Trained on Immigrant Eligibility – The rules that govern immigrants’ eligibility for Medicaid are complicated, with variations by immigration status, time spent in the U.S., age, pregnancy and beyond. There have also been recent changes, for example, people living in the U.S. under the Compact of Free Association became eligible since Medicaid redeterminations were last conducted, as well as some Afghan and Ukrainian parolees. Medicaid agencies should ensure their staff receive regular training on immigrant eligibility to ensure no one is improperly denied coverage.

Conduct Outreach and Enrollment in Multiple Languages – Current Medicaid practices consistently fail people with limited English proficiency (LEP), despite the prevalence of LEP individuals in Medicaid households being more than double those of non-Medicaid households. For example, many states provide applications in English only, and very few translate their applications into languages beyond Spanish. State Medicaid agencies, which are responsible for ensuring meaningful access to their programs for people with LEP under Title VI of the Civil Rights Act of 1964 and Section 1557 of the Affordable Care Act, should, to the extent possible, communicate with applicants in their preferred language at all points in the process.

Without in-language applications, outreach and notices, LEP households may fail to realize they need to update their information with their Medicaid agency before losing coverage. The Centers for Medicare & Medicaid Services (CMS) suggests that states review their language access plans and review the availability of interpreters, among other steps, and currently offers toolkits in Spanish, Chinese, Hindi, Korean, Tagalog, and Vietnamese. California offers its applications in 12 languages. While Virginia only offers applications in Spanish, the state has programmed its systems to translate notices into several other languages. Given that many people with LEP prefer oral interactions, states may also want to follow the example of Oregon, which offers specific phone lines for different languages. State Medicaid agencies should use the opportunity of the unwinding to take the next available step towards greater language access in their application process.

Utilize All Forms of Communication – The Consolidated Appropriations Act, 2023 requires states to attempt to reach beneficiaries at risk of disenrollment with more than one method of communication. States should consider going beyond this requirement by attempting to contact people using all available forms of communication. For immigrants, particularly migrant workers or humanitarian immigrants who may move from where they were originally resettled to be closer to family, geographic movement is common. As a result, mailing addresses and phone numbers may have become outdated since their last redetermination over three years ago.

Nonetheless, postal mail remains an important form of communication and the way in which beneficiaries expect to receive notices from state agencies. States should act affirmatively to obtain change of address information through postal databases to supplement beneficiary updates.

Utilize and Fund Trusted Community Institutions – In addition to the challenges described above, agency communication with immigrant households is often hampered by their distrust of government. Concerns about interacting with government agencies or the consequences of receiving benefits may cause recipients to discard or ignore government communications. Agencies should proactively convene community-based organizations, schools, health clinics, non-English language media, and influencers on social media apps, like WhatsApp and WeChat, that are commonly used by immigrants. For example, California has created a Coverage Ambassadors campaign. Agencies should also recognize that community-based organizations are often under-resourced and should provide financial support for their participation in the redetermination process.

Assure Immigrants About Their Protections and Privacy – Some immigrants may be concerned about sharing the personal information needed to redetermine their eligibility, particularly if they have family or household members who are concerned about immigration enforcement. The time gap since redeterminations last occurred may have led to eroded trust. Families may act with suspicion or uncertainty when presented with the need to respond to a government notice. Medicaid agencies and other entities engaged in outreach can adopt trusting community approaches and welcoming policies to help educate applicants about how their data will and will not be used. They should also proactively address immigration status–related concerns like public charge.

Overall, states will have up to a little over a year to conduct these redeterminations. Without careful planning, including proactive, intentional steps like those outlined above and in more detail through the Protecting Immigrant Families network toolkit, more immigrant families will lose health coverage. Instead of defaulting to usual practices, policymakers should view this restart of renewals as an opportunity to make improvements to their Medicaid outreach and enrollment practices to promote health equity. Otherwise, parents may arrive at their children’s pediatrician’s appointments only to find, through no fault of their own, they are now uninsured.

Ben D’Avanzo is a Senior Health Policy Analyst at NILC.

THE TORCH: CONTENTS By Chiraayu Gosrani

February 1, 2023

Crises around the world—including in Ukraine and Haiti—have sparked increased flows of migrants seeking safety in the United States. While the Biden administration has welcomed Ukrainian refugees with open arms, senior officials are hastily preparing to send Haitian asylum seekers to Guantanamo—a site notoriously associated with war crimes and torture in the post-9/11 era and one historically associated with U.S. cruelty towards Haitians. Designed to evade international human rights law, this outrageous proposal harkens back to the 1990s, when Guantanamo was used as a makeshift prison camp where thousands of Haitians were detained in deplorable conditions and hundreds with H.I.V. were held indefinitely. The latest chapter in a long history of anti-Black racism in U.S. immigration policy and U.S. imperialism toward Haiti, the Biden administration’s Guantanamo proposal represents more of the same cruelty that has defined U.S. mistreatment of Haitians for decades.

The humanitarian crisis in Haiti is dire. Following the assassination of President Jovenel Moise in 2021, Haitians have experienced prolonged political crises and escalating violence. This instability has resulted in catastrophic food and water shortages, a significant cholera outbreak, and fuel scarcity that has shut down the economy and forced many health care centers to close. Armed groups have become de facto authorities in large parts of the Haitian capital, Port-au-Prince. Civilians are being threatened, sexually assaulted, kidnapped, and killed. These conditions have forced Haitians to flee, often resorting to treacherous, fatal routes by boat or by foot through thousands of miles of jungles, rivers, and deserts to the U.S.- Mexico border.

Joe Raedle

Citing the deteriorating conditions in Haiti and spurred by mounting criticism from advocates, the Biden administration announced on December 5, 2022, the extension and redesignation of Temporary Protected Status (TPS) for Haiti. The TPS program temporarily protects Haitians in the U.S. from deportation and allows Haitian immigrants to continue living and working in the U.S. The redesignation allows Haitians who arrived in the United States before November 6, 2022, to apply for the program, whereas previously only those who had arrived before July 29, 2021, were eligible. The administration also pushed back the expiration date from February 4, 2023, to August 3, 2024. Additionally, in January, President Biden announced a new plan to offer humanitarian parole to up to 30,000 Haitian, Cuban, Nicaraguan, and Venezuelan migrants per month. The administration touted these policies as part of “immediate steps to provide safe, orderly, humane pathways” for migration.

But the administration is simultaneously doubling down on detention and deportation to punish, rather than protect, Haitians seeking safety. Indeed, the TPS announcement came with an explicit warning that Haitians who make the journey to the U.S. in the coming months will be turned away and returned to danger, and the parole program announcement called for an expansion of expulsions at the border under Title 42—a public health measure that has been co-opted to strip migrants of the right to asylum and return them to perilous conditions in Mexico without due process. In addition, the parole program is prohibitive to most people fleeing Haiti in desperation. It requires applicants to have a U.S.-based fiscal sponsor, a passport, and a smart phone. Asylum seekers who migrate outside of the parole process are presumed to be ineligible for asylum. This asylum ban flouts international and U.S. law which requires migrants be given a fair opportunity to seek asylum.

The administration is already acting upon this threat: it has mobilized the U.S. Coast Guard to intercept more Haitian migrants at sea and deport them back to Haiti, where they face indefinite detention in Haiti’s National Penitentiary. The administration is also weighing plans to open new U.S. government-run detention sites in the Bahamas or Turks and Caicos, or to expand capacity at the prison camp center at Guantanamo Bay.

The present humanitarian crisis in Haiti, as well as the administration’s punitive proposals, are products of the same history of militarism and violence toward Haiti and its people.

U.S. policies dating back to Haitian independence are largely responsible for the current state of poverty and political instability in Haiti. Following the Haitian Revolution, an uprising of self-liberated African people, the U.S. refused to diplomatically recognize the free Black nation on the wishes of southern, white plantation owners. This ensured that France could force Haiti to pay for the “property” it lost as a result of independence — that is, the value of enslaved people and their labor. Haiti was forced to pay down that debt for centuries, mostly to U.S. creditors.

The U.S. began exerting its own imperial might over Haiti at the turn of the 20th century. In 1915, the U.S. invaded Haiti and occupied it for nineteen years. During the occupation, the U.S. forced a restructuring of the Haitian economy in favor of U.S. business interests. Even after its occupation ended in 1934, the U.S. continued to intervene in Haiti by propping up the repressive dictatorships of Francois “Papa Doc” Duvalier and his son Jean-Claude “Baby Doc” Duvalier. During the Duvaliers’ reign of terror from 1957 to 1986, approximately 200,000 Haitians were forced to flee the country and migrate to the U.S.

The U.S. government’s response to the plight of Haitians fleeing the Duvalier regime was openly discriminatory while Cubans arriving by boat were accepted and processed for entry, Haitian ‘boat people’ were regularly detained and sent back to their home country to face persecution, torture, and death. The Reagan administration continued the disparate treatment of Haitians by wrongly classifying Haitian asylum seekers as “economic migrants,” thus making it nearly impossible for them to secure humanitarian protections. The Reagan administration simultaneously introduced policies that required the detention of all Haitian migrants without the possibility of release while their immigration cases were pending. To fend off mounting accusations of discrimination, the government eventually applied the mandatory detention policy to all immigrants, not just Haitians, and thus laid the groundwork for the largest immigration detention system in the world — one currently responsible for detaining over 50,000 people daily. This system, rooted in white supremacy and built to criminalize immigrants, disproportionately harms, buses, and vilifies Black immigrants.

The Biden administration’s current Guantanamo proposal draws upon and perpetuates the legacy of anti-Black racism in U.S. policy toward Haiti. This reality becomes even clearer when comparing the disparate treatment of Ukrainian refugees fleeing the conflict with Russia and Haitians fleeing crises of similar proportions. While extending safe pathways to migration for Ukrainians, such as through the United for Ukraine parole program and the high volume of Title 42 exemptions granted to Ukrainians at the U.S.-Mexico border, the administration has practically shut the door on Haitians. In late 2021, just as the government prepared to welcome up to 100,000 Ukrainian refugees, heavily armed border agents on horseback with whips met Haitians in Del Rio, Texas.

Dozens of civil society organizations, led by the Haitian Bridge Alliance and including the National Immigration Law Center, have urged the administration to immediately reject plans to hold Haitian asylum seekers at Guantanamo or other offshore detention sites. To uphold its commitment to fostering racial equity and a humane immigration system, the administration must chart a new course that provides permanent protections for Haitians living in the United States and creates meaningful and safe pathways to protection for Haitian migrants fleeing their homes, without doubling down on detention and punishment. Only then can the administration begin to remedy the legacy of anti-Black racism that has pervaded U.S. mistreatment of Haitians for more than a century.

Chiraayu Gosrani is a Legal Fellow and member of the Racial Justice Initiative (RJI) at NILC.

THE TORCH: CONTENTS By Shelly Anand, Elizabeth Zambrana, and Alessandra Stevens (Sur Legal Collaborative) and Michelle Lapointe (NILC) 

January 27, 2023

Two years ago, on January 28, 2021, Gainesville, Georgia was the site of a tragic and entirely preventable liquid nitrogen leak at a poultry plant, which killed six workers. In the immediate aftermath of the tragedy, traumatized immigrant workers hesitated to come forward to report what they had witnessed because they feared employer retaliation, including a call to local police or Immigration and Customs Enforcement (ICE) and being put into and possible deportation proceedings. Their fears were not unfounded. Gainesville is in Hall County, which has a “287(g)” agreement with ICE, which deputizes local law enforcement to act as immigration agents.

The Gainesville poultry tragedy did not take place in a vacuum: immigrant workers experience 300 more workplace fatalities and 61,000 more workplace injuries per year, 37% receive less than minimum wage, and 76% experience wage theft. One national study found that undocumented workers experience minimum wage violations at nearly twice the rate of their U.S.-born counterparts in the same jobs. In 2020, immigrant workers made up 65% of worker deaths and in 2021, 727 immigrant workers from Latin America were killed on the job. These disparities can be directly tied to workers’ fear of reporting labor violations – workers who are unwilling to complain about safety violations on the job due to immigration enforcement concerns actually face greater job hazards and higher workplace injury rates. Workers who face firing, blacklisting, or deportation are more hesitant than others to take the risk of advocating for their workplace rights. Abusive employers routinely use threats of calls to ICE and police, implying possible deportation, to prevent immigrant workers from asserting their rights. These threats in turn intimidate immigrant workers to remain silent about these abuses due to fear of retaliation, being blacklisted in the local community, or the risk of deportation.

Photo by VCG / Contributor

On January 13, 2023, the U.S. Department of Homeland Security (DHS) announced new guidance establishing a process for workers in labor disputes to apply for temporary protection from deportation. This guidance is a critical step to ensuring that immigrant workers like the Gainesville poultry workers can report serious labor violations without fear of adverse immigration consequences. Immigrant workers’ ability to speak up about workplace abuses is critical to holding exploitative employers accountable for their failure to follow our country’s labor laws and improves working conditions for all workers.

The new DHS guidance establishes a streamlined process for workers in labor disputes to apply for deferred action–a well-established form of prosecutorial discretion which provides temporary protection from deportation and work authorization. Work authorization is critical to affording immigrant whistleblowers protection against retaliation in violation of our country’s labor laws. This protection bolsters the ability of agencies, such as the U.S. Department of Labor (DOL), the Equal Employment Opportunity Commission (EEOC), the National Labor Relations Board (NLRB), and state and local labor agencies, to investigate allegations of workplace abuse and enforce workplace protections, including the right to a safe and healthy workplace free of discrimination and the right to be paid fairly for all hours worked. A letter of support from one of these agencies is an essential component of any request for deferred action under the new policy, and deferred action requests will be considered on a case-by-case basis.

DHS’ announcement follows years of organizing by immigrant workers and advocates across the country, including in Georgia and other parts of the Deep South. Both Sur Legal Collaborative and the National Immigrant Law Center (NILC) were a part of a rapid response coalition led by the poultry workers and local grassroots organizers in Gainesville in the wake of the nitrogen leak. Despite their fear of retaliation, workers bravely shared details with advocates, attorneys, and federal investigators about what transpired in the days leading up to the nitrogen leak and on the horrific day of the leak itself.

Because these workers spoke up, OSHA issued over $1 million in penalties against the four companies responsible for the nitrogen leak, the highest penalties possible under applicable statutes. On hearing this news, one worker said: “It is good that justice will be done for the death of our comrades… From now on, we are not going to remain silent, anything that we think is wrong, we will report.”

Knowing that these brave workers were coming forward during the OSHA investigation of the nitrogen leak, despite their fears of retaliation, our coalition joined the national efforts to secure some form of protection for these workers against retaliation. After months of advocacy, workers in Gainesville were among the first in the country under this administration to receive deferred action.

DHS’s announcement supporting labor agencies and workers in holding abusive employers accountable is an important step. NILC and Sur Legal Collaborative, and our coalition partners across the country, will continue to advocate for DHS, DOL, and the Biden administration to do more for immigrant workers. Specifically, the DOL should  delegate U and T visa certifying authority to OSHA so that the agency can provide certifications to immigrant workers who are victims of trafficking and crimes in the workplace to support workers as they pursue more permanent immigration relief. DHS should ensure that workers who receive deferred action can renew that protection and should consider requests for prosecutorial discretion from individuals involved in civil rights disputes and private litigation. And DHS should end 287(g) agreements like the one in Hall County, which create a climate of fear in immigrant communities. Regardless, none of these actions is sufficient; Congress still needs to create a path for more permanent protection for these workers, including a process for them to become citizens.

THE TORCH: CONTENTS By Max Wolson

October 4, 2022

Driven by ambitions for higher office at any expense, Texas’ governor and attorney general have challenged virtually every action taken by the Biden administration. Texas is particularly committed to stymieing any attempt to make the immigration system more just and humane. But immigration is not the only target. Texas’ numerous lawsuits against the administration have also attacked everything from abortion access to environmental protections.

Texas’ litigation tactics are as awful as its motives. In each case Texas has filed within its state, Texas has engaged in “judge shopping,” a practice of manipulating court rules to all-but hand-pick which district judges will initially hear the cases they bring. Texas has done so with a clear goal: prevent any judges appointed by Democrats from hearing these cases and ensure an outcome in Republicans’ favor. That manipulation has worked; of the 20 politically motivated lawsuits Texas has filed in federal court, a Democrat-appointed judge has heard only one case.

Photo by Brian Jackson

In an ideal world, the judiciary stands apart from politics. But, by hand-picking only judges appointed by Republicans, Texas takes a huge step away from that ideal. Texas ensures that each decision it obtains is tainted by politics. The result is a minority of states obstructing national policy in front of only a handful of cherry-picked judges appointed by a single political party.

While judge shopping is harmful, the problem is easily solvable. The future of justice, policymaking, and democracy in this country depends on it.

Zooming Out: How Court Cases Are Assigned to A Trial Judge

The federal court system is comprised of 94 judicial districts within which most new cases are filed. Each state has between one and four judicial districts. Judicial districts range in size from a single city to an entire state.  

Districts can be vast; for example, the District of Alaska spans the State’s entire 665,400 square miles. As a result, many districts are further subdivided into “divisions.” Federal law establishes in which district a new case must be filed but leaves it to the individual courts to decide how to divide work among divisions. 

Texas has four judicial districts: the Northern, Eastern, Southern, and Western Districts of Texas. Each district is further divided into divisions. Many of these divisions contain three or fewer judges, each assigned a set percentage of new cases. And many of those one-to-three-judge divisions assign between 95 and 100 percent of new cases to judges appointed by Republican presidents. In other words, by choosing a specific court for a new case, a litigator can virtually guarantee that a Republican-appointed judge will hear their case, and in some cases, which judge specifically will preside.  

Texas has taken full advantage of the case-assignment system and filed every one of its 20 in-state cases in courts where Republican-appointed judges hear between 95 and 100 percent of cases, and in which three or fewer judges sit. Texas has filed eleven of those cases in courts where a single, Republican-appointed judge hears between 95 and 100 percent of cases. Put simply: Texas has made sure that it has never had more than a 1-in-20 chance of appearing before a Democrat-appointed judge. Texas has then used those cases to obtain unprecedented, nationwide orders barring numerous Biden administration policies from being implemented at the federal level. 

Texas’ judge shopping is clearly intentional. The state does not file lawsuits in Austin, where its governor and attorney general are based, because half of cases there are assigned to a Democrat-appointed judge. Texas also avoids filing in most of its largest cities, including Dallas and El Paso, where Democrat-appointed judges sit. Texas’ only big city litigation has been filed in Fort Worth, a court with three Republican-appointed judges that lies 12 miles away from Dallas, a city with 11 judges from both political parties. 

Immigration cases are Texas’ most flagrant examples of judge shopping. Texas has not filed any of its immigration-related lawsuits within 150 miles of the border because most courts near the border include Democrat-appointed judges. In fact, Texas has filed three immigration lawsuits in Amarillo, which is the furthest northern courthouse in the state, and assigns 95-percent of cases to a single, Trump-appointed judge.

Fighting Back to Restore Trust in the Courts

NILC is fighting back against Texas’ misconduct. Most recently, on September 19, 2022, NILC filed an amicus brief with the U. S. Supreme Court on behalf of renowned law professor Steve Vladeck and coauthored by attorneys at Jenner & Block. That case seeks to overturn Texas’ nationwide bars on the administration’s guidance about who to prioritize for immigration enforcement. Texas filed that lawsuit in Victoria, two hundred miles from the nearest point of the Mexico border where only a single Trump-appointed judges receives cases.

The brief shows how Texas is manipulating the judiciary and explains why that improper behavior undermines Texas’ arguments in two ways.

First, the brief explains that the courts have long interpreted the Constitution to forbid lawsuits over generalized political grievances. Texas’ manipulative conduct has been possible only because its claimed harms from Biden administration policies are not uniquely present in any of Texas’ locations (or Texas overall).

Second, the brief reiterates to the Court that orders like those granted by the trial court are only allowed if they are in the public interest. The brief explains how courts have regularly found that this type of manipulation of the courts harms faith in the independence of the judiciary and harms the public interest.

Texas is unlikely to change its conduct and a decision in the Supreme Court case won’t come until 2023. Until SCOTUS can make clear that Texas’ conduct is unacceptable, Congress and the Courts should take steps even sooner to block Texas’ behavior. Specifically, Congress could easily require that lawsuits against federal government policies be filed in the District of Columbia, where the federal government is located, and where judges appointed by both parties preside. Separately, the Texas federal courts could change their rules, requiring that lawsuits against nationwide federal government policies be randomly assigned among all the district’s judges and not just those in a specific division. Removing Texas’ ability to further politicize the courts will benefit all and go a long way toward restoring trust in our judiciary.

Max Wolson is a staff attorney at NILC.