Author Archives: Jasmin Gamez

What to Know About the Biden Administration’s Proposed Restoration of DACA Recipients’ Access to Affordable Care Act Programs

What to Know About the Biden Administration’s Proposed Restoration of DACA Recipients’ Access to Affordable Care Act Programs

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,
  • 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.

End of Pandemic Medicaid Protections May Leave Many Immigrants without Health Insurance

End of Pandemic Medicaid Protections May Leave Many Immigrants without Health Insurance


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.


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.

Biden’s Reported Plans to Detain Haitian Asylum Seekers at Guantanamo Perpetuates History of Anti-Black Racism in U.S. Immigration Policy

Biden’s Reported Plans to Detain Haitian Asylum Seekers at Guantanamo Perpetuates History of Anti-Black Racism in U.S. Immigration Policy

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 worldone 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.

Two Years After Deadly Nitrogen Leak at Georgia Poultry Plant, A Big Step Forward to Protect Immigrant Workers Reporting Labor Abuses

Two Years After Deadly Nitrogen Leak at Georgia Poultry Plant, A Big Step Forward to Protect Immigrant Workers Reporting Labor Abuses

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.

Texas’ Judge Shopping Undermines Public Interest and the Future of Public Policy (The Torch)

Texas’ Judge Shopping Undermines Public Interest and the Future of Public Policy


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.

Biden Must Do More for People Still Hurting From the Muslim and African Ban (The Torch)

Biden Must Do More for People Still Hurting From the Muslim and African Ban


July 25, 2022

On his first day in office, President Biden issued an executive order that rescinded the Muslim and African Ban, saying that the former administration’s policies were “contravening our values” and had left “a stain on our national conscience.” While he was right that the ban represented a dark chapter in this country’s history, his administration’s subsequent actions have not fully undone its harms.

I have worked with some of the thousands of individuals who were barred and are still separated from their families, awaiting relief and the chance to finally reunite. More than a year later, many of them continue to fight for their chance to immigrate to the U.S. through several lawsuits challenging the government’s procedures in implementing the ban. Recently, the Biden administration filed a brief doubling down on its decision to continue banning aspiring newcomers who were unable to enter due to the ban. The administration reasoned that the case is moot – an affront to thousands of people whose lives have been turned upside down by a discriminatory policy that should have never existed in the first place.

Photo by Les Talusan

Individuals who won diversity visas between 2017 and 2020, often after making enormous sacrifices, are one of the groups still barred from entering the country. The Biden administration has argued that these diversity visa winners have no legal recourse and, frustratingly, their only hope is to reapply again to a program that carries once-in-a-lifetime odds of success.

The diversity visa program selects potential immigrants from countries that generally have low immigration numbers, and was established with bipartisan support by Congress to diversify immigration to the United States, offering individuals the opportunity to build a life here and contribute to our communities. An average of 13 million people from around the world apply to the diversity lottery each year. Only 55,000—less than half a percent of applicants—are granted a chance to apply for a visa, and even those fifty-five thousand aren’t guaranteed entry or residency, but only the mere chance to apply. Once selected, they often forgo other job offers and educational opportunities, and defer important life decisions such as marriage in order to go through the application process.

In line with other trends of anti-Black racism in the U.S. immigration system at large, immigrants from African countries are disproportionately impacted by the denial of diversity lottery visas. Historically, immigrants from Africa have relied heavily on the diversity visa program as a means to immigrate to the U.S., given that other types of visas or avenues of migration require them to have family members or strong close contacts in the United States in order to qualify. Statistics show that, historically, 39% of all diversity visa immigrants were from Africa, even with an application approval rate below 50 percent.

Omer Mohamed, a Sudanese electrical engineer, is one heartbreaking example of the impact the ban has had on diversity visa winners. When he won his visa in 2019, he thought it was his once-in-a-lifetime opportunity to immigrate to the U.S. and support his elderly parents and family in Khartoum. Omer’s mother sold what remained of her heirloom jewelry so that he could afford the $300 interview fee. Despite this, Mohamed’s visa was rejected solely because of the discriminatory Muslim and African Ban.

Ramin Raghifar of Iran is another example of a life in limbo. He won the diversity visa after 15 years of applying. Ramin had always dreamed of traveling to the U.S. to practice medicine and advance his research in dermatology and radiology. He was so committed to the prospect of contributing to research in the U.S. that he was even willing to pass up other job opportunities and delay marriage. His visa, too, was denied due to the ban.

For Omer, Ramin, and thousands of others, the only hope to complete their journey to America is through legal action. This is why they are closely following the multiple lawsuits that have been filed against the U.S. government for failure to repair the harms of the ban. While the courts have previously indicated that the U.S. can or must proceed with remedying the harm to diversity visa applicants, the Biden administration has, perplexingly, fought to uphold the Trump administration’s previous policies—indeed, the same policies that Mr. Biden denounced on day one of his presidency.

Despite the administration’s disappointing recent court filing, it still has the opportunity to bring its policy in line with the values President Biden conveyed when issuing his executive order to repeal the ban. The administration can do this by dropping its legal defense of discriminatory policies that continue to devastate families to this day, and by allowing those who patiently and diligently worked for their right to immigrate to complete their journeys.

Haddy Gassama, Esq., is national director of policy and advocacy for the UndocuBlack Network, a member of the No Muslim Ban Ever coalition.

NILC Statement on the Department of Labor’s Guidance for Workers Involved in Labor Disputes 

July 6, 2022

Email: [email protected]
Madison Allman, 202-384-1279
Emily Morris, 213-457-7458 

NILC Statement on the Department of Labor’s Guidance for Workers Involved in Labor Disputes 

WASHINGTON — Marielena Hincapié, executive director of the National Immigration Law Center, issued the following statement in response to the Department of Labor’s announcement of a process by which workers involved in labor disputes can request temporary immigration protections: 

“The Department of Labor’s actions to protect immigrant workers are an important step toward advancing President Biden’s historic commitment to support worker organizing and empowerment, and critical to ensuring the rights of all workers. This victory is the result of years of organizing by workers and advocates and demonstrates the progress workers can achieve when they come together.  

“Providing temporary protections to immigrant workers that allow them to safely fight back against injustices in the workplace will bolster all workers’ rights. The Department of Homeland Security must swiftly follow through on their commitment to clarify the process by which workers can access protections so that all working people, including immigrant workers, can do their jobs safely and with dignity.”   


What Is Going on With DACA in the Courts? (The Torch)

What Is Going on With DACA in the Courts?


June 29, 2022

With two back-to-back federal court hearings related to the Deferred Action for Childhood Arrivals (“DACA”) policy coming up on July 6 and 7, we can all use a refresher on what’s going on. We’ve got you covered.

Disclaimer: The content of this post does not constitute legal advice. For questions about your individual case, please consult a reputable immigration lawyer.

Two DACA Cases Are Active in the Courts

There are currently only two cases centered on the DACA policy that are actively being litigated in the courts.

First is Batalla Vidal v. Mayorkas, No. 16-cv-04756, which is before Judge Nicholas G. Garaufis in the federal District Court for the Eastern District of New York. Batalla Vidal (or “the New York case”) was the first lawsuit in the country in which DACA-holder plaintiffs challenged the Trump administration’s efforts to end DACA in 2017. The plaintiffs in Batalla Vidal are represented by NILC, Make the Road New York, and the Yale Law School’s Jerome N. Frank Legal Services Organization. The New York case has its next hearing in Brooklyn on July 7, 2022, at 2:30 pm ET.

Second is Texas v. United States, No. 18-cv-00068, which was brought before Judge Andrew S. Hanen in the federal District Court for the Southern District of Texas, and which is currently on appeal to the Fifth Circuit Court of Appeals. In Texas (or “the Texas case”), the state of Texas and several other states sued the U.S. government to challenge the legality of the 2012 DACA policy. The state of New Jersey and several individual DACA recipients intervened to defend the DACA policy alongside the U.S. government. The Fifth Circuit is hearing oral arguments in the Texas case on July 6, 2022, at 9:00 am CT in New Orleans.

A Timeline of the New York and Texas Cases

To understand what is currently happening in the New York and Texas cases, below is a timeline of the relevant events in each case:

    • June 18, 2020: The U.S. Supreme Court concludes that Trump’s 2017 attempt to end DACA was unlawful. The merits of DACA are not at issue before the Supreme Court. The Court only considers whether Trump’s attempt to end DACA was done lawfully.
    • July 28, 2020: The Trump administration issues the Wolf Memorandum, which would have required the Department of Homeland Security (“DHS”) to deny first-time DACA requests, cut renewal periods for DACA recipients in half, and limit the availability of advance parole.
    • August 28, 2020: The plaintiffs in Batalla Vidal amend their complaint to challenge the Wolf Memorandum and fully reinstate the DACA program.
    • November 14, 2020: The Batalla Vidal court in New York takes two significant actions: (1) holds that Mr. Wolf was not the Acting Secretary of DHS when he issued the Wolf Memorandum, and (2) certifies a nationwide class including all persons who are or will be eligible for DACA as set out in the original 2012 DACA Memorandum (approximately 1.1 million people).
    • December 4, 2020: The Batalla Vidal court in New York vacates the Wolf Memorandum, fully reinstates DACA under the terms of the 2012 Memorandum, and opens DACA to first-time applicants for the first time in three years.
    • After December 4, 2020: Tens of thousands of eligible individuals file their first-time requests for DACA under the terms of the 2012 DACA Memorandum. U.S. Citizenship and Immigration Services (“USCIS”) has a 4-month ramp-up period in processing and begins adjudicating new DACA requests at a rapid pace in May 2021.
    • July 16, 2021: The District Court for the Southern District of Texas issues an order that the 2012 DACA policy is unlawful. The Texas court orders the government to stop granting DACA until it remedies its illegalities but allows renewals to continue until the case is fully resolved.
    • After July 16, 2021: The U.S. government appeals the Texas order to the Fifth Circuit Court of Appeals. Meanwhile, 78,000 first-time DACA applications submitted after the New York court’s December 4, 2020, order are stalled. USCIS even cancels appointments for first-time applicants to take fingerprints that had already been scheduled. Renewals continue as normal, except for “Extended Renewals” (renewal applications filed where the applicant’s last DACA grant expired more than one year prior), which the government inexplicably treats as first-time requests, grants of which are barred by the Texas order.
    • Summer-Fall 2021: Advocates focus their efforts on Congress, where legislation providing a pathway to citizenship for DACA-eligible individuals gains momentum.
    • Winter 2021-Spring 2022: In light of congressional inaction, the Batalla Vidal plaintiffs decide to go back to court in New York.
    • Spring 2022: The parties’ briefing of the Texas appeal before the Fifth Circuit is completed. Oral argument is set for July 6, 2022, in New Orleans.
    • April 2022: The Batalla Vidal plaintiffs and class members attend a status conference in Brooklyn to ask the New York court to clarify that its December 2020 order provides relief for a small subset of the 1.1 million class members who are harmed (the 78,000 first-time applicants who are stuck in between the two orders, and all Extended Renewal Applicants who USCIS is treating as first-time DACA applicants), without conflicting with the Texas order.
    • June 2022: The Batalla Vidal plaintiffs complete briefing on their motion for modification. The New York court sets oral argument for July 7, 2022, in Brooklyn.

The Space Between the New York and Texas Orders

The New York order (Dec. 2020) fully reinstates the 2012 DACA Memorandum, whereas the Texas order (July 2021) prohibits the U.S. government from *granting* first-time DACA requests.

The plaintiffs in Batalla Vidal are arguing that there is a space between these two orders for the U.S. government to do more to fully implement the 2012 DACA Memorandum as required by the New York order, without running afoul of the Texas order. Specifically, the Batalla Vidal plaintiffs are arguing that:

1. The U.S. government can *process* first-time DACA requests up to, but not including, a final decision to grant or deny DACA and work authorization.

In between December 2020 and July 2021, class members who applied for first-time DACA who had previously had certain processing steps completed ahead of time (as part of unrelated past immigration applications) had their DACA requests adjudicated faster than class members who had never before had their fingerprints taken by USCIS.

For instance, Batalla Vidal plaintiff J.L.S. never before had her fingerprints taken by USCIS. She applied for first-time DACA days after the New York order in December 2020, but by the time the Texas order was issued seven months later in July 2021, she still had not had her DACA request adjudicated. Contrast that to plaintiff M.B.F., who had previously had her fingerprints taken as part of an unrelated immigration petition. She applied for first-time DACA in December 2020, but her DACA was adjudicated much faster and approved before July 2021.

The above real-life examples show that capturing fingerprints takes time and having it done in advance makes a meaningful difference. If DACA is re-opened for first-time applicants in the future, even briefly, the 78,000 class members who are stuck in limbo are entitled to have their DACA requests adjudicated. Having processing steps like fingerprint appointments completed in advance would speed this process along and mean that the 78,000 class members have a better chance of receiving a decision on their DACA requests if the program is re-opened in the future.

2. The U.S. government can adjudicate Extended Renewal Applications without conflicting with the Texas order.

As a matter of policy, USCIS is inexplicably treating Extended Renewal Applications—DACA renewal requests filed by people whose previous grant of DACA expired more than a year ago—as first-time DACA requests. The Texas order prohibits USCIS from granting first-time DACA, but it allows USCIS to adjudicate and grant renewal requests, regardless of when the request was submitted. USCIS can make the policy choice to start treating Extended Renewal Applications like the renewals they are and adjudicate them (even if USCIS decides to request additional evidence from those applicants), all without conflicting with the Texas order.

3. The U.S. government can provide interim protection for the 78,000 class members stuck in limbo between the New York and Texas orders.

Finally, the Batalla Vidal plaintiffs argue that the U.S. government can fashion interim relief for the 78,000 first-time DACA applicants who applied in between December 2020 and July 2021 and are stuck in limbo.

What’s at Stake in the Upcoming Hearings in the New York and Texas Cases?

As discussed above, the New York and Texas cases have back-to-back hearings on July 6 and 7, 2022. The scheduling of these hearings on consecutive days was a coincidence, and the courts will be hearing arguments on distinct issues:

Fifth Circuit Case (Texas v. United States): On July 6, 2022, in New Orleans, the Fifth Circuit Court of Appeals will hear oral arguments on whether Texas and the other plaintiff states have “standing” to challenge the 2012 DACA policy. The court will also hear arguments on whether the 2012 DACA policy is lawful.

This is the first time the merits of the 2012 DACA policy will be heard by a Circuit Court of Appeals. Whatever the outcome at the Fifth Circuit Court of Appeals, the decision is likely to be appealed to the U.S. Supreme Court. The timing of the Fifth Circuit decision is uncertain; in the past, the Fifth Circuit has issued opinions anywhere from a few weeks to several months after oral arguments are heard.

New York Case (Batalla Vidal): On July 7, 2022, in Brooklyn, New York, the District Court for the Eastern District of New York will hear oral arguments on the plaintiffs’ three requests for relief to fully implement the New York order without contradicting the Texas order. Specifically, and as explained in more detail above, the plaintiffs will present arguments that the federal government should be ordered to: (1) process the 78,000 stalled first-time DACA applications submitted between December 2020 and July 2021; (2) adjudicate Extended Renewal Applications as renewals; and (3) provide interim relief for the 78,000 first-time DACA applicants stuck in limbo.

The outcome of the plaintiffs’ requests in Batalla Vidal will not dictate the outcome in the Texas proceedings. Rather, the requests the plaintiffs are making in New York are aimed at providing relief to a narrow subset of the 1.1 million class members while the merits of DACA continue to be litigated in the Texas v. United States proceedings.

What’s Next?

Tune into the Fifth Circuit oral argument on July 6, 2022, at 9:00 am CT:

Attend the New York oral argument on July 7, 2022, at 2:30 pm ET:

Check the following websites for updates:

Regardless of what happens in the courts, DACA is temporary. Tell Congress we need a permanent solution!


Caught in an Educational Dragnet: How the School-to-Deportation Pipeline Harms Immigrant Youth and Youth of Color (The Torch)

Caught in an Educational Dragnet: How the School-to-Deportation Pipeline Harms Immigrant Youth and Youth of Color

THE TORCH: CONTENTSBy Emma Tynan, Sarah Kim Pak, Ignacia Rodriguez Kmec, Mark R. Warren

MAY 19, 2022

In 2017, a high school sophomore named Alex doodled the name of his Honduran hometown and his high school mascot on a desk. This small action, which could have been addressed by asking him to wash it off, started a chain of events that led to Alex’s deportation from the United States. Alex’s family fled Honduran gang violence in search of asylum in the United States. Employing strict monitoring policies meant to remove members of the MS-13 gang from New York schools, school administrators and the resident school resource officer (SRO) misinterpreted Alex’s doodles as gang symbols. Alex’s resulting three-day suspension alerted immigration officials that he could be a “threat” to the United States, and after a lengthy detention, he was deported back to Honduras.

School-to-Deportation Pipeline

Photo by Joedamadman on Commons Wikimedia.

Unfortunately, Alex’s story is not unique. A large number of public school students are drawn into the dragnet of immigration authorities and face the threat of deportation as a result of zero tolerance discipline and policing practices in schools. Almost three-quarters of a million undocumented students attend public schools in the United States. An additional 5.1 million students have at least one undocumented parent. While undocumented students are guaranteed public education under the 1982 Supreme Court ruling in Plyer v. Doe, many face significant challenges to their education as a result of the presence of police and SROs on their campuses and school referrals to law enforcement. In fact, they face what is called the school-to-deportation pipeline.

As we document in the book Willful Defiance, the presence of SROs on school campuses rose dramatically in the 1990s. There are now over 52,000 school resource officers across the country, with concentrations in schools that serve low-income students of color, including undocumented immigrants. Research shows that SROs are often called in for routine disciplinary matters, such as a student throwing a tantrum or doodling on school property. In schools where there are SROs, students are more likely to be arrested or referred to law enforcement. This is particularly anxiety-inducing for immigrant students, who fear the ramifications of contact with law enforcement. In many cases, the local police collaborate with immigration enforcement agencies and efforts.

For immigrant students facing strict disciplinary practices or referrals to law enforcement, these decisions made in the schools can harm their status in this country. Immigration officials often use suspensions and referrals to deny immigration relief or citizenship status. This was the case with Alex, whose short suspension led to a denial of his request for asylum and his eventual deportation. Incredibly high stakes are placed on students for behaving in a manner, like wearing a t-shirt featuring Lady Gaga or flashing the middle finger, that is fairly typical for teenagers. Additionally, when deportations do occur within a family, children are faced with ripple effects on their emotional, physical, developmental, and economic wellbeing.

Oftentimes, schools provide data and information for immigration officials that can be detrimental to students. In many cases, schools experience pressure and manipulation by immigration officials that lead to the handing over of documents. There is a lack of clarity among school officials whether disclosure of information is compulsory. In some cases, immigration officials have posed as local law enforcement and have used ruses to coerce cooperation where it is not required to gain access to information or individuals. Even when the schools are reluctant to cooperate, their sharing of data—whether incidental, knowing, or under a belief that the data shared is innocuous—with immigration officials can have serious consequences for their immigrant students and tends to sow distrust within the community.

Harming the Educational Environment

Even for students who do not end up in direct contact with immigration officials, their education is significantly harmed by strict disciplinary measures and coordination with law enforcement from inside the school. As mentioned above, the presence of law enforcement within the school can cause severe anxiety in immigrant students, which often results in decline in academic performance. This fear can ripple throughout the school community and can create a climate of fear that is not suitable for learning for any student.

Student attendance drastically falls off where there is a greater law enforcement presence. In one school, attendance decreased by 60% the day after an immigration raid. When students avoid classes out of fear, they are not able to take advantage of their educational rights. The fear of deportation disturbs the learning environment for all immigrant students, even those who do not end up in the school-to-deportation pipeline.

What Can Be Done?

A major step forward would be removal of SROs from public schools. Schools need to be safe havens for all students. Instead of punitive punishment and the criminalization of students, educators can invest in restorative practices that seek to create strong and caring relationships in schools.

In addition, school districts must end the practice of sharing data with Immigration and Customs Enforcement (ICE). School officials must understand that their participation in data sharing with immigration officials is not required by law. The tactics taken by immigration officials need to be called out, so that school officials understand their rights to refuse these requests. They should follow the lead of districts like the Fairfax County Public Schools that have taken steps to protect student data as part of their sanctuary school (or “safe school”) policies and uphold the right of undocumented students to stay in school and learn.

Learn More

Additional Resources: School-to-Deportation Pipeline

Buy the Willful Defiance Book

About the Authors
Emma Tynan is a PhD student in Public Policy at the University of Massachusetts Boston, where she focuses on issues of educational equity and justice.

Mark R. Warren is Professor of Public Policy and Public Affairs at the University of Massachusetts Boston and the author of Willful Defiance: The Movement to Dismantle the School-to-Prison Pipeline (Oxford University Press, 2021).

Sarah Kim Pak is a Staff Attorney at the National Immigration Law Center where she works to advance the rights of low-income immigrants through administrative and policy advocacy, litigation, and community education.

Ignacia Rodriguez Kmec is an Immigration Policy Advocate at the National Immigration Law Center where she engages in legal and policy analysis, education, and advocacy to support the integration of low-income immigrant youth and children through access to education.

The authors are members of the People’s Think Tank on Educational Justice.