Category Archives: Uncategorized

Questions Remain Weeks After Trump Administration Fails to Reunite Children and Parents (The Torch)

Questions Remain Weeks After Trump Administration Fails to Reunite Children and Parents

THE TORCH: CONTENTS

By NILC staff
AUGUST 14, 2018

President Trump’s family separation policy has harmed about 2,500 migrant children over the past several months, and serious questions remain about how the administration is treating immigrant families once they are reunited.

Is the administration respecting immigrant parents and children’s rights in immigration court? What specific conditions have parents and children been forced to endure inside immigrant family jails? How, exactly, are migrant families being treated by our government?

To find out, we filed a Freedom of Information Act (FOIA) request last month on behalf of the Immigrant Defenders Law Center, an organization that represents several families who have experienced the cruel and inhumane consequences of the Trump administration’s family separation policies.

After the administration’s actions sparked weeks of public outrage nationwide, a U.S. district court judge in San Diego ordered the government to reunite families by July 26 and to halt the deportation of reunited families who are entitled to asylum proceedings. These orders were issued in a lawsuit filed by the ACLU, Ms. L v. ICE.

Nevertheless, here we are, weeks after the court-ordered July 26 deadline, and hundreds of children are still separated from their parents and locked away in government custody. To make matters worse, stories have emerged of U.S. Immigration and Customs Enforcement coercing parents of children from whom they are separated to sign away their rights. Trump officials have even admitted that the parents of as many as 386 children from whom the parents were separated may have been deported.

To get to the bottom of these abuses, our FOIA request seeks information regarding the following:

  • records related to the policies, forms, and checklists governing background checks and reviews for parentage
  • records related to the policies governing whether parents who have previously been released from detention will be re-detained with their children following reunification
  • what factors are considered in determining whether a family will remain detained together or released upon reunification
  • records related to the policies governing children who remain in the Trump administration’s custody whose parents have been deported

While we wait for the Trump administration to answer our request, here’s what we do know. According to research cited by the Kaiser Family Foundation, “Separating children from their parents exposes them to trauma and toxic stress that can have lifelong negative impacts on their mental and physical health.” Each day, each hour these children remain separated from their parents and families has alarming implications for their personal well-being and their families’ health.

We demand that the Trump administration stop dragging its feet. It’s time to reunite all the families it has torn apart and take responsibility for the human rights abuses it has perpetrated. NILC will not stop fighting for accountability and greater transparency. We need answers, and we need them now.


More on how the Trump administration is harming children and families

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Should I renew my DACA now? (The Torch)

Should I renew my DACA now?

THE TORCH: CONTENTS

By Ignacia Rodriguez, NILC immigration policy advocate
AUGUST 7, 2018

Lately people have been asking, Why the uptick in chatter about renewing DACA now? Starting this summer, advocates began encouraging people to renew as soon as possible, even though the option to renew has been around since January.

What changed? Remember, U.S. Citizenship and Immigration Services (USCIS) did not begin accepting DACA renewal applications voluntarily. USCIS began accepting DACA renewal applications again only because federal judges in California and New York ordered it to. Court orders, as we’ve seen most recently in the Texas case that blocked DAPA (Deferred Action for Parents of Americans) and expanded DACA and also in the Muslim ban court cases, can change over time. A judge’s order can be appealed by the party that disagrees with it, and at the appellate stage the order can continue in effect, can be paused or reversed, or can be modified.

We knew the decisions issued in these cases would probably be appealed (usually a U.S. district court decision is appealed to the court of appeals for the “circuit” corresponding to the state where that district court is located) and that at least one of these cases could then make its way all the way to the U.S. Supreme Court. The probability of an appeal became reality when the federal government appealed the decisions issued by the courts in California and New York.

Litigating a case takes time. Time is allotted for each party to submit briefs that lay out its arguments, and the court schedules hearings as necessary to hear the parties’ arguments. It is very rare for a judge to issue a ruling during or immediately after a hearing, so days, weeks, even months can go by before the judge issues a ruling. This is why, before this summer, some experts expected the DACA renewal process to be available at least through this month (August 2018) and maybe longer. In addition, the U.S. Supreme Court won’t be back in session until October, so under usual circumstances it wouldn’t hear an appeal of one of the DACA cases before then.

So what happened this summer? Back on May 1st, Texas and six other states filed a lawsuit arguing that the DACA program is illegal and shouldn’t have been created in the first place. They are asking for a court in Texas to order USCIS to stop accepting DACA applications. On August 8, U.S. District Court Judge Andrew Hanen will hold a hearing in their case in Houston, Tex.

Nobody knows for certain what will happen either during this hearing or afterwards, including how a possible negative ruling by a judge in Texas will affect the orders issued by federal courts in California and New York. It is unlikely that Judge Hanen will issue a ruling or order on August 8. But some experts think it’s at least possible that USCIS could stop accepting and processing DACA renewal applications as early as the end of August. Depending on what happens in the courts, the option to renew may remain indefinitely or may be modified or eliminated by decisions in these district courts, circuit courts of appeals, or the U.S. Supreme Court.

Should you renew your DACA now, even if your DACA expires in February 2019? May 2019? December 2019? You will need to decide whether it makes sense for you to apply for DACA renewal now. We highly encourage you to speak with an attorney or a Board of Immigration Appeals–accredited representative before you submit a renewal application, to discuss the possible benefits and risks of applying early. Some attorneys or accredited representatives may advise you against applying now, because USCIS used to not accept renewal applications filed more than 150 days before the applicant’s DACA expiration date. However, since it became possible again, in January, to apply for DACA renewal, USCIS has accepted renewal applications filed more than 150 days before expiration.

Still, you must consider the risks and benefits of applying early. Considerations include but are not limited to:

• If you apply early, USCIS could deprioritize your application and, while you’re waiting for your case to be processed, the option to renew may end. If the option to renew ends, USCIS may “grandfather in” already-accepted applications and continue processing them or USCIS may stop processing already-accepted applications and may return the application fees that were submitted with the unprocessed applications (like what happened when DACA and advance parole for DACA recipients were terminated in September 2017). Can you afford to lose the $495 fee if USCIS decides not to return fees? Can you afford to send your application by certified mail, to have an additional way of tracking it, to prove that it should be “grandfathered in” if the government decides to process already-submitted applications?

• If you apply early and are granted DACA renewal, your “new” DACA and work permit may start being valid before your “old” DACA and work permit expire. Nevertheless, your new work permit will expire two years after its date of approval. Currently, it’s taking USCIS about 3-5 months to adjudicate an application, but some applications have been adjudicated faster.

Example: Your current DACA and work permit expire in December 2019. You submit a renewal application today, and USCIS accepts it. USCIS grants your DACA renewal in October 2018. Therefore, your renewed DACA and work permit will expire in October 2020. In other words, by applying now, you may gain a total of only 10 more months of DACA and work authorization. You must ask yourself: Is having those 10 additional months of DACA worth the effort and expense of applying? Will I feel more at peace knowing I have more time with DACA, even if it’s only 10 months? What will I feel like if the court orders that require USCIS to accept DACA renewals remain in effect for months or even years?

If you decide to go ahead and apply now, we recommend doing so as soon as possible, since the situation with the court cases is so uncertain. We wish we could answer with a simple “yes” or “no” when people ask us whether they should apply now, but, along with everyone else, we simply don’t know now what will happen in the courts in the next weeks and months. But we will continue to provide information and updates to help you plan for your future.

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Where Are the Children? Not in Trump’s Priorities (The Torch)

Where Are the Children? Not in Trump’s Priorities

THE TORCH: CONTENTS

By Mayra E. Alvarez, President, The Children’s Partnership
JUNE 26, 2018

Around the world and on both sides of the political aisle, the safety of children is upheld as a universal value. The U.S. has established special protections for children — courts may give special consideration to what is in the best interests of a child in issuing judgments about their well-being. The children of the president and other elected leaders are traditionally “off limits” to reporters. Even celebrities are afforded a degree of privacy from the paparazzi to ensure their children’s safety. With good reason, it is understood that children deserve special status and need to be protected and taken care of — not only by their parents, but by all of us in society. Yet that universal value has been abandoned by the Trump administration, as it recklessly implements policies that separate children from their families, inflicting serious trauma.

Since the beginning of the Trump administration, harsh immigration policies and anti-immigrant rhetoric have instilled a deep and growing fear inside many communities, threatening the health, security, and well-being of children in immigrant families. Eighteen million children in the U.S. — 4.5 million children in California alone — are part of an immigrant family, many living in fear as to what may happen if their parent is deported or detained. Millions of Dreamers are stuck in limbo, uncertain of their long-term future. Workplaces are being raided and detained mothers and fathers taken away from their children. Parents who were once protected by temporary protected status (TPS) now must decide whether to leave their U.S.-citizen children behind or take them to countries still reeling from disaster.

Most recently, the troubling “zero tolerance” policy, which imposes criminal penalties meant to deter immigrant families from coming to our country seeking asylum, is just another example of this administration’s attack on children.

Dr. Colleen Kraft, the president of the American Academy of Pediatrics, referred to the separation of children from their parent as “government-sanctioned child abuse.” Separating children from their parents causes them trauma and toxic stress that can have lifelong negative impacts on their mental and physical health. In the short term, the trauma and stress impair a child’s ability to concentrate, remember things, and control and focus their own thinking. In the long term, they place children at risk of heart disease, diabetes, and cardiovascular disease.

Click on infographic to enlarge.

From the children directly impacted by the separations to the millions of children in immigrant families across the country, the damage is done. In a survey The Children’s Partnership conducted of health providers in California, 90 percent reported an increase in children experiencing anxiety and fear related to their heightened awareness of the possibility of detention and deportation, because of the current national climate. These negative health impacts due to unjust policies that separate families go against American values of inclusion and equality. Whether it happens at the border, through detention, or deportation later in life, the damage is detrimental.

What’s worse? The executive order signed last week by President Trump is not a solution. First, it does nothing to address the trauma experienced by more than 2,000 children already separated from their parents. Second, it seems to say that imprisoning whole families is an acceptable path forward when we know family detention has repeatedly been found to be unsuitable for children. The inhumane conditions that these children face while in detention centers — caged, as well as physically and emotionally neglected — are devoid of compassion and decency. This simply trades one source of childhood trauma for another.

The climate of fear, the separation and detention of families, and the uncertainty of the future compels every American to ask, “Where are the children?” in the Trump administration’s priorities. Children in immigrant families are enduring toxic stress, anxiety, and other longstanding negative health impacts due to unjust policies that separate families, traumatize children, and go against American values of protecting children. As an organization that focuses on putting our children’s well-being first in policymaking, The Children’s Partnership denounces the Trump administration’s policies and implores Congress to stop these cruel practices, put our nation’s values into action, and advance policies that defend and protect the dignity and rights of all children.

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Trump Executive Order Makes Border Crisis Worse

FOR IMMEDIATE RELEASE
June 20, 2018

CONTACT
Hayley Burgess, media@nilc.org, 202-805-0375

Trump Executive Order Makes Border Crisis Worse

Jailing families is not a solution

WASHINGTON — President Trump has signed an executive order mandating that families be jailed by the U.S. Departments of Homeland Security or Defense. This order will likely have the effect of jailing, for months or even years, immigrant families seeking safety in the U.S. The National Immigration Law Center has long decried the practice of jailing immigrant families, filing lawsuits when necessary to defend their rights. Below is a statement from Marielena Hincapié, executive director of the National Immigration Law Center, who visited family detention facilities in 2014:

“The Trump administration has created a crisis and committed horrific human rights abuses by separating children from their parents at the border. Clearly on the defense, today it used a political sleight of hand to try to placate Americans who have been rightly outraged by their government’s repugnant policies, including separating children and babies from their parents and housing them in cages.

“Jailing families is not an acceptable solution to putting children in cages. The best — and safest — place for these children is with their families and in their communities. The Trump administration pretends that alternatives to detention don’t exist. This is false. There are numerous alternatives that are both more humane and less costly, but this president refuses to use them. Our country has a system in place to process asylum claims, and these families should be allowed to go through this legal process.

“The Trump administration may not care much for the basic constitutional rights of people seeking safety. We do, and we’ll work with communities and in courtrooms to protect them. Not a single one of us should be standing on the sidelines as this administration inflicts lifelong trauma on these children. It is up to all of us to hold this administration accountable and stop this nightmare.”

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Untangling Trump’s Mass Deportation Agenda (The Torch)

Untangling Trump’s Mass Deportation Agenda

THE TORCH: CONTENTS

By Mahnoor Hussain, SAALT policy associate
JUNE 13, 2018

Since its colonization of indigenous lands, the United States has built its immigration policies on principles of racial exclusion and exploitation. The immigration struggles that our communities face today are not unique to the Trump administration but are the culmination of a series of discriminatory policies on which this country was built.

  • The Naturalization Act of 1790 established citizenship for “free white persons,” excluding millions of enslaved African Americans who were forced to give their lives and freedom to build America.
  • The Immigration Act of 1882 allowed screening of arriving passengers to bar the entry of those deemed a “convict, lunatic, idiot, or person who may become a public charge.”
  • The Chinese Exclusion Act of 1882 suspended immigration of Chinese laborers and set a precedent for the establishment of discriminatory race- and class-based immigration laws in the U.S.
  • In 1996, the Clinton administration implemented the Illegal Immigration Reform and Immigrant Responsibility Act, which laid the groundwork for the immigrant criminalization and deportation policies we have today.
  • In 2002, the Bush administration launched the Secure Communities program and began 287(g) agreements, essentially deputizing local police officers with immigration enforcement power, which paved the way for current anti-sanctuary legislation in states across the country.

Under the Clinton administration, 12 million deportations occurred between 1993 and 2000; under the Bush administration, over 10 million deportations occurred between 2001 and 2008; and under the Obama administration, 5 million deportations occurred between 2009 and 2016. President Trump is exploiting the tools and infrastructure set in place by previous administrations to (1) expand the definition of who should be banned and deported and (2) militarize federal agencies and build up the deportation machine.

The MUSLIM BAN is linked to REFUGEE policy, which is linked to TPS, which is linked to DACA, which is linked to H1-B AND H-4 VISA policy, which is linked to WORKSITE RAIDS, which are linked to FAMILY IMMIGRATION, which is linked to DENATURALIZATION, which is linked to DEPORTATION, which is linked to INCARCERATION — which all together comprise a broken immigration system.

By terminating the Deferred Action for Childhood Arrivals (DACA) program, rescinding temporary protected status (TPS) for people from certain countries, issuing the Muslim ban, and banning certain refugees, the current administration has made clear that its agenda is to bar entry of immigrants and deport both documented and undocumented individuals. Our immigration struggles are linked to this larger agenda of exclusion and expulsion.

In January 2017, President Trump signed an executive order essentially prohibiting people from seven Muslim-majority countries from entering the U.S., a policy now referred to by many as the Muslim ban. As a result of legal challenges brought against it, Trump has issued three different iterations of the ban, the third of which is awaiting a decision by the Supreme Court. Refugees who are racialized as Black and/or Muslim have also been barred from entering the country. In the first three months of 2018, 5,225 refugees have been resettled in the United States, a 65.8 percent drop from the first three months of 2016. Only 11 Syrian refugees have been granted entry into the U.S. in 2018. In June 2018, Attorney General Jeff Sessions and the U.S. Department of Justice established a “zero tolerance policy” to criminally prosecute asylum-seekers as they enter the U.S. This administration has not only made it impossible for immigrants of color to enter the U.S., but has forced our communities to live in constant fear of deportation.

Individuals from countries on the Muslim ban list, such as Syria, Somalia, and Yemen, are also facing the rescission of temporary protected status (TPS). TPS enables nationals of designated countries who are in the U.S. to live and work here if their country is facing war, disease, or natural disaster. Often these conditions are a result of previous U.S. intervention in these countries and result in long-term, endemic challenges that require decades of recovery.

Desis Rising Up and Moving (DRUM), based in New York City, coproduced (with MoveOn and United We Dream) a video that connects the fight to protect DACAmented and undocumented folks with the fight against the Muslim registry. DRUM is also addressing an additional concern about personal information provided by both TPS and Deferred Action for Childhood Arrivals (DACA) recipients being at risk of cross-agency data sharing. There is no guarantee that U.S. Citizenship and Immigration Services (USCIS) information on current and former recipients of TPS, DACA, and their undocumented family members is not accessible by U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP). Undocumented immigrants and temporary visa–holders registered for these programs in confidence that their personal information would not be used to deport them, and now their trust and safety may be violated.

This administration has drawn a wedge between recipients of DACA and H1-B and H-4 visa–holders. Some H-4 visa recipients feel that their struggle has been overlooked by the “noise” on the DREAM Act. This administration uses divisive tactics to make it harder for immigrants to stay in the U.S., whether they are H1-B and H-4 visa–holders or TPS or DACA recipients. If and when these groups lose their status, they become part of the ever-expanding population that’s particularly vulnerable to being deported. This is an opportunity to confront the larger white supremacist deportation agenda led by this administration, which has failed to create meaningful pathways to permanent residence and citizenship for all immigrant communities.

As part of this administration’s ongoing deportation agenda, the last six months alone have seen the largest workplace raids under the Trump administration. Nearly 200 individuals were arrested and detained in Tennessee and Ohio, and one-hundred 7-Eleven stores were raided across the country.

In their continued attack on low-income immigrants and families, the Trump administration is intending to expand the criteria for finding that a person is likely to become a public charge, i.e., likely to become dependent on the government for subsistence. An immigrant found likely to become a “public charge” may be denied a visa or lawful permanent resident status. Under a new proposed rule whose provisions were leaked to the press earlier this year, a person could be found likely to become a public charge if they were unemployed, retired, and/or disabled — or if their U.S. citizen children benefit from the Children’s Health Insurance Program (CHIP), SNAP (“food stamps”), or if they attend Head Start. Penalizing immigrants for utilizing social services is a calculated policy by this administration to limit legal permanent residence, and it represents a direct attack on the possibility of immigrant families here reuniting with their loved ones abroad who are seeking to immigrate.

Another deliberately anti-immigrant piece of legislation, H.R. 4760, the Securing America’s Future Act (also known as the Goodlatte bill), which will come to a vote any day now and is being framed as a compromise solution for DREAMers, attacks family immigration by cutting entire categories of visas that help families reunite. The Goodlatte bill also would criminalize the undocumented population by making their mere presence a criminal violation. The bill also would separate vulnerable children and families seeking asylum at the border by sending parents to criminal proceedings and inhumanely placing their children in detention centers hundreds of miles away. Despite all these unimaginable enforcement-oriented provisions, the bill provides only temporary second-class protection to DACA recipients.

This administration doesn’t limit its deportation targets only to visa-holders and undocumented immigrants, it is also quietly denaturalizing and deporting naturalized citizens through the U.S. Department of Homeland Security’s (DHS’s) Operation Janus. According to USCIS, failure to comply with any eligibility requirement for naturalization is subject to revocation of naturalization. DHS identified about 315,000 cases of “missing” fingerprint data from the centralized digital fingerprint repository. The U.S. Department of Justice filed civil denaturalization complaints against Baljinder Singh of New Jersey, Parvez Manzoor Khan of Florida, and Rashid Mahmood of Connecticut under Operation Janus. In January 2018, Baljinder Singh was denaturalized by the USCIS.

The administration has used an anti-immigrant and xenophobic political framework to promote an intersectional web of negative policies that affect all of our communities, and we must use an intersectional analysis to counter this violence and discrimination.

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What to Look for in Any “DACA Solution” (The Torch)

What to Look for in Any “DACA Solution”

THE TORCH: CONTENTSBy Ignacia Rodriguez, NILC immigration policy advocate
JUNE 14, 2018

Earlier this year, on February 15, the U.S. Senate debated and voted on immigration-related bills and amendments, all aimed at solving the crisis created by President Trump’s decision to terminate the DACA (Deferred Action for Childhood Arrivals) program. However, the Senate ended up not approving any of the proposals or bills. Of the four amendments they voted on, one that mirrored President Trump’s proposal received the least support, with only 39 votes. The bipartisan USA Act, sponsored by Senators John McCain (R-AZ) and Christopher Coons (D-DE), which included a pathway to U.S. citizenship for immigrant youth as well as immigration enforcement–related provisions, garnered majority support but fell shy of the 60 votes needed to proceed.

Over the past few weeks, there has been a lot of buzz about a discharge petition that, if it had received enough signatures, would possibly have forced a vote on the “Queen of the Hill” resolution, which would bring four immigration measures to a vote in the U.S. House of Representatives. However, the discharge petition fell shy of receiving enough signatures this week. Now attention is focusing on the proposed Securing America’s Future Act of 2018 (also known as the “Goodlatte bill,” after its sponsor, Rep. Bob Goodlatte, R-VA) and a “compromise bill” that mirrors the White House anti-immigrant wish list, which could be brought up for a vote next week.

As these developments unfold, it’s important to pause, reflect on, and take some lessons from what’s taken place in Congress over the past few months with regard to immigration legislation. And we need to continue emphasizing the need for our Republican and Democratic legislators to enact a narrowly tailored solution that will provide permanent immigration relief to our DACA-eligible neighbors and friends.

What are some of the elements that any truly effective DACA solution should contain? In other words, what questions should we be asking when evaluating the legislative proposals we’ve seen thus far or any new proposals that may be offered?

First, does the proposal provide a path to citizenship? Early on, the BRIDGE Act was introduced to provide a path by which certain immigrant young people would be able to legalize their immigration status, but it did not include a path to U.S. citizenship. Essentially, it would have placed the DACA program into the immigration statute, making it a law rather than an administrative policy. Although various bills introduced after the BRIDGE Act included provisions for permanent relief (including the ultimate possibility of U.S. citizenship), the Goodlatte bill would instead take several steps backwards. For example, it proposes that immigrant youth become a completely new category of immigrants, to be known as “contingent nonimmigrants,” and that they receive authorization to live and work in the U.S. for a three-year period that could be renewable but would include no path to citizenship.

Immigrant youth deserve permanent immigration relief that provides a path to U.S. citizenship, with all the rights citizens have; anything less would be relegating those who are granted the proposed new status to a permanent second-class existence in this their de facto home country. Any bill that simply makes the current DACA program permanent by codifying it — making it part of the immigration statute — would create a situation in which people with DACA would have to periodically and continually renew it, perhaps for the rest of their lives. Immigrant youth, like everyone else, need and deserve long-term stability.

Second, if the proposal provides a path to U.S. citizenship, is it a reasonable one? What are its requirements? How long would the person have to wait before being eligible to apply for citizenship? The longer the wait, the more insecurity people will feel about applying, since the program they’re counting on could conceivably be rescinded by Congress. Even if such a development is unlikely, remember that immigrant youth have experienced the ups and downs of having the government make DACA available and then take it away. So any lack of trust they have in the government is well-earned by the latter; going forward, they need a secure and reliable path that they can count on.

Third, is the path to citizenship fair? For example, minimum and maximum age requirements should be evaluated critically. An amendment (No. 1958) to the Immigration Security and Opportunity Act, introduced by Senators Rounds (R-SD), King (I-ME), and Collins (R-ME), includes an age cap of 38; and an amendment (No. 1959) to the Secure and Succeed Act, introduced by Sen. Grassley (R-IA), includes an age cap of 31 — i.e., to be eligible to apply for the immigration benefit, a person must have not been older than either age 38 or 31, respectively, on June 15, 2012, the date when the DACA program was announced. Sen. Grassley’s amendment also provides that, to be eligible, the immigrant must have arrived in the U.S. by the age of 16 (rather than 18), thus excluding many minors from a program intended to provide relief for immigrant youth. If someone meets every other requirement to qualify for relief, why should they be excluded for the one thing they have no control over: their age when they arrived in the U.S. and/or their age on June 15, 2012?

Fourth, what’s the real cost of applying? For example, under Sen. Grassley’s amendment to the Secure and Succeed Act, an applicant who is 18 or over would have to “sign, under penalty of perjury, an acknowledgement confirming that the alien was notified and understands that he or she will be ineligible for any form of relief or immigration benefit … other than withholding of removal … or relief from removal based on a claim under the Convention Against Torture” if they violate any ground of eligibility for conditional temporary resident status. In other words, in exchange for receiving relief, which could be taken away, they would have to waive the ability to seek most other forms of immigration relief in the future.

The grounds of eligibility for conditional temporary resident status under the bill include ones the U.S. Department of Homeland Security has the authority to alter and redefine. For example, one such ground is that an applicant is not likely to become a “public charge” — and for months it’s been known that the Trump administration is in the process of expanding the criteria for finding that a noncitizen is or is likely to become a public charge (see, for example, NILC’s issue brief Changes to “Public Charge” Instructions in the U.S. State Department’s Manual).

And under the Rounds-King-Collins amendment, a person granted relief under the Immigration Security and Opportunity Act would not be allowed to sponsor their parents for immigration relief if the parents knowingly assisted the person in entering the U.S. unlawfully. Many young immigrants would feel severely conflicted about applying for much-needed immigration relief through a process that criminalizes and punishes their parents. Applying for immigration relief should not put immigrant youth or their families at risk in the future.

Fifth, does the proposed DACA fix include other unacceptable trade-offs? Immigrant youth have made it clear that they won’t allow their lives and futures to be used as bargaining chips so the Trump administration and Trump’s allies in Congress can further a harmful and racist anti-immigrant agenda. Thus, any DACA fix that isn’t narrowly tailored should be evaluated carefully and critically. Legislative proposals including a DACA fix have included at least some of the following proposed provisions:

  • Permanent changes to family immigration sponsorship — for example, no longer allowing any citizen to sponsor their adult child for immigration relief.
  • An end to the Diversity Visa Program, which would predominantly affect migration from Africa and Asia.
  • More funding and intrusive technology for border enforcement.
  • Attacks on policies adopted by states, cities, and localities intended to build trust between all residents (including immigrants) and local authorities.

Therefore, it’s critically important to carefully read and evaluate any proposed bill. The public messaging about a bill may be focused on “protecting DACA and immigrant youth,” but we must look at the entire bill and understand any potential harm it may have on immigrant communities and broader communities of color. It’s usually the case that, until you read a bill section by section, you can’t really tell what its real purpose is, regardless of its title.

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What Does the Masterpiece Cakeshop Ruling Mean for Immigrant Communities? (The Torch)

What Does the Masterpiece Cakeshop Ruling Mean for Immigrant Communities?

THE TORCH: CONTENTSBy Josh Rosenthal, NILC staff attorney
JUNE 5, 2018

In a narrow ruling announced yesterday, the U.S. Supreme Court reversed the Colorado Civil Rights Commission’s citation of a Denver-area bakery, Masterpiece Cakeshop, for having violated Colorado’s public accommodations law by refusing to create a cake for the wedding of a same-sex couple, Charlie Craig and David Mullins. In Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Court based its reversal of the state commission’s decision on a finding that the commission had shown a bias against the bakery owner’s religious beliefs.

Public accommodations laws provide important protections for LGBT and non-LGBT immigrants

Public accommodations laws are intended to ensure that everyone can participate in the U.S. society and economy, regardless of their membership in a protected group. As the hashtag says, public accommodations laws help ensure that businesses are #OpenToAll. At the federal level, Title II of the Civil Rights Act of 1964 (42 U.S.C. § 2000a) prohibits discrimination on the basis of race, color, religion, or national origin by restaurants, hotels, gas stations, and places of entertainment. The Americans with Disabilities Act further provides that people with disabilities have access to a wider range of public accommodations.

In addition to these federal protections, 45 states and the District of Columbia have their own public accommodations laws. These laws provide for equal access to a wider range of businesses and may include protections based on sexual orientation, gender identity, marital status, age, or other personal characteristics. These protections are inconsistent, however: Only 22 states prohibit sexual orientation–based discrimination in public accommodations, and only 19 prohibit discrimination on the basis of gender identity.

In its Masterpiece Cakeshop opinion, the Supreme Court recognizes the importance of public accommodations laws. The Court cites the long “history … of civil rights laws that ensure equal access to goods, services, and public accommodations,” which exist to prevent “community-wide stigma” and ensure that members of protected groups can “acquir[e] whatever products and services they choose on the same terms and conditions as are offered to other members of the public.”

Public accommodations laws thus provide essential protections for the approximately one million immigrants who identify as LGBTQ (including an estimated 10 percent of DACA recipients), as well as for other immigrants who may face bias on the basis of their race, skin color, religious beliefs, or ethnicity.

Religious beliefs are not a license to deny goods or services to a member of a protected class

The Court reaffirmed the longstanding principle that “[religious and philosophical] objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.” For example, in Newman v. Piggy Park Enterprises, Inc., 390 U. S. 400, 402, n. 5 (1968) (per curiam), the Court rejected the idea that the owner of a barbecue restaurant could avoid complying with public accommodations law because he held a religious objection to racial integration. The Court made clear that similar religious beliefs cannot be used to justify discrimination on other bases either, including against gays and lesbians. Nor should religious beliefs shield discrimination against trans or gender nonconforming individuals.

However, the Court did leave open the possibility that individuals may refuse to provide certain expressive services, notwithstanding public accommodations laws, if providing the good or service would require the individual to “exercise the right of his own personal expression for the [customer’s] message, a message he could not express in a way consistent with his religious beliefs.” Because the Court did not resolve this issue, it is not clear what kinds of goods and services, if any, would fit in this category. The question may be resolved by this case on remand to the Colorado court system or by other cases that are being presented to state and federal courts, including the Supreme Court.

Biased statements by officials are relevant to determining whether an apparently neutral decision is legitimate

The Supreme Court ultimately decided this case by finding that the Colorado Civil Rights Commission failed to provide the baker with “neutral and respectful consideration” of his religious beliefs. The Court pointed to statements by a commissioner that described the baker’s religious beliefs as “despicable” and other statements that the Court interpreted to be “inappropriate and dismissive comments showing lack of due consideration for [the owner’s] free exercise rights and the dilemma he faced.” The Court also noted that the commission apparently applied a different standard to the baker than it had to other bakers who refused to bake cakes with anti-gay messages.

Several commentators have noted similarities between the “official expressions of hostility” to religious beliefs in this case and the anti-Muslim comments made by President Trump in relation to his Muslim ban executive orders. It remains to be seen whether the Court will take Trump’s comments as seriously, while it considers the constitutionality of the administration’s Muslim ban in the Trump v. Hawaii case. However the Court rules, NILC is committed to fighting for #NoMuslimBanEver.

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The Promise of America? (The Torch)

The Promise of America?

THE TORCH: CONTENTSBy Ramla Sahid
MAY 8, 2018

Ramla Sahid on the steps of the U.S. Supreme Court.

Early in the morning late last month, while it was drizzling, cold, and still a little dark, I stood with a dozen others on the steps of this country’s highest court feeling a lot of anxiety and some hope as I waited in line to get a seat for the oral arguments in Trump’s latest Muslim ban.

When we were ushered into the gallery of the Supreme Court of the United States on April 25, 2018, I sat down on an observer bench near the mid-right corner of the audience and felt the weight of that room. Sitting there, apprehensively waiting for the oral arguments in Trump v Hawaii to begin, knowing how consequential the ultimate decision would be, I reminded myself that the fight for justice and freedom is a constant, and that whatever the result, our task is to keep that fight alive. As a former refugee from Somalia, one of the banned Muslim-majority countries, my foremost thought was, “The promise of America should be open to every human being, regardless of how they pray and how they worship.” My fear, though, was that the justices might not be taking that promise into account.

The presidential proclamation being reviewed by the Court that day was Trump’s latest directive on this issue, announced in September 2017, similar to his two previous executive orders that federal courts barred from being implemented because they were clearly intended to express Trump’s unconstitutional hostility to Muslims. Those Muslim bans were discriminatory and illegal because they banned entire populations of people based upon their religion (using national origin as a proxy).

The September proclamation has the effect of indefinitely banning from entering the U.S. people from Iran, Libya, Somalia, Syria, and Yemen — all Muslim-majority countries — and this ban is currently in effect. Its results are broken families, deferred dreams, lack of access to life-saving medical treatment, and a perversion of American principles and values. My own family fled the civil war in Somalia when I was five years old, so I know from firsthand experience what these thousands of families, students, academics, and skilled workers are experiencing, and I can imagine what it would mean to be told that the promise of America is no longer open to you.

The Trump administration’s lawyer, Noel Francisco, argued that latest directive was based on a lengthy “worldwide, multi-agency review,” but the president’s own tweets belie that fantasy. Even as the Court was considering whether to hear this case, Trump tweeted, in response to the September 15, 2017, bombing of a London subway, “The travel ban into the United States should be far larger, tougher and more specific — but stupidly, that would not be politically correct!” During his campaign for the presidency, Trump called for “a total and complete shutdown of Muslims entering the United States.”

Though given many opportunities to backtrack on that declaration, he never has, and as recently as April 30th reiterated that there was “no reason to apologize.” This statement alone undercuts Francisco’s argument that the president had disavowed his campaign rhetoric. It’s hard to predict the outcome, but I hope that the justices reject this unilateral effort to legislate unfounded fear, discrimination, and bigotry.

But there is hope. Hope because I was able to be there to bear witness to this historic moment with my community of Muslim, Arab, South Asian, and African activists from all over the country, as well as allies supporting our communities’ call for religious freedom and fairness. Our presence was felt inside and outside. And the rally held outside the Supreme Court that morning replenished my energy.

Yes, we are being threatened in bold ways, and our communities are under constant assault. But this hasn’t happened spontaneously. In fact, this is the reality of America for far too many of its citizens and residents. So we do what we have always done in this country. We resist. We continue to educate and politicize our people and allies, we organize, and we build a more connected and accountable multiracial movement.

Ramla Sahid is executive director of Partnership for the Advancement of New Americans.

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3 Important Points to Know about Texas’s DACA Lawsuit (The Torch)

3 Important Points to Know about Texas’s DACA Lawsuit

THE TORCH: CONTENTSBy Ignacia Rodriguez, NILC immigration policy advocate
MAY 4, 2018

On May 1, 2018, Texas and six other states filed a lawsuit against the federal government challenging the legality of the Deferred Action for Childhood Arrivals, or DACA, program. They filed the case in the U.S. District Court for the Southern District of Texas, where it ended up being assigned to Judge Andrew Hanen. He’s the same judge who in 2014 issued an injunction that blocked the Obama administration’s expansion of the DACA program and the related Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA, program.

Naturally, Texas’s latest lawsuit has created confusion and concerns about what it means for immigrant youth and the fight to protect immigrant families across the country.

Here are three important points to know about the Texas lawsuit:

1. Judge Hanen in Texas cannot undo the California and New York injunctions (currently in place) that protect DACA recipients from President Trump’s unlawful actions. Both court orders require U.S. Citizenship and Immigration Services (USCIS) to accept DACA renewal applications. Only the circuit courts of appeal corresponding to those states and the U.S. Supreme Court have the authority to undo either injunction. No case related to DACA is expected to go before the Supreme Court until after this summer. The Texas lawsuit does not change that situation.

2. USCIS is still accepting DACA renewal applications. If you are eligible to renew your DACA, we recommend that you apply to do so at this time. Here’s the reality: We don’t know what will happen next, so having DACA for an additional two years may provide some peace of mind for you and your family as all these DACA-related court cases make their ways through the courts.

3. Your voice and efforts are making a real difference. The states that filed the latest lawsuit in Texas are among the same states that sued to block the Obama administration’s expansion of DACA to protect additional immigrant youth as well as its creation of DAPA. DAPA would have allowed certain parents of U.S. citizens and lawful permanent residents to apply for and receive temporary protection from deportation as well as work permits. That first lawsuit, which was filed in the same federal court district as the present one, became known as U.S. v. Texas after the Obama administration appealed Judge Hanen’s nationwide injunction blocking DAPA and expanded DACA.

The U.S. v Texas lawsuit against DAPA and DACA+ included 26 plaintiff states. The letter from some of these states threatening to sue the federal government if DACA were not terminated bore the signatures of state officials from only 9 states. The latest lawsuit was filed by only 7 of the 26 states that sued in U.S. v. Texas.

The progress we’ve made is clear. As support for protecting Dreamers and their families continues to grow, many states and localities are hearing our voices. In fact, state officials should keep in mind that the vast majority of Americans support DACA. This indisputable fact is a testament to the work of immigrant youth and their allies. Together we must continue highlighting the importance of the DACA program and pushing for congressional action to protect immigrant youth and their families. We need the Dream Act now!

RELATED
FAQ: USCIS Is Accepting DACA Renewal Applications
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Government’s Supreme Court Argument Tries to Divorce from Trump’s Own Words and Record His Ban on Travel from Muslim-majority Countries (The Torch)

Government’s Supreme Court Argument Tries to Divorce from Trump’s Own Words and Record His Ban on Travel from Muslim-majority Countries

THE TORCH: CONTENTSBy Esther Sung, NILC staff attorney
APRIL 25, 2018

Today, after two executive orders, one presidential proclamation, and fifteen months of litigation, the U.S. Supreme Court finally heard oral arguments on the legality of President Trump’s Muslim ban.

The current version of the ban blocks from entering the U.S. most travelers and immigrants from six Muslim-majority countries — Chad, Iran, Libya, Somalia, Syria, and Yemen — although Chad was recently removed from this list after improving its “identity-management and information sharing practices.” The ban also blocks travelers and immigrants from North Korea and certain Venezuelan government officials and their families.

Despite having itself been blocked by two U.S. district courts, the ban has been in place since December 4, 2017, when the Supreme Court allowed it to go into effect while it was being litigated. The U.S. State Department recently reported that in the first month of the ban, only two out of 8,406 visa applicants directly impacted by the ban were granted waivers allowing them to enter the U.S.

Indeed, of particular concern to Justices Breyer and Sotomayor in today’s argument was the possibility that the ban’s waiver provisions are merely “window dressing.” Justice Breyer pointed out that a significant number of people seeking visas probably fit within the exemplars expressly identified in the presidential proclamation as potentially eligible for an exemption from the ban. Although both justices pressed the government to explain what mechanisms are in place to ensure that the ban’s promise that waivers are available “is, in fact, a real waiver process,” the government was unable to provide substantive information about the availability of waivers. The government was only able to represent that approximately 400 individuals have received waivers — but, as Justice Breyer pointed out, 400 is paltry in comparison to the 150 million people the proclamation bans from entering the U.S.

Instead, the government focused on defending the ban before the Court as the product of a “multi-agency worldwide review that applied neutral criteria.” Throughout its argument, the government took pains to distance the ban not only from its predecessor executive orders, but also from President Trump and the many anti-Muslim statements he has made throughout his candidacy and presidency.

Neal Katyal, representing the ban’s challengers, argued that if the Court adopts the expansive view of executive power advanced by the government, the Court will be giving the president the power to line-item veto any provision of the country’s immigration laws that he wants to override. He argued that the ban countermands Congress’s finely reticulated immigration scheme, violates the Immigration and Nationality Act’s prohibition against nationality-based discrimination in the issuance of immigrant visas, and denigrates Islam in violation of the First Amendment.

It was clear that the government’s strategy depended on stripping the ban of its history and context so that the government could divorce the ban from President Trump’s many anti-Muslim statements and thereby argue that the ban is a permissible exercise of executive power. But by doing so, the government could only duck and weave around the overwhelming evidence of the president’s anti-Muslim animus, rather than confronting it head-on.

Among those present for today’s argument were Senator Mazie Hirono of Hawaii; Karen Korematsu, the daughter of Fred Korematsu, the named plaintiff in Korematsu v. United States, which upheld the imprisonment of Japanese-Americans in World War II; and Lin-Manuel Miranda, Pulitzer Prize–winning author of the musical “Hamilton.” Friend-of-the-court briefs calling on the court to strike down the ban had been filed by retired government officials and military officers; various states and major cities and counties; Amazon, Facebook, and over a hundred other companies; Catholic bishops and numerous other clergy of several different religions; universities and other institutions of higher learning; and Karen Korematsu and other children of Japanese-Americans who were held in internment camps during World War II.

A recording of today’s argument is available here; a transcript of it is available here.

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