Category Archives: Uncategorized

Judge Ketanji Brown Jackson’s Understanding of the Power of Language Is a Welcome Addition to the Supreme Court (The Torch)

Judge Ketanji Brown Jackson’s Understanding of the Power of Language is a Welcome Addition to the Supreme Court


APRIL 7, 2022

At the recent hearings before the Senate Judiciary Committee, Sen. Alex Padilla (D-CA) asked Judge Ketanji Brown Jackson about her seemingly “conscious choice” to avoid harmful language in her legal writings to acknowledge the inherent humanity of all people who come before her court, including immigrants.

“Judges are the only branch of government who are required to write our opinions, to explain our decisions,” Judge Jackson responded. “I have long believed, in that capacity, that our clarity and language matters.”

Judge Jackson’s clear understanding of the power of naming in the pursuit of equal justice under the law only further demonstrates the urgent need to confirm her to the United States Supreme Court.

Photo on Wikimedia Commons

As a federal judge, Judge Jackson has grappled with difficult legal questions with significant impact on immigrant communities. In each of these cases, Judge Jackson did what we would want and expect any good judge to do—weigh the facts of each case with relevant law and precedent to render a decision.

While not all her decisions have been favorable to immigrants, she has consistently and deliberately forgone the use of terms like “illegal” or “alien” when describing immigrants in all her cases. Writing in two separate cases concerning immigration policy, Judge Jackson rejected the dehumanizing terms, which historically appear in statutes and other legal writings, and instead used the terms “undocumented” and “non-citizen.”

Some may not immediately realize the significance of this intentional use of language. But for those of us fighting for immigrant justice, it’s a noteworthy and encouraging shift with consequences that reverberate beyond the courtroom.

Anti-immigrant forces have long weaponized dehumanizing language to advance their political interests. No one in recent history has done so to greater effect than Donald Trump, whose extreme anti-immigrant rhetoric represented the culmination of decades of escalating efforts to scapegoat immigrants, stoke fear, and divide Americans to retain power.

Advocates for immigrants’ rights, in contrast, have worked for years to push lawmakers to drop the use of these de-humanizing terms. These successful efforts have prompted local governments to remove such terms from official documents and sparked debates at federal agencies about doing the same, including the Library of Congress. Within months of taking office, President Biden directed immigration agencies to stop using “illegal alien” in favor of “undocumented non-citizen.”

Advocates have similarly pushed news organizations to rethink their language. In 2013, the Associated Press, whose stylebook is often referenced by other newsrooms, decided to stop using “illegal” to describe a person. And while debates about language continue in newsrooms, other news organizations have made similar editorial decisions.

The truth is that naming does matter. And when it comes to the law, it matters even more.

Throughout history, the Court has influenced American culture and public opinion – for better and worse – through its use of language. Decisions in Dred Scott and Plessy, for example, each used language that dehumanized Black Americans to legitimize and perpetuate the racist and unequal treatment of Black people. Both rulings are now broadly regarded as some of the Court’s gravest errors. But language can also accelerate greater social change, as was the case with Obergefell and the advancement of marriage equality for LGBTQ people. A justice who understands the power of language in the law is a welcome addition to the Court.

As a member of the federal judiciary and potentially of our nation’s highest court, Judge Jackson’s interpretation of the law and her writings will set a framework for future jurists. Her insistent rejection of dehumanizing anti-immigrant terms has major ripple effects beyond the letter of the law. After all, it’s the presence of these terms in our laws that are often cited in other spaces to justify their continued use.

Senators who are truly interested in fulfilling their constitutional duty to vet the Supreme Court nominee’s qualifications should take note. Confirming a justice who understands the power of naming and has consistently recognized the humanity and dignity of all people is not only a welcome addition to the Court, it’s monumental for the advancement of immigrant justice and human rights.

Lisa Graybill is NILC’s Legal Director.

Why is the Government Defending Racist Laws? (The Torch)

Why is the Government Defending Racist Laws?

MARCH 23, 2022

Initially, the Biden administration took some positive pro-immigrant first steps, such as ordering a review of federal immigration policy to develop “welcoming” policies, directing federal agencies to cease using dehumanizing terms, and rescinding the discriminatory Muslim and African Bans. While the administration has made important progress, it has also taken a number of steps backward. Unbeknownst to many, the Muslim and African Bans, for example, continue to harm tens of thousands of people as the Department of Justice continues to defend their lasting impacts.

A particularly disheartening contradiction is currently taking place in courtrooms across America. Even as the government’s lawyers refrain from using offensive language, they continue to pursue numerous prosecutions against immigrants by relying upon a criminal law with undeniably racist origins and impact.

Modern immigration law has its roots deeply intertwined with openly racist sentiments.  Notoriously, the Chinese Exclusion Act – an infamous law brought about by white nativists in the late 1800s – was one of the first immigration restrictions the United States enacted. While some prior racist policies have ended, today’s immigration law remains rife with racially targeted restrictions and punishments.

One of the most striking examples of that residual racism is the statute criminalizing returning to the U.S. after being removed. Under that statute, a person may be sentenced to federal prison for as many as 20 years for the mere act of returning to the U.S. When enacted in the 1920s, that statute was explicitly intended to advance white supremacist eugenics goals. A century later, those original racist intentions continue to align exactly with how the statute is still used today—with Latinx people making up 99 percent of those convicted today.

The Unconstitutionality of the Illegal Reentry Statute

The Fifth Amendment to the Constitution guarantees all the equal protection of federal law, and courts will hold unconstitutional those federal laws that passed with discriminatory intent. Laws that begin with a discriminatory intent remain unconstitutional if reenacted without Congress addressing the prior discrimination. Congress has never acknowledged the racist basis of the illegal reentry law, let alone sought to definitively undo it. Simultaneously, the statute has become one of the leading drivers of federal prosecutions and incarcerations, punishing hundreds of thousands of immigrants over decades.

Federal public defenders across the country have sought to protect their clients from the racist reentry statute. Specifically, they have presented trial courts with evidence of the statute’s racist intentions and the dramatically disproportionate conviction rates for Latinx people.

At last, on August 25, 2021, a federal district court agreed. In United States v. Carrillo-Lopez, Judge Miranda Du of the District of Nevada issued a powerful ruling, in which she articulated the unconstitutional origins and impacts of the reentry statutes in great detail, and dismissed a prosecution as a result.

Judge Du explained how the statute was originally grounded in racism and agreed that that intent continued when Congress reenacted the law in 1952. Judge Du noted extensive evidence that confirmed this offensive intent and explained that the statute presently continues to harm the same targeted populations.

The Government Continues to Defend the Racist Reentry Statutes

Following Judge Du’s ruling, the next step for an administration committed to equal justice should have been quite simple: do nothing. Judge Du’s convincing opinion provided every reason for the government to abandon using these racially motivated and applied statutes.

They chose not to.

Photo by Colin Lloyd on Unsplash

Shortly after Judge Du’s ruling, the Biden administration appealed the case to the U.S. Court of Appeals for the Ninth Circuit. Simultaneously, the Biden administration continues to defend another Ninth Circuit appeal where the judge ruled in the opposite direction. The stakes of this escalation are dramatic: a ruling contrary to Judge Du’s could close the door to future challenges to a law plainly rooted in white supremacist ideology in the nation’s largest circuit.

While the government’s decision to continue this fight is itself problematic for racial justice, the specifics of the government’s arguments are even worse.

First, the government has argued that the courts should be lenient in determining whether the statute really was racist, applying “rational basis review.”  The government takes the stance that it does not matter that the statute was passed with openly racist intent because the racist language itself wasn’t included in the law’s actual text.

Second, the government has argued that the “plenary power” doctrine justifies its actions. The plenary power doctrine provides that courts have few, if any, powers to assess federal immigration laws. The doctrine’s origins are as disturbing as the origin of the reentry statute. The Supreme Court first deployed the doctrine in 1889 to uphold a law that expanded a prior ban on Chinese nationals immigrating to the U.S., using openly racist language casting Chinese nationals as “invaders” and a “danger to the country.”

Taking a look at the government’s sole supporter in the Ninth Circuit case reveals further shamefulness of its actions. Only an anti-immigrant hate group has filed a brief in support of the government’s position.

The Movement Responds

In contrast, a broad coalition of movement organizations has joined in the fight to uphold Judge Du’s correct determination that the reentry statutes are unconstitutional. On March 21, dozens of organizations filed briefs in the Ninth Circuit providing further details on the racist origins and impacts of the laws.

The National Immigration Law Center (NILC) is proud to have been among those organizations. In a brief drafted along with LatinoJustice PRLDEF, and which four other nonprofit organizations signed, NILC provided additional detail about the harms the reentry statutes inflict upon Latinx people and their communities.

Data discussed in NILC’s brief indicate that the reentry statute represents one of the offenses most likely to result in incarceration. Once incarcerated, non-citizens experience harsher jail sentences because they are ineligible for lower security facilities and numerous rehabilitative and educational programs. They are also nearly certain to be removed from the country. Moreover, the dramatic incarceration rate combines with involving local and federal law enforcement in immigration enforcement to further racial profiling of communities of color.

While NILC and its allies proudly stand together in this fight, we are dismayed that this fight is even necessary. If the Biden administration is committed to a just and humane immigration system and correcting the system’s past racist harms, it needs to stop defending this law.

Max Wolson is a NILC Staff Attorney.

We Need for Congress to Pass the LIFT the BAR Act (The Torch)

We Need for Congress to Pass the LIFT the BAR Act

THE TORCH: CONTENTSBy Katherine Lundie

In the coming months, Congress will have the opportunity to rectify a decades-old injustice and take a big step toward achieving racial equity by passing the LIFT the BAR Act (full name: Lifting Immigrant Families through Benefits Access Restoration Act of 2021).

Twenty-five years ago, Congress radically transformed U.S. immigration and public assistance laws for the worse. Swayed by racist stereotyping of immigrants and low-income communities, Republicans and a majority of Democrats in Congress passed a “welfare reform” law called the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA). PRWORA replaced the former safety-net program that served families with children and imposed new restrictions on program eligibility. The law also imposed severe restrictions on immigrants’ eligibility for public benefits, including a five-year ban on receiving major federal benefits for most “qualified“ immigrants.

Thanks to decades of leadership by immigrants and allies, states and localities have stepped in to address the well-being of low-income immigrants — but much more needs to be done. Our communities are healthier and stronger when all of us have access to services that meet our basic needs, and immigrants are essential in our collective efforts to fight and recover from the  COVID-19 pandemic.

That’s why we need Congress to pass the LIFT the BAR Act.

Photo by CDC on Unsplash

The legacy of the 1996 welfare law and Trump administration policies

Together with punitive changes to immigration law that also were enacted in 1996, PRWORA engendered confusion and fear among immigrants and their U.S. citizen family members. Participation in public benefits programs dropped dramatically after PRWORA was enacted, causing serious hardship for many low-income families who were ineligible for public programs because of their immigration status. PRWORA did more to create overall dysfunction in benefits access than to alleviate poverty. Decades later, the Trump administration invoked this law in defending its revision of rules regarding “public charge,” which threatened the health and well-being of low-income immigrants and their family members and undermined their ability to succeed.

The Trump administration spared no effort to chip away at immigrants’ access to health and economic supports. When crafting federal policy, it borrowed heavily from the racist, xenophobic, and classist tropes from the 1990s to promote fear-based policies like its 2019 public charge rule. Even though the rule is no longer in effect, many immigrant families still hesitate to enroll in critical health care, job-training, nutrition, and cash assistance programs due in part to fear and confusion created by the rule. Between 2018 and 2019, participation in the Supplemental Nutrition Assistance Program (SNAP) dropped by 22.5 percent — that is, by more than 718,000 children — among U.S. citizen children in households that include a non–U.S. citizen. Studies also show that the Trump administration’s public charge rule likely caused 2.1 million essential workers and household members to forgo Medicaid.

It’s time to remedy past mistakes and restore and expand access to essential services

The LIFT the BAR Act takes critical steps toward advancing equity in access to federal assistance at a time when many communities desperately need it. The COVID-19 pandemic has affected almost every facet of American life, and the immigrant community has been disproportionately harmed by the virus’s health and economic impacts. The bill would eliminate the five-year bar and other restrictions on immigrants’ access to federal means-tested benefit programs — such as Medicaid, SNAP, Temporary Assistance for Needy Families (TANF), and Supplemental Security Income (SSI).

The bill would restore access to these and other federal public benefit programs for all lawfully present immigrants, including people with Deferred Action for Childhood Arrivals (DACA) or temporary protected status (TPS), and people with other statuses that exclude them from eligibility. It removes barriers to enrollment related to immigrants’ sponsors. And it offers states and localities more flexibility to use their own funds to provide benefits to otherwise ineligible immigrants. More information is available in this NILC factsheet, and the Protecting Immigrant Families Campaign has created a resource page about the bill.

If passed, the bill will be a welcome source of relief for state policymakers who already have demonstrated their commitment to support their immigrant residents. Since 1996, many state governments have used their limited budgets to make programs more inclusive — in many cases regardless of their residents’ immigration status. Illinois became the first state in the nation to provide public health coverage to all low-income immigrant seniors over the age of 65, regardless of their immigration status. California passed a law that will extend health coverage to low-income adults, ages 50  and over. In Virginia, legislators removed the 10-year work requirement, also known as the “40 quarter rule,” that severely restricted immigrant residents’ eligibility for Medicaid. While the LIFT the BAR Act would restore access to federal benefits for lawfully present immigrants, it also would allow states and localities to shift resources to offer essential care to their community members regardless of their immigration status.

The nation’s public health and economic recovery depends on ensuring that all members of our communities have access to health coverage and assistance. The legacy of PRWORA and the Trump administration’s animus toward immigrants exposed the flaws in public assistance programs and weakened the country’s ability to respond to the largest public health crisis in over a century. Congress now has an opportunity to address some of our country’s entrenched racial, wealth, and health disparities and to forge a path to economic security and improved health outcomes. Our country should be one in which everyone has access to the support they need to thrive. It’s time to pass the LIFT the BAR Act.

Katherine Lundie is a NILC state and local policy analyst.

Emergency COVID Grants Are Now Available to Immigrant Students (The Torch)

Emergency COVID Grants Are Now Available to Immigrant Students

MAY 27, 2021

The U.S. Department of Education (ED) recently finalized new federal regulations and accompanying frequently-asked-questions (FAQ) guidance that remove the Trump administration’s unfair and unlawful restrictions denying undocumented and other immigrant students access to COVID-19–related emergency financial assistance grants under the Higher Education Emergency Relief Fund (HEERF). Under the new rule, previously excluded students are now eligible for these emergency grants, which are provided to help students remain in school and cover unexpected “cost of attendance” expenses and other related costs imposed by the pandemic.

Photo by heylagostechie on Unsplash

Whom do the new rules impact? Under the new rule and FAQ, undocumented students, people with Deferred Action for Childhood Arrivals (DACA) or temporary protected status (TPS), international students, and other immigrant students who were previously excluded from eligibility now may receive the emergency grants. This change does not affect the eligibility of those who previously qualified (such as lawful permanent residents, refugees, or asylees).

Specifically, the ED has redefined which students qualify for HEERF emergency grants under the regulations (34 C.F.R. sec. 677.3) as any individual who is or was enrolled at an eligible institution on or after March 13, 2020, the day President Trump declared that COVID-19 is a national emergency. In short, the only requirement to receive the HEERF grants is enrollment, as of or after March 13, 2020, at a qualifying institution of higher education as defined under 34 C.F.R. secs. 600.2 and 677.3 — i.e., colleges, universities, proprietary higher education institutions, and postsecondary vocational institutions.

What, exactly, are HEERF emergency grants? In March 2020, Congress created HEERF through the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) to help both educational institutions and students “prevent, prepare for, and respond to coronavirus.” The subsequent Coronavirus Response and Relief Supplemental Appropriations Act of 2021 (CRRSAA) and the American Rescue Plan Act of 2021 (ARP) allocated additional funding for HEERF.

Despite Congress’s clear intent to provide broad emergency relief to students, the Trump administration’s Department of Education, under Secretary Betsy DeVos, published regulations and corresponding agency guidance that improperly excluded many immigrant students from receiving the HEERF emergency grants. In all four court cases that swiftly challenged the regulations and guidance, the courts agreed that DeVos had unlawfully superimposed immigration status requirements onto the HEERF program.

The ED’s new rule and FAQ guidance restore the emergency financial relief that Congress originally intended to provide to students experiencing hardship and other impacts during the global COVID-19 pandemic.

How are the HEERF emergency grants distributed? Under the various pandemic-related legislative packages, Congress authorized the ED to distribute HEERF funds to higher education institutions, which in turn provide the emergency grants directly to students. Institutions must ensure that they prioritize students who have exceptional need and must not distribute the grants in a way that discriminates on the basis of race, color, national origin, disability, or sex (FAQ question 10).

How can HEERF emergency grants be used? Students may use the grants to cover unexpected “cost of attendance” expenses or other emergency costs resulting from the pandemic, such as food, housing, technology, course materials, tuition, health care (including mental health care), or child care (FAQ question 13). Institutions may not direct or further limit what students use their grants for; compel students to use their grants to satisfy existing fees, debts, or balances; nor impose any conditions to receive the grants (such as any academic or other performance criteria or “good standing” requirements) (FAQ questions 12 and 14).

What are other considerations to keep in mind? First, HEERF emergency grants are not taxable income (FAQ question 15). As explained by the Internal Revenue Service, HEERF emergency grants, like other emergency educational assistance measures, are not included in a student’s gross income and, therefore, are not taxable. Also, HEERF emergency grants are not financial aid (FAQ question 17). To receive the grants, students do not have to complete a Free Application for Federal Student Aid (FAFSA) or be eligible for “federal financial aid” under Title IV. As stated above, the only requirement to receive the HEERF grants is enrollment at a qualifying institution as of or after March 13, 2020. Consequently, institutions may not incorporate the HEERF emergency grant into a student’s overall financial aid award package (FAQ question 17).

Finally, receipt of a HEERF grant is not considered in determining whether a person is likely to become a “public charge.” Under the 1999 Field Guidance for immigration officials and relevant Foreign Affairs Manual instructions (for U.S. State Department officials), neither emergency disaster relief nor educational assistance is considered in a public charge determination.

What comes next? If you are a student newly eligible for a HEERF grant, be on the lookout for more information from your school on disbursement and other next steps. As mentioned above, educational institutions are tasked with dispensing the HEERF grants directly to students, and, therefore, this process and the timeline for disbursement will look different at every school. If your school or college/university system has an immigrant student support “Dream” center or equivalent, check with it to obtain more guidance. For example, the University of California system has a list of resources and contacts, as does the California State University system.

Questions? Feedback? Email us at [email protected].

Sarah Kim Pak is a NILC staff attorney.

Answers to Common Questions about Immigrants’ Access to the COVID-19 Vaccines (The Torch)

Answers to Common Questions about Immigrants’ Access to the COVID-19 Vaccines

THE TORCH: CONTENTSBy Katherine Lundie and Ben D’Avanzo
Updated November 19, 2021 

This article provides answers to common questions regarding immigrant access to COVID-19 vaccines. It addresses information related to documentation requirements, data privacy, eligibility, cost, protected spaces, and rights to translation and interpretation services.  

Does a person’s immigration status affect their access to vaccinations? 

No — The Centers for Disease Control and Prevention (CDC) has stated that vaccines are available to anyone, including undocumented immigrants, without regard to their immigration status. Currently, everyone 5 years of age or older is eligible to receive a COVID-19 vaccination.  Parental consent may be required for children and teens. Adults who have been fully vaccinated with a Pfizer, Moderna, or Johnson & Johnson vaccine may be eligible for a booster shot (state rules vary). 

Are vaccinations free?

Yes — Getting vaccinated for COVID-19 should not cost anything. Individuals may be asked for their insurance information, and any health insurance they may be billed for the cost of vaccination, but charges like cost-sharing and deductibles are prohibited. Medicaid will pay for vaccinations for anyone enrolled in Medicaid, including people who have restricted-scope Medicaid (for example, for emergencies or pregnancy).  

For people who are uninsured or underinsured, health care providers can bill the federal government through the Health Resources and Services Administration’s Provider Relief Fund or the Coverage Assistance Fund. These funds reimburse providers for vaccinating anyone who doesn’t have insurance that covers the vaccine, regardless of their immigration status.  Providers may ask patients for their Social Security numbers (SSN) or government-issued identification because these items help with the reimbursement process, but they are not required, and people can get vaccinated without them. 

Will getting vaccinated affect an individual’s immigration status or immigration applications? 

No — Getting vaccinated for COVID-19 will not have a negative effect on a person’s current or future immigration status or ability to become a U.S. citizen.  Immigrants who are applying to become lawful permanent residents, or otherwise subject to a mandatory medical examination for immigration purposesare required to be fully vaccinated against COVID-19 with a vaccine approved by the World Health Organization unless USCIS grants them a waiver.  

Can vaccine providers ask for an ID cardSocial Security Number or other form of identification?  

Documentation requirements may vary by vaccine provider. While the CDC has stated that proof of state residency or other state residency documentation should no longer be required to receive COVID-19 vaccine, providers may ask for government-issued identification to verify a person’s identity. Some providers allow patients to attest to their own identities. 

Although providers may ask people for an SSN or ID, no one is required to provide them to get vaccinated for COVID-19. Providers should inform patients that submitting this information is optional. If a provider insists on receiving documentation that a patient cannot or does not wish to provide, the person can go to another provider, such as a community health center or clinic. 

If individuals suspect federal health policies are being violated, they can report them to the U.S. Department of Health and Human Services (HHS) Office of the Inspector General. 

Will personal information be shared with immigration authorities or law enforcement? 

No —  There is a contract called a data use and sharing agreement (DUA) between the CDC and jurisdictions administering COVID-19 vaccinations. This contract requires that data collected from individuals may only be used in furtherance of the COVID-19 public health response. Information about individual vaccine recipients may not be used against individuals for any civil or criminal prosecution or immigration enforcement. 

Will immigration officials conduct enforcement activity at vaccination sites or health centers?  

No — The U.S. Department of Homeland Security has issued new guidance confirming that it will avoid conducting immigration enforcement activities in protected areas that include COVID-19 testing and vaccine sites. The government wants everyone, including people who are undocumented, to get vaccinated and does not want to limit individuals’ access to medical services. Medical facilities where enforcement generally may not be conducted include COVID-19 vaccination sites, testing sites, mental health care facilities, and facilities that provide pregnancy-related services.  

If someone speaks limited English, dthey have a right to interpretation or translation services when getting a COVID-19 vaccine? 

Yes — Civil rights protections help to ensure that people with limited English proficiency can communicate with federally funded healthcare providers. Federal civil rights law protects people against discrimination on the basis of their national origin, which includes the failure to provide interpreter services or translated materials to people who need them.  Individuals who feel that they have been subjected to discrimination when seeking or using health care services can file a complaint with the HHS Office of Civil Rights. 

Is information about vaccination available in languages other than English?

Yes The following websites provide information about COVID-19 vaccinations in multiple languages. Your state’s public health website may also have additional resources in multiple languages. 

What can advocates to do improve immigrants’ access to COVID-19 vaccinations?

Despite the policies described above, many immigrants face barriers to vaccination.  Advocates can work with their state and local health departments to eliminate burdensome documentation restrictions, increase investments in community-based organizations for outreach, education, and services, and develop higher quality and greater availability of language access services and translated materials. They also can ensure that health departments and vaccine providers understand the existing policies, such as the fact that a person cannot be denied a vaccination because they didn’t provide an SSN or state-issued ID.  

Katherine Lundie is a NILC state and local policy analyst; Ben D’Avanzo is a NILC senior health policy analyst. 

Public Charge: Five Things to Know Now (The Torch)

UPDATE – SEP. 22, 2020
On September 22, U.S. Citizenship and Immigration Services updated its website to state that it would apply the 2019 public charge regulations and related guidance to all applications and petitions postmarked (or submitted electronically) on or after February 24, 2020. It also reposted Form I-944. This announcement follows the Second Circuit’s stay of a U.S. district court injunction that had prevented the regulations from going into effect. Litigation challenging the regulations continues in multiple federal courts.

Public Charge: Five Things to Know Now

THE TORCH: CONTENTSBy Gabrielle Lessard
AUGUST 31, 2020

Recent decisions by federal courts have significantly altered the “public charge” landscape, creating uncertainty about the extent to which the U.S. Department of Homeland Security’s (DHS’s) public charge regulations are in effect, but certain issues and facts remain clear.

Legal challenges to the regulations continue in multiple courts. While those cases proceed, plaintiffs in New York asked a federal court to put the regulations on hold during the COVID-19 pandemic. A U.S. district court there granted that request on July 29, 2020. (The district court also issued a nationwide preliminary injunction blocking the U.S. State Department’s public charge regulations. That injunction remains in effect nationwide and is not tied to the pandemic.)

On August 12, 2020, one Second Circuit judge affirmed but narrowed the district court’s order by indicating that the injunction will apply only within the states in the Second Circuit (New York, Connecticut, and Vermont). The federal government is seeking a complete stay of the district court’s order. The government’s motion for a stay will soon be reviewed by a panel of three Second Circuit judges.[*]


The U.S. Citizenship and Immigration Services (USCIS) website currently refers to the nationwide preliminary injunction issued by the district court in New York on July 29, 2020, which prevents USCIS from “enforcing, applying, implementing, or treating as effective” its public charge regulations. The form that applicants would use to provide the information contemplated by the regulations, Form I-944, “Declaration of Self-Sufficiency,” is no longer available on the website. Given the recent order narrowing the injunction, the website message is puzzling

A spokesperson for USCIS told a reporter that the agency was reviewing the order to “determine the administrative viability of reimplementing” the policy in the 47 remaining states. USCIS’s public charge policy is evolving and may change again. But some things remain certain, whether or not the new regulations are in effect.

1. Many categories of immigrants are exempt from the public charge ground of inadmissibility, including refugees; people granted asylum; survivors of trafficking, domestic violence, or other serious crimes (VAWA, T or U visa applicants/holders); and applicants for temporary protected status (TPS). These exemptions are in the immigration statute and cannot be changed by regulations.

2. Inadmissibility to the U.S. based on public charge is assessed when non–U.S. citizens seek permission to enter the U.S. or to become a lawful permanent resident (LPR), i.e., to get a “green card.” There is no public charge assessment when an LPR applies to become a naturalized U.S. citizen.

3. Once the regulations go into effect, only the specific programs they list as public benefits can be considered in a public charge determination. Many public programs will not be considered, including health services for children and pregnant women, unemployment insurance, and disaster relief.

4. Most people who face a public charge assessment are not eligible for the benefits that may be considered in this assessment.

5. A public charge assessment looks at a balance of positive and negative factors that make a person likely to depend on the government in the future. People can take action to improve their balance of factors by, for example, pursuing education, job training, or employment. Many community colleges and workforce investment boards offer free or low-cost options.

If you have questions about your situation, consult an immigration lawyer. Organizations that provide free or low-cost legal help can be found at

Gabrielle Lessard is a NILC senior policy attorney.

[*] UPDATE (Sep. 15, 2020): On September 11, 2020, the Second Circuit Court of Appeals stayed a lower court’s nationwide injunction of the DHS public charge rule. This means that U.S. Citizenship and Immigration Services is now free to implement the DHS public charge regulations in all jurisdictions. Litigation on the Trump administration’s public charge rules and policies is ongoing in  multiple federal circuits.





Top 5 Things to Know about DACA Now That the Supreme Court Has Ruled (The Torch)

Top 5 Things to Know about DACA Now That the Supreme Court Has Ruled

THE TORCH: CONTENTSBy Luis Leyva-Castillo
JUNE 22, 2020

FIRST, the U.S. Supreme Court issued a decision on June 18, 2020, holding that the Trump administration’s 2017 attempt to terminate Deferred Action for Childhood Arrivals (DACA) was improper.

The Court found that the Trump administration’s 2017 termination of DACA is reviewable and that the administration’s attempt to rescind the program was done improperly and in violation of the Administrative Procedure Act. For now, DACA remains available. For more information about the Court’s decision, see Alert: Supreme Court Overturns Trump Administration’s Termination of DACA.

SECOND, U.S. Citizenship and Immigration Services (USCIS) must continue to accept and process DACA renewal applications.

USCIS will continue to accept DACA renewal applications from anyone who previously has had DACA. Visit and the Informed Immigrant website to learn more about how to apply for your renewal and for guidance on how to fund it. There you’ll also find lists of trusted legal service organizations in your area that can help.

THIRD, USCIS should begin accepting initial (first-time) DACA applications as well as applications for advance parole.

The Supreme Court’s June 18 decision vacates the Trump administration’s termination of DACA and leaves in place the 2012 Department of Homeland Security (DHS) policy memo that first made DACA available. As a result, the Court’s decision requires DHS to again begin accepting first-time DACA applications (applications from people who haven’t applied before) as well as applications for advance parole from people who have DACA and want to travel outside the U.S.

However, we don’t know whether the Trump administration will attempt to act to limit these options. If you meet the guidelines for DACA eligibility but have never had DACA, we recommend you consult with an immigration attorney or an accredited Office of Legal Access Programs (OLAP)–accredited representative as soon as possible before you decide whether to apply. The immigration attorney or accredited representative will be able to give you an individualized assessment of the benefits and risks of applying for DACA and help you gather the necessary materials for the application.

FOURTH, the Trump administration might try again to do away with DACA.

Even though the Court held that the Trump administration’s first attempt to rescind DACA was done improperly, the administration has the power to attempt again to make it unavailable.

FIFTH, this is an important victory, but our fight continues!

Last week, the Supreme Court protected DACA, a form of immigration relief that immigrant youth fought decades for. It’s important to celebrate this victory with our loved ones, but we must continue the fight! We encourage you to visit United We Dream’s website and to join a local or state group working in your community (such as Make the Road New York and RAICES, in Texas) to learn how to get involved and fight for the rights of and protection from deportation for all immigrants, not just those with DACA. You can also help by contributing to United We Dream’s DACA Renewal Fund.

Luis Leyva-Castillo is a rising 2L at the University of New Mexico School of Law, a DACA recipient, and a NILC intern.

Next Senate COVID-19 Bill Must Include 5 Key Immigrant-Inclusive Provisions of House HEROES Act (The Torch)

Next Senate COVID-19 Bill Must Include 5 Key Immigrant-Inclusive Provisions of House HEROES Act

THE TORCH: CONTENTSBy Ignacia Rodriguez Kmec
MAY 28, 2020

When the U.S. Senate returns from recess in early June, your senators will have yet another opportunity to provide crucial relief to people in immigrant communities who, unacceptably, have been left out of the COVID-19 relief bills passed so far. Waiting for them is a $3 trillion measure, the Health and Economic Recovery Omnibus Emergency Solutions (HEROES) Act, that the U.S. House of Representatives passed on May 15, 2020, to provide additional economic relief made necessary by the COVID-19 pandemic.


While the Senate’s Republican leadership has attempted to slow-walk action on further relief legislation, it is crucial that your senators move swiftly to pass the next relief bill — this time one that includes immigrant communities. The top five immigrant-inclusive provisions approved by the House in its HEROES Act that must be part of any new Senate relief package are:

1. Access by uninsured people, regardless of their immigration status, to free COVID-19 testing and treatment, as well as to any eventual vaccine, through Emergency Medicaid. In order to ensure that immigrants and their family members feel safe accessing these vital services, Congress must suspend the “public charge” wealth test for immigrants and suspend civil immigration enforcement activity.

2. Stimulus checks for immigrant taxpayers left out of previous relief bills — including millions of U.S. citizen spouses and children who were excluded from receiving stimulus checks under the CARES Act because the principal tax-return filer (or, if a couple filed jointly, one of the joint filers) filed their taxes with an Individual Taxpayer Identification Number (ITIN) rather than a Social Security number.

3. Automatic extension of work permits and protection from deportation for immigrants, including people with Deferred Action for Childhood Arrivals (DACA) or temporary protected status (TPS). The HEROES Act would also provide protection from deportation and work authorization to people doing critical infrastructure jobs, including agricultural work, meatpacking, and other types of work.

4. Release of some people from immigration detention and basic care for people in detention. The HEROES Act would require U.S. Immigration and Customs Enforcement (ICE) to review the files of anyone detained who is not subject to mandatory detention and prioritize their release or provide alternatives to detention. The bill also provides that free and unlimited access to telephones, soap, sanitizer, and other necessary personal hygiene products be provided to people in immigration detention during the pandemic. We encourage Congress to prioritize releasing more people from civil detention custody because tens of thousands of detained immigrants are still languishing in unsafe and inhumane conditions.

5. No additional funding for the U.S. Department of Homeland Security (DHS) and restrictions on DHS’s ability to transfer funds to pay for counterproductive activity. At a time when it is particularly dangerous, irresponsible, and cruel to continue immigration enforcement and detention efforts, we must ensure that no additional funds be made available to Trump’s deportation force.

The global health crisis we are in has revealed starkly just how interconnected we all are as a society and made it clear that, in order to survive and then recover from the crisis and, as a society we must provide relief and solutions that include and protect everyone, regardless of where we were born or how much money we make. The Senate must move swiftly to pass the next relief bill and must ensure that it includes these key provisions of the HEROES Act.

Ignacia Rodriguez Kmec is NILC’s immigration policy advocate.

Advocates Ask District Court to Block Public Charge Rule Amidst Pandemic Following SCOTUS Rejection

May 18, 2020

– Juan Gastelum, National Immigration Law Center, (213) 375-3149, [email protected]
– Jen Nessel, Center for Constitutional Rights, (212) 614-6449, [email protected]
– Alejandra Lopez, The Legal Aid Society, (917) 294-9348, [email protected]
– Yatziri Tovar, Make the Road New York, (917) 771-2818, [email protected]

Advocates Ask District Court to Block Public Charge Rule Amidst Pandemic Following SCOTUS Rejection

Obstacles to public benefits will exacerbate health and economic crises, attorneys argue

NEW YORK — Today, lawyers from the National Immigration Law Center, the Center for Constitutional Rights, The Legal Aid Society, and Paul, Weiss, Rifkind, Wharton & Garrison LLP joined New York State Attorney General Letitia James arguing (via video) before a federal district court judge regarding three related lawsuits challenging several Trump administration “public charge” rules and seeking a preliminary injunction to stop enforcement during the COVID-19 pandemic.

The rules, which penalize immigrants who access certain public benefits or are deemed at risk of someday needing public benefits, primarily affect low-income immigrants of color. The rules are particularly harmful during the current public health crisis, as they cause families to forgo much-needed health care, food, and housing assistance. Among the issues argued today is an emergency motion to block the rule from remaining in effect during the pandemic.

“The Trump administration’s tests dangerously attack immigrants of color and low-income families who already lack health access and are currently facing food insecurity,” said Javier H. Valdés, co-executive director of Make the Road New York. “As the country faces a public health crisis, allowing these racist wealth tests to continue to be imposed on our immigration system can cause catastrophic harm to our loved ones and neighbors. We urge the court to put a stop to these unlawful and inhumane policy changes.”

Earlier in the pandemic, the U.S. Supreme Court rejected an emergency request, filed by Attorney General James on behalf of three states and New York City and supported by community groups that have sued over the public charge rules, to block one of the rules from taking effect amid the pandemic. Today, the attorney general, joined by the plaintiffs in the Make the Road New York v. Cuccinelli case, urged the district court to halt the Department of Homeland Security public charge rule during the COVID-19 emergency, an avenue left open by the Supreme Court decision. Also argued today were Trump administration motions to dismiss in the Make the Road New York v. Cuccinelli case, as well as the Make the Road New York v. Pompeo case challenging the U.S. Department of State public charge rule, as well as a presidential proclamation that bars entry to immigrants based on their ability to pay for health insurance.

Community groups, including lead plaintiff Make the Road New York, say that all these rules chill immigrants from accessing public benefits, because under the rules doing so threatens their immigration status. The public charge rules redefine and broaden the meaning of a “public charge” from those who are primarily reliant on government aid to include anyone who is likely to use any amount, at any time in the future, of various cash and noncash benefits, including Medicaid, food stamps, and housing subsidies. The presidential proclamation requires immigrants to demonstrate the ability to obtain private health insurance within 30 days of arrival in the U.S. or financial resources to pay for future medical costs, and bars entry to those who cannot. Advocates condemn the rules and proclamation as unlawful and discriminatory wealth tests.

“During this unprecedented pandemic, everyone, regardless of immigration status, needs access to the health care and government benefits for which they are eligible,” said Susan Welber, staff attorney in the Civil Law Reform Unit at The Legal Aid Society. “As long as people are deterred from seeking testing or treatment for COVID-19 and other types of vital benefits like food assistance out of fear of immigration consequences, efforts to slow the spread of the coronavirus are impeded and put immigrants and nonimmigrants alike at risk.”

“The implementation of these arbitrary and discriminatory rules, which target immigrants with medical conditions and low-income immigrants of color, is unconstitutional and undermines community efforts to combat the global pandemic,” said Ghita Schwarz, senior staff attorney at the Center for Constitutional Rights.

“The pandemic has brought to light how all of us are interconnected and essentially dependent upon each other. Yet this discriminatory wealth test is needlessly undermining everyone’s health, safety, and economic security,” said Joanna Cuevas-Ingram, staff attorney at the National Immigration Law Center. “The Trump administration’s relentless effort to put these new public charge regulations and his own ‘health care proclamation’ into effect puts lives at risk, hurting public health, the economy, and us all. The court heard powerful evidence today about why it can and should stop these regulations and the proclamation before they cause even more damage and harm to everyone.”

Make the Road New York v. Cuccinelli was filed by The Legal Aid Society, Center for Constitutional Rights, and Paul, Weiss, Rifkind, Wharton & Garrison LLP on behalf of Make the Road New York (MRNY), African Services Committee (ASC), Asian American Federation, Catholic Charities Community Services (CCCS), and Catholic Legal Immigration Network, Inc. (CLINIC).

Make the Road New York v. Pompeo was filed by The Legal Aid Society, Center for Constitutional Rights, National Immigration Law Center, and Paul, Weiss, Rifkind, Wharton & Garrison LLP on behalf of Make the Road New York (MRNY), African Services Committee (ASC), Central American Refugee Center New York (CARECEN-NY), Catholic Legal Immigration Network, Inc. (CLINIC), Catholic Charities Community Services (CCCS), and individual plaintiffs.


To Ensure Collective Health and Safety, Federal Packages for COVID-19 Relief Must Include Immigrant Communities (The Torch)

To Ensure Collective Health and Safety, Federal Packages for COVID-19 Relief Must Include Immigrant Communities

THE TORCH: CONTENTSBy Holly Straut-Eppsteiner
APRIL 21, 2020

The COVID-19 public health crisis has demonstrated how our health and well-being — everyone’s — are interconnected. Congress has passed relief packages that help many Americans access health care, paid leave, and economic support, but these measures don’t sufficiently address the widespread harm caused by the crisis. Legislation passed to date, including the Coronavirus Aid, Relief, and Economic Security (CARES) Act and the Families First Coronavirus Response Act (FFCRA), has failed to address the needs of millions of our immigrant community members and their families.

Immigrants face many structural barriers to accessing health care, and they are highly represented in jobs that put them at risk during this crisis. The impacts of COVID-19 in low-income immigrant communities — places such as Langley Park, MD, and central Queens, NY — have already been catastrophic. We urgently need legislation that protects the health and well-being of all our communities, including immigrants. Outlined here are key provisions that would make the next phase of COVID-19 relief legislation more inclusive of immigrant communities.

Photo by CDC on Unsplash

Everyone must have access to COVID-19 testing and treatment

During this crisis, uninsured immigrant communities need coverage for COVID-19 testing, treatment, and, when they’re available, vaccines. The uninsured rate has risen in recent years, and immigrants are disproportionately represented in the uninsured population. People who are undocumented are ineligible for most Medicaid coverage and coverage through the Affordable Care Act Marketplace.

The CARES Act falls short on ensuring access to essential treatment for uninsured people who are ineligible for full-scope Medicaid. COVID-19–related coverage must be available under Medicaid for any individual who is uninsured. And Congress must ensure that information about the virus, health care, and benefits are accessible, through interpretation services, to people who don’t speak or read English fluently.

Congress must halt implementation of harmful “public charge” rules

No one should have to fear that getting the health care they need could adversely affect their immigration status, but, unfortunately, that’s already happening. In February 2020, the U.S. Department of Homeland Security (DHS) began implementing its new “public charge” rule that takes into consideration a person’s use of noncash public benefits, such as Medicaid and SNAP (food stamps), in determining their eligibility for lawful permanent resident status. Several courts preliminarily enjoined the rule, but these injunctions were lifted by the U.S. Supreme Court.

DHS’s public charge rule created a widespread chilling effect on immigrants’ accessing programs and services even before the government began implementing it. Now there’s clear evidence that immigrants are fearful of accessing medical treatment for COVID-19 because of public charge, even though U.S. Citizenship and Immigration Services (USCIS) announced that it would not consider the receipt of COVID-19 testing, treatment, or preventative care in public charge assessments.

The next COVID-19 relief package should include provisions to stop the DHS public charge rule’s implementation and also that of a similar rule being implemented by the U.S. State Department, whose consulates abroad issue visas to people seeking to immigrate. Congress should also pass legislation to halt any further action by federal agencies that are intended to make public charge policies more restrictive.

Immigrants must be able to access hospitals and health care facilities without fearing immigration enforcement

Undocumented communities must also be able to access the care and services they need without fear that visiting a health care facility will put them at risk of being separated from their families. The federal government has long designated “sensitive locations,” such as hospitals, schools and churches, as safe spaces that are off-limits to immigration enforcement.

As long as the present public health crisis lasts, DHS should cease all civil immigration enforcement, to help ensure that immigrant communities stay home and focused on remaining healthy or able to access crucial medical services without the added fear of being torn from loved ones. While U.S. Immigration and Customs Enforcement (ICE) has stated that it will not carry out enforcement operations at health care facilities during the COVID-19 crisis, states and localities should remain vigilant to hold ICE accountable. A NILC toolkit titled “Filing Immigration Enforcement Civil Rights Complaints for Violations of the ‘Sensitive Locations’ Policy At or Near Your School” can be used or adapted to help hold ICE accountable.

Immigrant taxpayers should be eligible for economic relief

The CARES Act provides some taxpayers a “recovery rebate” of up to $1,200 for individuals or $2,400 for jointly filing couples, and $500 per dependent child. However, many immigrant families have been left out of this program and subjected to additional financial hardship and also health risks, since many may be forced to continue working in unsafe conditions. Immigrant tax-filers who do not have Social Security numbers (SSNs) can file income taxes with an Individual Taxpayer Identification Number (ITIN). But under the CARES Act, households that include ITIN-filers are generally ineligible for this tax rebate.

Congress should remove the SSN requirement to ensure that all taxpayers have access to the recovery rebate and are able to provide shelter and food for their families.

Immigrant workers need to be able to keep their jobs and to work in safe and healthy conditions

Immigrant workers who continue working in industries designated as essential are encountering conditions that put their health and safety at risk every day, one of the many causes of significant racial and ethnic disparities seen in the impacts of COVID-19. Workers need a federal law, such as the Essential Workers Bill of Rights, that would require the Occupational Safety and Health Administration to issue an emergency temporary standard requiring employers to take minimum steps to protect workers during this crisis. Any safety plan should prioritize prevention of exposure, with an emphasis on increased physical distancing and personal protective equipment at no cost to workers. Workers in essential industries also need universal paid sick leave and paid family and medical leave to allow them to stay home and self-quarantine when necessary.

Congress should do all it can to avert layoffs and keep workers in their jobs — even if that means taking on temporary responsibility for covering employers’ payroll expenses. Workers who have temporary work authorization through Deferred Action for Childhood Arrivals (DACA), temporary protected status (TPS), or nonimmigrant visas need an automatic extension of their status or work authorization for the length of time they most recently held status or were work-authorized in order to ensure that they can keep working when able and qualify for unemployment insurance when they cannot. States and localities should follow California’s lead in setting up funds to help workers who are ineligible for unemployment insurance.

IF WE ARE SERIOUS ABOUT truly stemming the tide of the crushing health and economic consequences of this pandemic, we must include immigrants in our legislative solutions. More detailed information is available in NILC’s “Understanding the Impact of Key Provisions of COVID-19 Relief Bills on Immigrant Communities.”

Holly Straut-Eppsteiner is NILC’s Mellon/ACLS Public Fellow and research program manager.