While Recognizing the Danger the Mexican Cartels Pose to US Citizens, Trump Ignores the Same Danger Posed to Asylum Seekers Forced to Remain in Mexico

A few years ago, my cousin was looking forward to her first trip to Mexico.  I asked if she bought her kidnapping insurance yet. She laughed, but then noticed I was being serious. She looked at me and said “That’s not a thing, is it?”  I told her to look it up.  A few days later, she called me absolutely surprised that kidnapping insurance existed for people taking trips to Mexico.

I don’t mean to impugn all Mexican people.  But we cannot pretend that all areas of Mexico are safe. The sad reality is that criminal organizations known as the cartels dominate the northern areas near the border with the United States.  Their main goal is to profit off of the illicit drug trade with the United States.  But they have their hand in any potentially lucrative criminal enterprise.

As an immigration lawyer, when you listen to your client’s stories of how they braved the cartels, you instantly feel anger, sadness and admiration at the same time.  Anger that such powerful and dangerous forces of evil exist.  Sadness that living with this evil is the reality for people who just want to escape the violence of street gangs in their home country.  And admiration that your clients faced this evil, and survived.

A Central American migrant simply cannot plan to journey north without considering the hold the Mexican cartels have over illegal border crossings.  Typically, a migrant hires a guide, known as a “coyote,” to lead them on their journey.  The coyote supposedly knows the terrain and how best to navigate the many obstacles that exist before reaching the border.  But each coyote is associated with one of the Mexican cartels.  The cartels have the territory just south of the border carved out.  If a coyote strays into territory belonging to a rival cartel, it can mean extortion, and even death to those is his group.

But even traveling through the territory controlled by the cartel associated with their coyote is not necessarily a guarantee of safety.  Coyotes have been known to lead groups of migrants right into the hands of cartel members, armed with automatic weapons, who in turn beat, rape and rob the migrants just when they reached the border.  Female clients of mine have told me that they expect this, and for that reason start taking birth control pills before their journey.  Women who are naive have wound up pregnant as a result of the rape.  Indeed, it has been reported that cartel members hang the underwear of their rape victims on trees, called rape trees, as a sign of their power.

At times, the cartels will kidnap the migrants trying to seek safety in the United States.  They may hold migrants for ransom. They may force females to satisfy their sexual desires, and do the cooking and cleaning for the cartels.  They may sell the migrants into slavery.

President Trump recently recognized the danger present in northern Mexico because of the cartels.  After nine members of a family of US citizens were murdered by the cartels, Trump tweeted an offer of US assistance with cleaning up the cartels to Mexican President Andrés Manuel López Obrador.  

But while Trump recognizes the danger the cartels pose to US citizens (the victims of the cartel violence were related to Mormons who settled in Mexico after the Church of Jesus Christ and Latter Day Saints abandoned the practice of polygamy in 1890, and maintain dual Mexican-American citizenship), he ignores the same danger those cartels pose to Central American migrants he has forced to wait in Mexico while their asylum applications pens in US Immigration Court. 

Last Winter, the Trump Administration began its “Remain in Mexico” program, also known as the Migrant Protection Protocols or MPP.  Not wanting the migrants to stay in the United States while their asylum cases worked their way through court, Trump reached an agreement with the Mexican Government permitting asylum seekers to remain, temporarily in Mexico, only permitted into the United States when there were court hearings in their cases.  But the migrants would live in the very area of Mexico dominated by the cartels.

Already, it has been reported that migrants have been kidnapped by the cartels, as soon as they return to Mexico after a court hearing.  Nonetheless, keenly aware of the danger the cartels pose, the Trump Administration continues to force asylum applicants to face this danger, rather than permit the applicants to be released on bond within the United States.

As has often been argued, it is the cruelty of the Trump Administration towards migrants fleeing violence at home that is the point of the policy.  By demonstrating to potential migrants that the United States will compel them to live in dangerous situations while waiting for a decision on their asylum applications, which can often take years, the Administration hopes to disuade migrants from making the trip north. 

Whether such cruelty works as a deterrent to asylum seekers is questionable at best.  When the cruelty of ripping children away from their parents who crossed the border was the official policy of the Trump Administration, the number of Central Americans seeking the safety of the United States only increased significantly.  So far, in 2019, CBP statistics show a large increase of apprehensions at the border as compared to last year, despite the implementation of the MPP.

By:  William J. Kovatch, Jr.

Temporary Restraining Order Blocks Trump Administration from Implementing Rule Requiring New Immigrants to Have Health Insurance

On November 2, 2019, Judge Michael Simon of the U.S. District Court for the District of Oregon issued a nation-wide temporary restraining order ("TRO"), preventing the Trump Administration from implementing its new policy of requiring aliens applying for visas to become lawful permanent residents to demonstrate that they will be covered by an approved health insurance plan within 30 days of entering the United States.  The Trump Administration was set to implement the policy on November 3, 2019.

A group of plaintiffs filed a lawsuit challenging the policy on October 30, 2019.  The followed up by filing a motion for a TRO on November 1, 2019.  The Court held an emergency hearing on November 2, 2019.  The parties presented oral arguments at the hearing, but did not have time to file written arguments.

The Government had argued that the plaintiffs made their own emergency, by delaying until a few days before the policy was to go in effect to file their complaint and motion.  Judge Simon disagreed, noting that the Presidential Policy announcing the new policy was published on October 4, 2019, and that under the circumstances, filing a complaint twenty-six days after the issuance of the Proclamation was not an unreasonable delay.

Pursuant to the Presidential Proclamation, if an applicant for an immigrant visa could not show that he or she would be able to purchase an approved health insurance policy within 30 days of entering the United States, they would be deemed inadmissible as likely to become a public charge, and barred from entering the United States.

The Court first noted that Congress had addressed the public charge grounds of inadmissibility in the Immigration and Nationality Act ("INA").  Congress provided that a number of factors should be examined to determine whether a person is likely to become a public charge, which include the alien's age, health, family status, assets, resources, and financial status, and education and skills.  No one factor was to be determinative.  The statute did not mention a person's health insurance status as one of those factors.

Moreover, the Proclamation listed a number of health insurance plans that would acceptable.  The Court found that almost all of the listed types of insurance plans would be unavailable to most intending immigrants.  In addition, the Proclamation excluded any health insurance plan purchased through a state's marketplace pursuant to the Affordable Care Act (also known as Obamacare) if the state subsidized the plan.  Thus, the Court noted that the Proclamation excluded the one type of health insurance plan many intending immigrants would be able to afford.  Furthermore, the Court noted that Congress had rejected a proposal to consider the receipt of non-cash benefits from the government in making the public charge consideration.  The Presidential Proclamation, therefore, was inconsistent with the congressional intent as expressed through the INA.

Because this was an extraordinary measure being taken by the Court at such an early stage in the lawsuit, Judge Simon limited the TRO to 28 days, unless extended by the Court.  The Court further scheduled another hearing on November 22, 2019.

By:  William J. Kovatch, Jr.

Immigration Court Decision Concerning the Return to Mexico Program Raises More Questions than it Answers

On September 17, 2019, an Immigration Judge in San Diego, California, terminated removal proceedings for a family of aliens whom the U.S. Government had made subject to the Migrant Protection Protocol ("MPP"), colloquially known as the Remain in Mexico program.  The Judge held that the Government had no authority to apply the MPP to aliens apprehended in the territory of the United States, as opposed to aliens classified as "arriving aliens."  The Judge concluded that the only remedy available to the respondents in this situation was termination of the removal proceedings.

The decision, however, raises more questions than it answers.

The Government established the MPP during the 2018-19 winter to address the increase of Central American migrants traveling to the United States to seek asylum.  Prior to the MPP, the Obama Administration implemented the Catch and Release program, where certain migrants apprehended by the Government were released on bond into the United States pending removal proceedings.  In most cases, these were migrants who claimed a fear of persecution if they were returned to their home country, and who passed a credible fear interview. 

President Trump, who greatly opposed to the Obama Administration's Catch and Release program, sought to implement the MPP to prevent the Central American migrants from remaining in the territory of the United States pending removal proceedings.  Mexico had agreed to permit certain migrants to remain in Mexican territory during the pendency of their removal proceedings in the United States.

Pursuant to the MPP, if a migrant who lacked proper visa documentation or attempted to gain entry based on fraud claimed fear of persecution, immigration officials would follow the procedures set forth in section 235(b) of the Immigration and Nationality Act ("INA"), and refer the migrant to an asylum officer for a credible fear interview.  If the migrant passed the credible fear interview, U.S. Immigration and Customs Enforcement ("ICE") would issue a Notice to Appear and commence removal proceedings, where the migrant could apply for asylum before an Immigration Judge.  Once in removal proceedings, ICE returned the migrant to Mexico, where the migrant would wait for his or her next Immigration Court hearing.

The Government's authority to implement the MPP stemmed from section 235(b)(2)(C) of the INA.  That section of the statute provided that if an alien arrived on land from a foreign country contiguous to the United States, that alien could be returned to the contiguous country pending removal proceedings.  This provision of the INA, however, is subject to the exception of aliens who are eligible for expedited removal.

Through expedited removal, immigration authorities may remove an alien who either lacks proper documentation, or has attempted to enter through fraud, without subjecting that alien to formal removal proceedings before an Immigration Court.  Expedited removal applies to aliens apprehended at a port of entry or at the border, or who are apprehended within 100 miles of the border and cannot prove that they entered more than 14 days prior to the apprehension. 

Currently, the MPP is subject to litigation in federal court.  Opponents of the program argue that the Government cannot apply the MPP to aliens who are eligible for expedited removal because of the statutory exception.  The Government replies that it has discretion on whether to apply expedited removal.  If the Government chooses not to apply expedited removal, despite the alien's eligibility, and instead places the alien in full removal proceedings before an Immigration Court, then the MPP may apply to that alien.

The decision of the Immigration Judge in San Diego does not address the federal litigation over the MPP.  Indeed, Immigration Courts lack the authority to address such litigation.  Immigration Courts are not part of the Judiciary Branch of Government.  They are instead more akin to administrative courts, and are part of the Executive Branch.  As such, Immigration Courts only have the authority as set forth in the INA, which is to adjudicate whether the specific alien before it is removable from the United States.

The Immigration Judge did address a different issue raised by the MPP.  Namely, whether the MPP can be applied to aliens who do not meet the definition of an arriving alien.  An arriving alien is specifically defined as an alien who presents himself or herself for inspection at a port of entry, or who is apprehended on the border.  The Immigration Judge noted that 90% of the aliens who were being placed in the MPP and sent back to Mexico awaiting removal proceedings were aliens apprehended in the territory of the United States.  That is, aliens who crossed the border and were found by immigration authorities inside U.S. territory.  This is a separate category of aliens.  The Judge emphasized this point, noting that arriving aliens possess fewer rights than aliens apprehended within the United States.  Because section 235(b)(2)(C) expressly applied to arriving aliens, the Judge held that the Government violated the law by applying the MPP to aliens apprehended within the United States.

However, the Immigration Judge noted that it was a court of limited authority.  The court had no authority to order the Government to bring the aliens wrongfully placed in the MPP back into the United States from Mexico.  The only authority it had was to terminate the removal proceedings, without prejudice.  This means that the Government could refile the Notice to Appear and being new removal proceedings.  But the court could not order that the Government do so.

Although the decision is significant in that it finds that the U.S. Government is applying the MPP in an illegal manner, the outcome raises more questions than it answers.  It does not answer the question of whether the aliens wrongfully placed in the MPP will eventually return to the United States.  Indeed, arguably the Government could just ignore the aliens who are already in Mexico, and refuse to restart removal proceedings.  Under such circumstances, the aliens may need to begin more litigation, such as a habeas corpus proceeding, or sue the Government for a breach of constitutional rights.  The ultimate success of such litigation remains in doubt.

Moreover, the Government can appeal the Immigration Judge's decision to the Board of Immigration Appeals.  The future of the particular migrants subject to this decision, as well as others similarly situated, remains clouded.

By: William J. Kovatch, Jr.

Are Expedited Removal Orders Reviewable by the Courts?

On Friday, October 18, 2019, the U.S. Supreme Court agreed to hear an appeal to determine whether expedited removal orders are ever reviewable by federal courts.  The case is Thuraissigiam v. U.S. Department of Homeland Security, No 18-55313 (March 17, 2019). 

Decided by the Ninth Circuit Court of Appeals, the case involves a citizen of Sri Lanka who was apprehended in the United States 25 yards from the U.S.-Mexican border.  Undocumented, Thuraissigiam was issued an expedited removal order.  However, he claimed a fear of persecution if returned to his home country.  Accordingly, an asylum officer conducted a credible fear interview, to see if he had a basis to file an asylum application.  The asylum officer found no credible fear.  This was affirmed by a supervisor, and then an Immigration Judge.  Thuraissigiam filed for a habeas corpus review in the U.S. District Court, which was denied on jurisdictional grounds.  The U.S. Court of Appeals heard the case, and found that the law creating expedited removal was unconstitutional, because it violated the Suspension Clause of the U.S. Constitution.

There is a lot there to unpack.  Starting with expedited removal, Congress passed a statute providing that any alien who arrives at a port of entry without proper documentation, or with documentation based on fraud, could be order removed from the United States in an expedited fashion without resorting to the Immigration Courts.  This expedited removal can apply to any alien who is apprehended within 100 miles of the border, who cannot prove that he or she has been in the United States for greater than two weeks.  An officer from Customs and Border Protection (CBP) or U.S. Immigration and Customs Enforcement (ICE) may issue the expedited removal order, and summarily remove the alien from the United States, without permitting the alien a hearing before an Immigration Judge.  The law provides that an order of expedited removal is not directly reviewable by any federal court.  Moreover, habeas corpus review is limited by statute to three situations:  (1) where the alien claims he or she is a citizen; (2) whether an expedited removal order was in fact issued covering the alien (that is, only whether the order was issued may be reviewed, and not the substance of the order itself); and (3) whether the alien is a permanent resident or possesses some other legal status that exempts him or her from expedited removal.

When the Government issues an expedited removal order, the alien may still avoid removal if he or she claims that he or she fears persecution if returned to his or her home country.  Under these circumstances, the Government is legally obligated to conduct a credible fear interview.  An asylum officer conducts an interview with the alien to determine whether he or she has a credible basis to file an asylum petition.  If the asylum officer finds that the alien has a credible fear, the alien is then placed in regular removal proceedings, where he or she will have an opportunity to file an asylum application and have it adjudicated before an Immigration Judge.  If the asylum officer finds no credible fear, then the decision is reviewed by a supervisor.  If a supervisor affirms the decision, the alien may have the credible fear determination reviewed by an Immigration Judge.  That review must take place as soon as possible, and efforts must be taken to try to adjudicate whether the alien has a credible fear within twenty-four hours of the asylum officer's decision.  If the Immigration Judge finds a credible fear, the alien is placed in removal proceedings for full adjudication.  If the Immigration Judge finds no credible fear, then the expedited removal order stands, and the alien is removed from the United States.  There is no direct appeal from the Immigration Judge in this situation, and a habeas corpus review, as discussed earlier, is only available in limited circumstances. 

Returning to the case at hand, Thuraissigiam filed for a habeas corpus review after the Immigration Judge found that there was no credible fear.  A habeas corpus review is one where a person challenges the legality of a physical detention by the Government.  It is a type of review that is available in addition to the direct review of a judgment.  Habeas corpus proceedings most often come into play after a criminal conviction, and usually involve a claim that something was wrong with the procedure leading to the conviction.  Although immigration detentions occur pursuant to civil law, and not criminal law, they can also be subject to a habeas corpus review.

The U.S. District Court originally held that it lacked jurisdiction to hear the habeas corpus challenge, because the statute specifically limited such review to three situations, none of which applied to Thuraissigiam.  On appeal before the Ninth Circuit, the Court of Appeals agreed with the District Court that the statute did not permit Thuraissigiam a basis for a habeas corpus review.  However, the court did not stop its analysis there.  Rather, the court went on to determine whether the expedited removal statute provided sufficient judicial relief to pass constitutional muster.

Specifically, Article I, Section 9, Clause 2 of the U.S. Constitution provides, "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."  This is called the Suspension Clause.  To address whether the statute violated the Suspension in this case, the Ninth Circuit engaged in a two step analysis.  In step one, the court analyzed whether Thuraissigiam was entitled to a habeas corpus review.  In this regard, the court noted that he was apprehended on U.S. soil, thus the constitutional guarantee of a habeas corpus review applied.

In the next step, the court analyzed whether the statute provided sufficient relief to satisfy the requirements of a habeas corpus review.  In this regard, the court noted that the statute did not provide for a review of whether proper procedures were followed in issuing the expedited removal order, or in making the credible fear determination.  Because this type of review was foreclosed by the statute, the Ninth Circuit concluded that the statute violated the Constitution.

This is now the issue that will be argued before the U.S. Supreme Court.

Congress has gone to great lengths in its attempt to preclude those subject to expedited removal from challenging the removal order in federal court.  The expedited removal process has been met with criticism that it deprives people of constitutional rights, such as Due Process.  The Ninth Circuit decision had opened the door to permit a greater degree of judicial review of some expedited removal cases.  The question now is whether the door will remain open, or whether the Supreme Court will shut that door, again foreclosing habeas corpus relief to those subject to expedited removal.

By:  William J. Kovatch, Jr.

US District Court Enjoins Trump Administration from Enforcing New Public Charge Definition

On Friday, Judge George B. Daniels of the U.S. District Court for the Southern District of New York issued a temporary injunction preventing the Trump Administration from enforcing, at a national level, the new definition of "likely to become a public charge" adopted by U.S. Citizenship and Immigration Services ("USCIS").  USCIS, the arm of the Department of Homeland Security that administers visa applications, published a regulation concerning the public charge grounds of inadmissibility on August 14, 2019 in the Federal Register, which was to become effective on October 15, 2019.  Through this regulation, USCIS redefined how it would weigh whether a potential immigrant would be likely to become a public charge.

The principle that an alien who is likely to become a public charge is not admissible to the United States as an immigrant has been a part of U.S. law since at least 1882.  Currently, public charge is defined as "primarily dependent on government for subsistence, as demonstrated by either (i) the receipt of public cash assistance for income maintenance or (ii) institutionalization for long-term care at government expense."  Congress, through the Immigration and Nationality Act ("INA"), provides that the Government should consider "at a minimum" several factors to determine if an alien is likely to become a public charge:  (1) age, (2) health, (3) family status, (4) assets, resources, and financial status, and (5) education and skills.

In practice, the public charge grounds of inadmissibility is addressed in every immigrant visa petition a U.S. citizen files on behalf of an alien relative through an "affidavit of support."  The affidavit of support is a sworn statement showing the U.S. petitioner's income and, if necessary, assets, in order to demonstrate that the alien relative will not become dependent on U.S. means-tested social programs.  It is also a contract between the petitioner and the U.S. Government, that if the sponsored alien relative ever required means-tested assistance from the U.S. Government, that the petitioner will reimburse the Government for the expense of that assistance.

To be able to sponsor an alien relative, the petitioner needs to show that he or she earns a level of income that is greater than 125% of the official poverty level for the petitioner's family size plus the alien.  That means, if a petitioner is married and has two children, that petitioner must show that his or her income is greater than 125% of the official poverty level for a family of five.  If the petitioner cannot meet that requirement, then there must be a co-sponsor who can meet the 125% of poverty level requirement on his or her own.

In the vast majority of visa petitions, this has been a sufficient way to show that the alien who intends to immigrate to the United States is not likely to become a public charge.  However, there are some cases which would require more evidence.  If an alien had a serious health problem, for example, it would be prudent for a petitioner to be prepared to show that the alien's healthcare would be covered either by insurance or some other set of funds, and therefore not require governmental programs to treat.

Through the new regulation, USCIS would change the definition of "public charge," to permit the Government to consider the receipt of a number of public benefits which would otherwise be foreclosed by the current definition.  Specifically, the current definition concerns the receipt of "public cash assistance for income maintenance."  USCIS decried that definition excludes the consideration of the receipt of non-cash public benefits in determining whether an alien is likely to become a public charge.  These non-cash benefits include "the Supplemental Nutrition Assistance Program (SNAP), or food stamps; Medicaid; and housing vouchers and other housing subsidies."  Accordingly, USICS changing its interpretation of "public charge" to mean "an alien who receives one or more designated public benefits for than 12 months in the aggregate within any 36-month period."  "In the aggregate" meant that if an alien received two benefits within the same month, that would count as two months.

In the case of New York, et al. v. U.S. Department of Homeland Security, Judge Daniels analyzed the new definition through the framework of the Administrative Procedures Act and the case of Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).  Essentially, Congress has the ability to pass legislation over a broad topic, granting the Executive Branch discretion in how to enforce the law.  At times, Congress may leave a term vague, ambiguous or undefined, choosing instead to adopt a broad rule, allowing the Executive Branch to "fill in the blanks."  However, the Executive Branch does not possess unfettered discretion in defining vague, ambiguous or undefined terms in the legislation.  The Executive Branch cannot adopt an interpretation that is contrary to the language used by Congress, nor can it be contrary to congressional intent.  Once a definition is adopted, the Executive Branch may change the definition.  However, the Executive Branch must supply a reasonable explanation for that change in definition.

Judge Daniels noted that the current definition of public charge has existed for a long period of time, and that Congress has never expressed displeasure with that definition, despite changes to U.S. immigration law.  Indeed, Congress had specifically rejected attempts to change the definition of public charge to include the receipt of non-cash public benefits. Moreover, Judge Daniels found that USCIS failed to provide a reasoned explanation for the change in definition.  The new definition, said the Judge, would change the analysis from one of whether an alien was self-sufficient to a strict benefits issue. Specifically, the Judge found that the Government failed to offer a rational for the standards of 12 months and 36 months in the new definition.  Accordingly, the Judge issued a temporary injunction preventing the enforcement of the new rule nationally, pending the outcome of full litigation.

Critics of the new public charge definition has argued that the enforcement of the rule would lead to a drastic reduction in legal immigration.  Specifically, the new rule would mostly impact visa petitions based on family relationships.  Trump has often called for the reduction of so-called "chain migration," where an immigrant brings family members to join him or her in the United States.  The term "chain migration" is, of course, pejorative.  Moreover, Trump's criticism fails to acknowledge the limited categories of family members for whom a person may file a visa petition.  In addition, with strict annual limits on family visas, which are enforced by country, relatives from some countries, such as Mexico, China, India and the Philippines, face a wait of years before a visa becomes available.  Siblings of U.S. citizens from the Philippines, for example, currently must wait about twenty-one years for a via to become available.  Married sons and daughters of U.S. citizens of Mexican decent must wait twenty-five years.

Although supporters of Trump have argued that they oppose illegal immigration, not legal immigration, the actions of the Trump Administration have aimed to reduce the number of legal immigrants.  A cynic may argue that the Republican Party relies heavily on white males for its support, who are declining as a proportion of the U.S. population.  The GOP has chosen not to widen its appeal beyond white males.  Instead the GOP has chosen to cling to its power through non-democratic means such as gerrymandering, and attempting to limit the growth of non-white citizens in the United States.  A reduction in immigration levels, specifically where based on family relationships, can be seen as one way Republicans aim to limit the growth of non-white citizens.

By: William J. Kovatch, Jr.

Trump Suspends Entry of Aliens Seeking to Immigrate Who Cannot Afford Health Insurance

On Friday, October 4, 2019, President Donald Trump issued the “Presidential Proclamation on the Suspension of Entry of Immigrants Who Will Financially Burden the United States Healthcare System.”  Trump found that permitting aliens who did not have or could not afford adequate health insurance to immigrate to the United States would be detrimental to the interests of the country.  Accordingly, Trump suspended their entry into the United States. 
 

In doing so, Trump seeks to expand upon the authority that the U.S. Supreme Court recognized he possessed in the case of Trump v. Hawaii, 138 S.Ct. 2392 (2018).  That case involved the travel ban Trump implemented within the first months of his Administration, and revised twice during the course of litigation.  In the first Proclamation, Trump banned the entry of all nationals from seven countries, claiming that the countries were recognized threats to national security and did not provide adequate information to allow U.S. immigration authorities to evaluate whether their nationals were themselves security threats.  All seven countries possessed a population that was overwhelmingly Muslim.  Viewed in light of statements Trump made during his presidential campaign disparaging Muslims, many called the President's action Trump's Muslim ban.  As Trump revised his actions through subsequent Proclamations, certain countries were dropped from the list, and others added, including two countries that did not possession a majority of Muslims in their population, Venezuela and North Korea.
 

The travel ban was challenged by several states in federal court, which resulted in an injunction preventing the travel ban's implementation pending the outcome of full litigation.  The Supreme Court addressed whether the injunction was warranted.  In doing so, the Court considered the likelihood that the defense of the travel ban would succeed on the merits.  The Court found in favor of the President, reversing the opinion of the U.S. Court of Appeals for the Ninth Circuit which implemented the injunction, and remanded the case for further proceedings.
 

Through Trump's latest Proclamation, he creates a whole new class of aliens inadmissible to the United States, namely aliens seeking an immigrant visa who cannot show that they will be covered by an adequate health insurance policy within 30 days of entry into the country.  To support this new policy, Trump cites section 212(f) and 215(a) of the Immigration and Nationality Act (“INA”).  These are the same statutory provisions that Trump used to support his travel ban.
 

In order to understand the legality of Trump's new policy, it is first necessary to take a step back and consider some of the basics of U.S. immigration law.  Congress defined certain certain classes of aliens who are prohibited from entering the United States.  This is the law of inadmissibility.  Section 212(a) of the INA establishes the grounds for inadmissibility, which include the commission of certain crimes, some health related grounds, habitual drunkenness, public safety and national security grounds, and the likelihood that an alien will become a public charge.  In addition to the enumerated grounds of inadmissibility, Congress granted the President broad discretion, through section 212(f) of the Act, to find that the entry of any alien or class of aliens would be detrimental to the interests of the United States.  Upon the issuance of a presidential proclamation, the President may suspend the entry of such aliens, or place restrictions on the entry of such aliens, as he deems appropriate.
 

Through section 215(a) of the INA, Congress granted the President the authority to prescribe reasonable rules, regulations, orders, limitations and exceptions governing the entry of any alien.
 

In Trump v. Hawaii, the Supreme Court addressed the President's authority pursuant to section 212(f), and found it unnecessary to address the authority granted in section 215(a).  Delivering the opinion of the Court, Chief Justice John Roberts found that Congress granted broad authority to the President through section 212(f).  Trump supported his travel ban through detailed findings in the Presidential Proclamation, crafted the travel ban narrowly, and did not contradict any express limitations as set forth in the text of the INA.  In fact, the Chief Justice noted that Trump's travel ban was supported by a more detailed proclamation than any prior proclamation justifying previous president's invocation of section 212(f).  Critics of the Supreme Court decision decried that the Court had given Trump broad discretion to write new restrictions and requirements in the INA, so long as Trump did not directly contradict the text of the statute.
 

The current policy of imposing health insurance requirements on aliens seeking an immigrant visa appears to be a test of how far Trump's authority over immigration law extends.  Trump essentially creates an entirely new ground of inadmissibility, not specifically proscribed by Congress.
 

Trump begins his Proclamation with findings that the uninsured place a heavy burden on the healthcare system of the United States, making the cost of healthcare more expensive for those with insurance.  The findings read like a typical "blame the poor for their situation" approach common to those who oppose government spending on social programs. 

 

 

It should be noted that the findings concerned the uninsured in general, and are not limited to aliens who are uninsured.  The Proclamation begins:

• Healthcare providers and taxpayers bear substantial costs in paying for medical expenses incurred by people who lack health insurance or the ability to pay for their healthcare.  Hospitals and other providers often administer care to the uninsured without any hope of receiving reimbursement from them.  The costs associated with this care are passed on to the American people in the form of higher taxes, higher premiums, and higher fees for medical services.  In total, uncompensated care costs — the overall measure of unreimbursed services that hospitals give their patients — have exceeded $35 billion in each of the last 10 years.  These costs amount to approximately $7 million on average for each hospital in the United States, and can drive hospitals into insolvency.  Beyond uncompensated care costs, the uninsured strain Federal and State government budgets through their reliance on publicly funded programs, which ultimately are financed by taxpayers.

Thus, Trump blames the high cost of healthcare in the United States on the uninsured.  It may be true that when people receive healthcare for which they cannot afford to pay, that plays a role in the cost of healthcare for others.  However, Trump ignores that the under-regulated alliance between healthcare providers and health insurance companies play a much greater role in making healthcare in the United States unaffordable in the first place.  That is, health insurance companies demand steep discounts from a healthcare provider's listed prices, in exchange for an increased volume of customers covered by the insurance company.  In return, healthcare providers inflate their prices to exorbitant levels so that they can still realize a profit even with the steep discounts granted to the insurance companies.  Healthcare providers then charge these exorbitant prices on the uninsured.  It is this alliance that drives the majority of the high costs associated with healthcare in the United States.  By ignoring this reality, Trump's Proclamation reads like the argument of an insurance company lobbyist seeking to oppose meaningful healthcare reform.
 

At any rate, Trump's connection between high healthcare costs in the United States and aliens without adequate health insurance is tenuous at best.  Trump claims that aliens seeking to immigrate to the United States are three times more likely to lack health insurance than U.S. citizens.  Thus, these aliens should not be permitted to saddle the healthcare system by seeking care for which healthcare providers would not be compensated.  The problem here, is that while Trump claims that aliens seeking to immigrate are more likely to be uninsured, he does not specifically find the rate at which such aliens seek healthcare coverage in the United States.  In addition, Trump makes no specific findings that when immigrant aliens seek treatment they don't pay for that treatment despite being uninsured.  Moreover, Trump ignores the fact that the alliance between healthcare providers and health insurance companies, as discussed above, results in the United States having the highest cost of healthcare in the world.  Thus, what an immigrant could be expected to pay for treatment in the United States far exceeds what immigrants would pay in their country of origin.

 

 

Nonetheless, it could be argued that Trump's new policy is merely a clarification of the requirement, already contained in the INA, that an immigrant not be likely to become a public charge.  Age, health, family status, financial resources, education and skill are already factors set forth by the statute to consider in determining whether an alien is likely to be a public charge.  Health insurance can be seen as merely an extension of that list of factors.  In this regard, some Immigration Judges have already required that a respondent seeking to adjust to the status of a permanent resident address whether he or she has or can afford health insurance when addressing the public charge ground of inadmissibility.
 

Additionally, the requirement is narrowly crafted to address the problem Trump identifies in his findings.  That is, the requirement only applies to aliens who seek to immigrate to the United States.  That is, it applies to aliens who want to live in the United States legally.  The requirement does not apply to non-immigrant visas, such as tourists.  Moreover, the requirement does not apply to those seeking protection as a refugee or asylee.
 

In sum, it does not appear that the new policy will be very effective in reducing the costs of healthcare in the United States.  Rather, it looks like yet another attempt by the Trump Administration to make immigrants scapegoats in its quest to reduce even the legal immigrant levels of the United States.  As some would argue, this is just a continuation of cruelty to deter aliens from coming to the United States to live.  A cynic could point out that the Republican Party's support comes overwhelmingly from white Americans, who are dwindling as a proportion of the country's population.  Instead of broadening the party's appeal to non-white Americans, Republicans have instead chosen to try to limit the growth of minorities as a percentage of the population.  Trump's new policy aimed at restricting immigration, can be seen as an attempt to further that strategy.  However, given the Supreme Court's decision in Trump v. Hawaii, Trump may ultimately prevail in this restriction on immigrants.
 

By: William J. Kovatch, Jr.

Asylum for Victims of Domestic Abuse

Some of my proudest moments representing clients before Immigration Courts has been when I have won asylum for women from Central America who have been the victims of domestic abuse.  Unfortunately, in the Trump Administration's crack down on immigration, the future of such cases are seriously in doubt. 

Through asylum, the United States grants protection to people who find their life or well-being in jeopardy in their home country.  The legal standard for asylum is whether a person was a well-founded fear of persecution based on race, religion, nationality, political opinion or membership in a particular social group.

Congress established the asylum standards through the Refugee Act of 1980.  In that Act, Congress did not define the term "particular social group."  The term, therefore, has been the subject of much litigation in asylum cases.  An entire set of cases from the Board of Immigration Appeals ("BIA), which is the administrative agency that normally hears appeals from Immigration Court decisions, has addressed this term, and developed case law establishing how it is to be defined in individual asylum cases.

In 2014, the "BIA" issued a decision in a case called Matter of A-R-C-G-.  Through that case, the BIA held that "married women in Guatemala who are unable to leave their relationship" constituted an appropriate particular social group upon which an asylum claim can be based.  After the BIA issued its decision, immigration lawyers would slightly modify the approved particular social group to fit the facts of their case.  Thus, a lawyer could define the particular social group to fit the country of origin, such as "married women from El Salvador . . . ."  Or, if the woman was in a committed relationship, but not legally married, the particular social group could be defined as "women in a committed relationship . . . ."

In June of 2018, however, Attorney General Jeff Sessions issued a decision in the immigration appeal of Matter of A-B-.  By statute, the Attorney General can choose to adjudicate an appeal from the Immigration Court himself, and issue a decision that is binding on all Immigration Judges.  Like Matter of A-R-C-G-, Matter of A-B- involved an asylum claim based on a Central American woman who was the victim of domestic violence.  The Attorney General overruled Matter of A-R-C-G-, contending that the BIA did not do an appropriate analysis of the term "particular social group."  Instead, according to the Attorney General, the BIA merely issued a decision based on a concession by both parties.  That is, the lawyers from the Department of Homeland Security, who represent the U.S. Government in appeals from Immigration Courts, served under the Obama Administration, and agreed with the asylum applicant that "married women in Guatemala who are unable to leave their relationship" was an appropriate particular social group.  Attorney General Sessions believed that it was not appropriate for a decision which did not go through the full analysis as set forth in the previous BIA to establish a general rule concerning the particular social group.

While that holding alone was dispositive of the case in Matter of A-B-, the Attorney General went further, proclaiming that any case based on private criminal activity, such as domestic violence and gang activity, were not likely to qualify for asylum.  This statement was not necessary to decide the case at hand, and thus lawyers would call it dicta.  Dicta is not a binding principle of law for lower courts.  However, many Immigration Judges read the Attorney General's statement as more than just mere dicta, and began using it as a rule to decline asylum applications based on domestic violence.

Matter of A-B- had consequences beyond the Immigration Court context.  Pursuant to U.S. law, if an alien is apprehended within 100 miles of the border less than 14 days after entering the United States, that alien can be expeditiously removed from the United States by an officer from Customs and Border Protection.  This is called expedited removal.  However, if that alien has a credible fear of persecution if returned to his or her home country, expedited removal does not apply, and the alien is referred to Immigration Court to have an asylum petition adjudicated.

U.S. Citizenship and Immigration Services ("USCIS"), which administers asylum claims made outside of the Immigration Court system, created a process to determine when an alien has a credible fear of persecution.  Called "credible fear determinations," an asylum officer interviews the alien in a non-adversarial setting, and determines if that alien would likely be successful in filing an asylum application.  After Matter of A-B-, USCIS issued policy guidance that victims of gang violence or domestic violence could not receive a positive credible fear determination.

Twelve aliens who had been denied a positive credible fear determination sued the Attorney General in the U.S. District Court for the District of Columbia.  In December of 2018, U.S. District Judge Emmet G. Sullivan issued a decision in the case of Grace v. Whitaker, 344 F.Supp. 3d 96 (D.D.C. 2018).  Judge Sullivan held that the general rule that an asylum applicant whose claim was based on domestic violence or gang violence could not qualify for a positive credible fear determination was arbitrary and capricious.  He therefore issued an injunction preventing the U.S. Government from applying that portion of Matter of A-B- in credible fear determinations.  The Government has, of course, appealed from this decision.

Specifically, the Judge found that there was no legal basis for a categorical denial of asylum claims based on domestic violence or gang related activities.  Furthermore, such  a rule would run counter to the individualized analysis required in every case by the statute.

Thus, the future of asylum claims based on domestic violence and gang violence remains in question.  On the one hand, a federal court has found a categorical ban, at least in the context of credible fear determinations, to be arbitrary and capricious.  On the other hand, the Trump Administration continues to fight for the ability to deny such asylum claims.

At the heart of Attorney General Sessions' reasoning was that domestic violence and gang-related activities were private crimes, and not the result of government action.  The basis of this argument is that asylum is meant to address persecution perpetrated by a foreign government, not a private citizen.  However, the legal standard in asylum cases is whether the persecution would be perpetrated by the government, or whether the government would be unable or unwilling to control the actions of the perpetrators.

In this regard, the argument in favor of granting asylum to victims of domestic violence centers on proving that the society is one where domestic violence is accepted, and which the government does nothing to address the problem, or is unable to address the problem.  That is, the government cannot turn a blind eye to the problem of domestic violence.

With respect to Central American countries, such as Honduras and El Salvador, the argument has been that the culture of machismo dominates society.  That is, women in such cultures are viewed as mere property of the male with whom they have a relationship.  Therefore, the government does not interfere when a woman becomes the victim of domestic violence.  Whether the applicant can prevail depends on the quality of evidence that can be presented demonstrating a patriarchal culture, and the acceptance of violence against women as a norm.  Assuming the applicant can demonstrate such government inaction on the issue of domestic violence, that applicant should be able to receive the protection of the United States through asylum.

By: William J. Kovatch, Jr.