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Immigration Perspectives: COVID-19 Edition

Each week during the COVID-19 crisis, we’ll publish a quick recap of our top three immigration-related storylines. Let us know what you think! And be sure to tune in each week to our podcast, This Week in Immigration, for even more in-depth analysis of immigration news from the last two weeks. Here we go.

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1. Closing Borders

This week many countries announced severe travel restrictions at their borders, both for foreign travelers and their own citizens. The United States joined them this week by announcing severe restrictions to travel at the Canadian and Mexican borders. The agreement with Canada, announced jointly by both countries, would prohibit “non-essential” travel. The Federal Register announcement from the Department of Homeland Security primarily defined “non-essential travel” as tourism or recreational travel. Exemptions include travel for medical treatment, people traveling to work in the United States (although the only example given was agricultural workers, this might also apply to other folks with jobs in the United States), truck drivers facilitating commerce, members of the military and diplomats, and emergency and public health responders. Much will be left to the discretion of border officials. However, according to Canadian Prime Minister Justin Trudeau, the countries also agreed to extend the return provisions of the U.S.-Canada Safe Third Agreement for asylum seekers arriving between ports of entry “temporarily.” These are the most significant restrictions on the border since the immediate aftermath of 9/11. While those restrictions lasted a couple of weeks, these restrictions could be in place for much longer, which could have more significant impacts on both countries’ economies. The attempt to keep cargo and trade flowing even with these restrictions in place may have to adjust if screening for even the fewer number of travelers

The situation at the U.S.-Mexico border is more chaotic. DHS announced similar restrictions on non-essential travel at the Mexican border to those in the Canadian announcement, but the situation of asylum seekers and other third-country nationals was more muddied. Leaked information earlier in the week seemed to indicate the administration would use public health authorities to “deny entry” to anyone at the U.S.-Mexico border, including third-country asylum seekers and return them to Mexico without any process in the United States. However, Mexican Foreign Secretary Marcelo Ebrard stated that Mexico would not accept non-Mexican returns without due process. President Donald Trump, during his Friday daily news conference after acting DHS Secretary Chad Wolf announced the new travel restrictions, seemed to contradict Wolf and agree with Mexico that it would not have to take back non-Mexicans. “Why would they?” he said. CBP released a statement that it would not do “administrative processing” and return migrants directly home to their countries. As of this writing, it remains to be seen what exactly the United States and Mexico can agree on when it comes to restricting travel at the border or how DHS will reconcile obligations under asylum law with the new orders to restrict travel. But already it is looking very different than what is happening at the U.S.-Canada border, which seems to be more about containing the virus than immigration enforcement that is still driving policies around the southern border.

2. Immigration System’s Erratic Response

Immigration courts reduced master calendar hearings but mostly went ahead with other business as usual, although some courts were closed in some regions. And this despite an unprecedented call from both the immigration judges’ union and the union representing Immigration and Customs Enforcement attorneys in immigration court to close the courts down across the country. Meanwhile, U.S. Citizenship and Immigration Services also announced the temporary closure and suspension of operations at its field offices until April 1, although locations in California and New York, where the governors have issued shelter-in-place orders will be closed longer. ICE has so far refused calls to release detainees from immigrant detention centers who may be at higher risk of complications should they contract COVID-19, while rumors spread of employees at private detention facilities who may have tested positive. But they did announce that they would be scaling back interior enforcement operations and prioritizing threats to public safety and those who would be subject to mandatory detention for serious criminal convictions. They would “exercise discretion” to defer enforcement against others until the “end of the current emergency.” And at the border, well, Border Patrol is trying its best not to touch anyone they apprehend and CBP officers at ports of entry are trying to figure out what “non-essential travel” means at the Canadian border and how it differs at the Mexican border.

The fact that the response across the whole immigration system has been so uncoordinated and erratic is par for the course in this administration, which has shown little regard for operational planning for policy changes. But in this case, the lack of planning is putting both migrants, their attorneys, and government employees at unnecessary risk. This is when a “balance of interest” test between immigration enforcement and public health needs to be made. We think the scales tilt toward public health, but the lack of foresight and attention to the broader immigration system problems before now makes that choice much harder.

3. Public Charge and COVID-19 Mitigation

Public health officials, members of congress and immigration advocates all called on USCIS and DHS writ large to suspend enforcement of the recently introduced public charge regulations, expressing concern that fear of triggering the rule would deter immigrants or their families from seeing testing or treatment for COVID-19, which would hurt the efforts to reduce the spread of the illness. USCIS did issue a statement early in the week that seeking testing or treatment for COVID-19 would not trigger public charge inadmissibility. However, that probably doesn’t go far enough. It has been more than two years since this rule was first rumored, and in that time there has been a great deal of reporting that immigrants, even those fully eligible for various benefits, are disenrolling and forgoing health care out of fear of future immigration implications. The atmosphere is by now almost impervious to nuance about what is or isn’t covered or who is or isn’t covered. The only way to obviate this and ensure that everyone gets care is to announce a full moratorium, at least through the crisis. Public health experts warn that anyone who is not seeking appropriate care could be spreading the disease further. There is no medical reason to deter anyone from seeking care, and every reason to encourage all to do so. Stay tuned on this one.

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