The coronavirus pandemic has shaped nearly every aspect of daily life over the past few weeks, deeply impacting our justice system and its ability to continue to function normally. One area that is set to be particularly impacted by the public health emergency is immigration. Here, we will outline some of the recent changes to immigration policy that have come up as a result of the public health emergency.
Coronavirus and Public Charge
According to Protecting Immigrant Families (PIF), a group of immigrant allies in Massachusetts, the public charge rule has discouraged many immigrants and their families from seeking care or accessing safety net programs. However, US Citizenship and Immigration Services (USCIS) has announced that immigrants can seek testing, treatment, and prevention of COVID-19 without fearing immigration consequences due to public charge. Here are the answers to some of the most commonly-asked questions regarding coronavirus and the public charge rule:
- All MassHealth plans, including MassHealth Limited, will pay for a COVID-19 test and treatment, with no out-of-pocket costs for individuals.
- USCIS has specifically said it will not consider “testing, treatment, nor preventative care (including vaccines, if a vaccine becomes available) related to COVID-19” as a negative factor in the public charge test. Therefore, PIF recommends that everyone who needs care during the COVID-19 health crisis should seek it out without fear of it affecting their immigration status.
- Receiving unemployment benefits as part of the COVID-19 crisis response will not be considered under the public charge test. Applying for unemployment poses no risk to immigrants’ status.
- Immigrants who are subject to the public charge ground will have an opportunity to present evidence regarding how COVID-19 impacted the totality of their circumstances, including their use of relevant public benefits (such as SNAP).
On March 20, the Department of Homeland Security (DHS) issued a notice announcing the decision to limit the travel of individuals from Mexico and Canada into the United States to “essential travel” only. These restrictions will remain in effect until April 20, 2020. These restrictions will be in place for 30 days, but may change depending on the state of the pandemic.
DHS will suspend entry of all migrants “seeking to enter the US without proper travel documentation,” for both the northern and southern border.
Immigration Detention and ICE Enforcement
ICE enforcement activities continue, but the agency has said it will be “focusing enforcement on public safety risks and individuals subject to mandatory detention based on criminal grounds.” For those individuals who do not fall into those categories, ICE will delay enforcement actions until after the crisis or utilize alternatives to detention. ICE will continue to carry out “mission critical” criminal investigations and enforcement operations. Examples include child exploitation, gangs, narcotics trafficking, human trafficking, human smuggling, and participation on the Joint Terrorism Task Force. Furthermore, ICE considers health care facilities to be “sensitive locations” and it has explicitly said that during the COVID-19 crisis, it will not carry out enforcement operations at or near health care facilities.
Customs and Border Protection (CBP) announced that they will no longer detain immigrants in their holding facilities and instead will immediately return them to the country they entered from (Canada or Mexico). Where such a return is not possible, CBP will return them to their country of origin. Secretary Azar acknowledged that “CBP facilities were never designed to hold large numbers of people and to protect agents and migrants form infection during a pandemic, nor to treat them for a novel virus if large numbers are infected”.
Furthermore, ICE has ceased social visitation in all of its detention facilities, as of March 13. It has also created a “screening guidance” for new detainees, as well as quarantine and “cohorting” measures for immigrants who have symptoms of the virus. Advocates and lawmakers have called on ICE to minimize the risk of the virus propagating inside the agency’s detention centers by releasing as many detainees as possible. So far, however, the agency has not implemented this measure.
Prisoners’ Legal Services (PLS), the Massachusetts Law Reform Institute (MLRI), and other advocate organizations in Massachusetts came together to urge ICE to “take every measure possible to protect the health of the immigrants in ICE custody in New England by releasing immigrants in ICE custody”. They add that “ending immigration detention is critical to public health and safety.”
Immigration Court Closures
The National Association of Immigration Judges has pleaded with the Trump administration to close all immigration courts in order to preserve the safety of the judiciary as well as that of detained immigrants and their attorneys. The Executive Office of Immigration Review (EOIR), part of the Department of Justice, has shut down only 11 of its 68 courts, and those are for cases where immigrants are not in detention. Those 11 non-detained courts will be closed through April 10. Immigration court staff are concerned for their health and safety and have repeatedly urged the government to take executive action.
The Director of the EOIR released a policy memorandum on March 18 outlining a set of guidelines that all immigration courts across the nation are instructed to take in order to limit the risk of infection for court attendees. This includes encouraging judges to resolve matters through written pleadings, stipulations, and joint motions as much as possible, limiting the need for certain parties to physically appear in court.
The United States is putting a temporary pause on refugee admissions in order to curb the rate of coronavirus infection. The move comes after the International Organization for Migration (IOM) and the UN Refugee Agency announced a suspension of resettlement travel. The pause is expected to be in place through April 6.
USCIS announced that it is suspending its in-person services, including all interviews and naturalization ceremonies, until at least April 1. USCIS staff will continue to perform duties that do not involve contact with the public.
Immigrant attorneys and advocates are concerned that these closures could put legal immigrants whose visas are about to expire in danger of violating their visa conditions. For instance, for foreign nationals whose work permits are about to expire, they may have to leave the country or request extensions. AILA sent a letter to USCIS demanding immediate suspension of all deadlines in order to account for the disruptions the pandemic has caused.
For more information, please access the following resources:
- BBA Immigration Law Section Resource Guide: https://bostonbar.org/docs/default-document-library/bba-immigration-section-covid-19-resources-guide0288f220e5476c12b473ff0000ac6d92.pdf?sfvrsn=e6c09ea0_2
- AILA 2019 Novel Coronavirus Resource Center: https://www.aila.org/advo-media/issues/all/covid-19
- Commonwealth of Massachusetts COVID-19 Information: https://www.mass.gov/resource/information-on-the-outbreak-of-coronavirus-disease-2019-covid-19
- City of Boston Immigrant Advancement: https://www.boston.gov/departments/immigrant-advancement
Government Relations Assistant
Boston Bar Association