Immigration Update: the Flores Settlement, the Public Charge Rule, and More

Last September, the BBA released Immigration Principles that have guided our response to various immigration-related issues since. Every few months, we like to offer updates on significant immigration developments and events to be reminded of these principles and their importance, as well as the BBA’s long-standing support of measures to uphold due process and equal protection rights and access to counsel for immigrants.

In the past few months, there have been four significant developments in immigration policy that we would like to direct your attention to.

The Flores Settlement

In October 2018, as part of our first Immigration Update following the publication of the Immigration Principles, we published an Issue Spot on the Department of Homeland Security’s proposed regulations related to the Flores Settlement Agreement (FSA). The following month, we filed a letter, directed at Debbie Seguin, the Assistant Director of the Office of Policy at U.S. Immigration and Customs Enforcement, opposing this effort to undermine the protections asserted by the FSA.  Earlier this summer, the Trump Administration announced a proposal to terminate the FSA, a move that would significantly reduce protection of detained migrant families traveling with minors.

The FSA was established in 1997 as the outcome of the Flores v. Reno case. This court agreement requires the government to release children from immigration detention, without unnecessary delay, to their parents. The settlement also required immigration officials to provide detained minors a certain quality of life, including things such as good drinking water and medical assistance in emergencies. (A Congressional Research Service report details the conditions and protections of minors required by the settlement.)

The settlement was reached after Jenny Lisette Flores, a 15-year-old girl from El Salvador, was arrested by the former government agency Immigration and Naturalization Service (INS) while trying to cross the US-Mexico border and was taken into custody separate from the family member she was traveling with. The ACLU filed a class-action suit on behalf of Jenny and other minors, eventually leading to the Flores agreement.

The Trump administration has made repeated attempts to change the Flores settlement agreement, arguing that it prevents the government’s efforts to deter undocumented immigrants from entering the country. The administration claims that this new rule will keep families together by reducing the number of undocumented children attempting to travel into the United States. However, attorneys for migrant children and advocates for immigrant rights are arguing—and the BBA shares this concern—that this effort will compromise the health and safety of detained minor children by allowing the government to detain them as long as it wishes.

A coalition of 20 states led by California and Massachusetts are filing a lawsuit against the Trump administration in the hopes of blocking the implementation of the proposed regulation and protecting the FSA. Our November 2018 letter, issued by then-BBA President Jon Albano, argues that failing to fulfill the purpose of the FSA “raises serious due process concerns, is fiscally irresponsible, and will endanger the well-being and rights of immigrant children”. We have for years been speaking in opposition to practices that threaten the rights and well-being of immigrants and in support of measures that ensure the just, humane, and fair treatment of all individuals within our borders, but now those positions have been enshrined in our Immigration Principles.

The Public Charge Rule

Earlier this month, the Trump administration announced a proposed change to a regulation known as the “public charge” rule. This regulation denies green cards to immigrants deemed likely to be reliant on various forms of social welfare.

The BBA submitted comments in opposition to the proposed public charge rule in December 2018. In the letter, then-President Jon Albano cited our Immigration Principles and argued that the new public charge rule would “create significant barriers to accessing justice, have harmful impacts on immigrants, their families, and our communities and economies, and may be applied unfairly and inconsistently”. Further, Mr. Albano noted that in the past, public charge determinations have been used to justify exclusion of groups such as low-income Irish immigrants and Jews fleeing Nazi persecution, and how dangerously close to repeating these troubling moments in history we are. The BBA urged others to join them in opposing the proposed public charge rule.

Under current policy, only immigrants who are primarily dependent on cash benefits or in government-funded, long-term institutional care would be considered public charges. The proposed rule would dramatically expand the list of public benefits that could lead to an immigrant being considered a “public charge”. Starting in October, the government’s decision to grant green cards will be based on an aggressive wealth test that will deny legal residence to hundreds of thousands of immigrants. The new rule appears designed to reshape, reform, and significantly shrink the legal immigrant community. A study conducted by the Migration Policy Institute when the proposed regulations were first announced in June 2018 found that:

• Nearly half of the U.S. noncitizen population could be at risk of a public-charge determination – up from a current 3 percent.
• The rule will discourage millions of immigrants from accessing health, nutrition, and social services.
• The effects of this rule are likely to stretch beyond immigrants themselves to affect U.S.-citizen children whose parents may disenroll them from services for fear of immigration consequences.

A new Migration Policy Institute study from last month found that of the legally present noncitizens in families with annual incomes below 250 percent of the federal poverty line, the vast majority are from Mexico and Central America, Africa, and Asia. In fact, 72% of legal noncitizens from the Caribbean, 71% of those from Mexico and Central America, and 69% of those from Africa are in families with annual incomes below 250 percent of the federal poverty line. The intention behind this rule is said to be that new legal residents “carry their own weight”, without acknowledging that it will specifically target poor people from Latin America, Africa, and parts of Asia. In other words, this rule will directly impact poor people of color, discouraging them from seeking out public assistance and putting their housing situation, health, and economic stability at risk.

This isn’t the first time that Trump has targeted immigrants coming from specific countries or attempted to curtail legal immigration into the United States, and follows a set of troubling immigration policies proposed by the current administration.

Halt of Medical Deferred Action Program

Earlier this summer, the Trump administration announced that it was ending the program that allowed immigrants to avoid deportation while they or their relatives were undergoing lifesaving medical treatment. This program, called “deferred action”, ensured at least 1,000 qualified people every year would not be deported until their medical treatment was over. The BBA tweeted that we were “deeply concerned” and “dismayed” by this change in policy and referenced one of our Immigration Principles, that “no person’s rights or human dignity should be devalued on the basis of immigration or citizenship status” to explain our opposition to it.

USCIS began informing families that it would stop considering requests for deferred action and that the families must leave the country within 33 days. In a statement to the Boston Globe, Congressional Representative Ayanna Pressley said that, “deportation from the United States with this type of medical condition is a death sentence”.

Since the announcement of this rule change, public outcry has led the Trump administration to reinstate the program. This followed a coordinated effort by 100 members of Congress who signed a letter denouncing the suspension of the program as well as public uproar as migrants affected by this change began to come forward. The American Immigration Lawyers Association welcomed the decision and thanked the impacted clients for bringing the “cruelty of this rescission to light through their bravery and courage sharing their stories with the agency, the media, and Congress”.

Halt of Asylum Application Processing in Boston and Newark

Boston and Newark are currently the only two cities that process asylum claims for New England residents, and that may be coming to an end. The Trump Administration is halting the processing of most New England asylum cases, leaving behind more than 40,000 pending cases, by redirecting most of the officers from the Boston and Newark offices to the southern border.

USCIS Director Ken Cuccinelli tweeted that the claim that Boston and Newark will stop processing asylum claims is false, and that it is simply a slight shift of staff to help with the “credible fear” workload piling up at the southern border. However, immigration attorneys and asylum officers are saying that they received an email from USCIS last week saying that it would no longer schedule any new asylum interviews in Boston and only a small number in Newark. Senator Elizabeth Warren said it is part of the Trump Administration’s “shameful campaign to prevent people fleeing violence from finding refuge in the US.”

We will continue to monitor these situations as new developments unfold.

-Lucia Caballero Guiu
Government Relations and Executive Assistant
Boston Bar Association