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The California Supreme Court on Wednesday refused to hear a challenge to a state law that limits police collaboration with federal immigration agents.
The court denied a request by the city of Huntington Beach to review an appellate court opinion in January that found that the issue was a matter of statewide concern and that gave the law precedence over the police authority of charter cities. That reversed a 2018 ruling.
“This is tragic for the rule of law and for local control efforts,” Huntington Beach City Atty. Michael E. Gates said in an email. “Now the lower court ruling stands, which opens the floodgates for the state to legislate and control every aspect of local governance.”
The Orange County city of 200,000 people sued claiming that California’s so-called immigrant sanctuary law, the 2017 California Values Act, interfered with its authority to enforce local laws and regulations.
The law prohibits state and local police from asking arrestees — except for those charged with serious crimes — about their immigration status or notifying federal agents when an immigrant is being released from jail.
California enacted the law following President Trump’s crackdown on illegal immigration. It was hailed as a victory by immigrant advocates seeking to encourage immigrants to trust in police officers and report crime.
But critics decried the law, saying it makes it harder to deport immigrants who commit crimes and leads law enforcement to release them back into communities.
In California, 121 cities have their own charters and others follow the state’s general law. Huntington Beach argued that cities that create their own charters to have a greater say over local affairs shouldn’t be subject to the law since it relates to local policing.
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With nearly 3,000 deaths and more than 160,000 infected by COVID-19 in the United States, it’s clear no one will be spared from impacts of the pandemic. In the past week, four children in immigration detention and seven employees of the Office of Refugee Resettlement who work in children’s detention facilities in New Jersey and Texas tested positive for the virus. Doctors working with detained immigrants have warned members of Congress that immigrant detention centers pose a “tinderbox scenario,” where social distancing precautions are impossible.
Two separate lawsuits are asking federal courts to force the release of unaccompanied children as well as families in immigrant detention, citing the grave health risks of contracting the coronavirus and spreading the disease. These risks are particularly serious because of the confluence of factors in family detention centers: crowded quarters, limited cleaning supplies, and the influx of new families into the detention centers. While it is understood children are usually less at risk of serious complications from COVID-19, a handful of children in the U.S. with COVID-19 have died in the past few days, and children may be more likely to more rapidly spread the disease.
Instead of a public health–oriented response to COVID-19 in the immigration legal system, we are seeing political opportunism. The Trump administration is using the virus as an excuse to swiftly deport unaccompanied minors at the border, despite laws that require that children be allowed to have their cases heard first by an immigration judge. Similarly, the Department of Justice is defying public health guidelines by forcing judges, attorneys, and immigrants to appear in select immigration courts across the country, despite positive COVID-19 tests from court personnel and risks inherent to crowded courtrooms, in order to continue deportation proceedings.
This mistreatment of children is not new. Before the outbreak, children were finding themselves in an increasingly punishing immigration legal system—where they had been separated from their parents, detained in record-breaking numbers for longer periods of time, and held in shocking and abusive detention conditions, including “dog cage” holding cells without mattresses, overflowing toilets, and frigid temperatures. Children do not have to be held in these conditions; unaccompanied children can and should be released more expeditiously to live with family in the U.S., and children detained with parents could be released as a family unit to pursue their legal case outside of detention.
Detained children have experienced forced hunger, dehydration, and sleeplessness. Holly Cooper, an attorney representing detained children, stated: “In my 22 years of doing visits with children in detention I have never heard of this level of inhumanity.” One 15-year-old boy, detained at the jail-like Shenandoah Valley facility, wrote “I want us to be treated as human beings.”
As a law professor and immigration attorney for more than a decade, I have seen firsthand how the immigration system mistreats children. In a recent law journal article, I argue adultification bias can help explain the mistreatment of immigrant children, who are largely teenagers of color. Adultification is the phenomenon whereby children of color are perceived as more adultlike and therefore less innocent than white peers. Adultification has created systemic harm for children of color within public systems like education, juvenile justice, and child welfare. In particular, the disproportionate rates of arrests, adjudications, and sentencing for children of color within the juvenile justice system has been studied closely.
Immigration laws were not designed to protect children. In fact, only a few areas of the law consider the special circumstances of children. The Flores settlement sets minimum standards for detaining minors, limited to children under 18. Under Flores, children should be released as soon as possible to family, when feasible. Furthermore, the Office of Refugee Resettlement, not U.S. Immigration and Customs Enforcement, is tasked with the custody of detained unaccompanied minors. According to legislative history, this is because ORR, under the Department of Health and Human Services, has more expertise in child care. Another child-focused measure is the Trafficking Victims Protection Reauthorization Act of 2008, or TVPRA, which expands legal protections for children including in the areas of asylum law and special immigrant juvenile status, a pathway to legal permanet residence and citizenship available for some children. Lastly, the government has issued guidlelines for children’s cases to improve immigration court proceedures.
In most ways, children are treated the same as adults in the immigration legal system. Children, like adults, are arrested by ICE or Border Patrol agents, may be detained, and are put in deportation proceedings. There are no age limits in immigration court—even babies are deported. Children, like adults, have no right to a government-appointed attorney under immigration law, even though studies show a lawyer can make immigrants up to 10 times more likely to win their cases. Children in immigration court are usually forced to represent themselves. Since immigrants have to prove a defense to deportation, a child without a lawyer must complete immigration forms, amass evidence, and make their argument to win.
Since taking office, President Donald Trump has taken every opportunity to warn of the threat of immigrant children, who “look so innocent. They are not innocent.” Meanwhile, White House press releases and fact sheets denounce the few existing child protection measures as “loopholes” that must be eliminated. Trump has repeatedly called for an end to Flores, with the Department of Homeland Security even proposing new rules to allow the indefinite detention of children (child advocates have challenged the new rules, which have not gone into effect). Trump demanded that Congress amend the TVPRA to restrict children’s access to special immigrant juvenile status.
The purportedly child-protection-oriented ORR has morphed toward an enforcement focus, sharing with ICE information from children’s counseling sessions, allowing ICE inside shelters to fingerprint children as young as 14, and making formal and informal agreements with ICE to share fingerprints of children’s potential sponsors, leading to hundreds of arrests of potential sponsors who were trying to claim their children. The administration slashed the court guidance regarding children’s cases, sanitizing prior language about child sensitivity and deleting child protective modifications, such as leniency in granting motions for continuances. Instead, the new guidance advises judges to be “vigilant” that children may in fact be lying about their age or circumstances, despite no evidence of this as a phenomon.
This move in the immigration legal system to treat children more harshly may be a result of adultification bias against immigrant children. These practices are completely out of sync with our understanding of child development. Research shows that children’s brains are still developing, so courts and the public should take their immaturity and special vulnerability into account. The Supreme Court famously proclaimed in the 2012 case of Miller v. Alabama that the state “cannot proceed as though they [juveniles] were not children.” The immigration legal system has a long history of doing just this. By ignoring migrant children’s immaturity and vulnerabilities, the immigration legal system effectively discriminates against children.
We must reimagine an immigration legal system for children. First, we must recognize and undo racist stereotyping of youth of color, exemplified by calling immigrant children “wolves in sheep clothing.” In a reimagined system, all children would have immigration lawyers, their best interests would be taken into consideration throughout the legal system, and children would no longer be detained for months in jail settings. Ultimately, the immigration legal system must stop proceeding as if immigrant children are not children. In this moment, we must heed the calls from public health officials and immigrant advocates to #ReleaseThemAll before facilities are overtaken by COVID outbreaks—for the safety of children, and for the safety of everyone.
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President Donald Trump signed a $2 trillion coronavirus relief bill last week that promises to mitigate the impact of the crisis on workers — but it leaves out many immigrants.
The bill, known as the CARES Act, delivers direct payments to most taxpayers, vastly expands unemployment benefits, and makes testing for the virus free, among other provisions. But although unauthorized immigrants are no more immune from the effects of the current crisis, the stimulus bill conspicuously leaves them out in the cold — potentially putting them at greater economic and health risk, and impeding public health efforts to stop the spread of coronavirus.
The unauthorized worker population is particularly vulnerable to the virus due to inadequate access to health care. Noncitizens are significantly more likely to be uninsured compared to US citizens, which may dissuade them from seeking medical care if they contract the virus. Compounding matters are the Trump administration’s hardline immigration policies — including wide-scale immigration raids and a rule that can penalize green card applicants for using Medicaid — which have made noncitizens afraid to access care. These factors pose a problem for America’s efforts to slow the spread of the virus, which has killed more than 3,400 in the US as of March 31.
“We’re operating in an environment where we’re constantly having to reassure patients that they can access services,” Jim Mangia, CEO and president of St. John’s Well Child and Family Center — a network of community health centers in the Los Angeles area that serve about 32,000 undocumented immigrants annually — said in a press call. “It’s a constant struggle and in the midst of a pandemic, it’s even more difficult and more dangerous.”
While many immigrants are continuing to work in essential fields, ranging from medical care to cleaning to grocery stores, they may take an economic hit like many other workers who are facing layoffs, furloughs, and pay cuts. And absent financial relief for the population of unauthorized immigrants workers in particular, many may try to continue going to work despite public health warnings to stay home, which could further spread the virus and pose a risk to public health.
“Those who cannot obtain relief are likely to continue going out and trying to earn a living, at the risk of themselves and spreading the virus to others,” Theresa Cardinal Brown, director of immigration and cross-border policy at the Bipartisan Policy Institute, told Vox. “The cost of providing this benefit to them has to be weighed against the need to keep up the restrictions to stop the virus spread.”
Here’s one thing the bill does offer to unauthorized immigrants: free coronavirus testing at government-funded community health centers through a $1 billion federal program. But some community health centers have already reported shortages of tests; Mangia said St. John’s only had 39 tests last week when almost 900 patients presented with symptoms of Covid-19, the illness caused by the novel coronavirus.
There is also a larger, state-level testing program funded through Medicaid, but that’s only available to Medicaid-eligible immigrants — green card holders who have lived in the US for at least five years, immigrants who come to the US on humanitarian grounds such as asylum, members of the military and their families, and, in certain states, children and pregnant women with lawful immigration status. Those groups, however, make up only a small proportion of immigrants living in the US.
US Citizenship and Immigration Services has announced that it won’t consider use of free testing services when evaluating whether immigrants will likely end up relying on public benefits under the “public charge” rule, which went into effect in February. That rule gives immigration officials much more leeway to turn away those applying to enter the US, extend their visa, or convert their temporary immigration status into a green card if it is deemed they would likely use public services now or in the future.
The agency also said it won’t weigh Covid-19 treatment or preventive care, such as a vaccine if it is eventually developed, under the rule — even if those services are covered under Medicaid. It’s a welcome loosening of standards for a Trump administration rule that has taken aim at legal immigration.
The importance of widespread testing, including among immigrant populations, can’t be overstated, as my colleague Julia Belluz writes:
Once one person with the disease is identified, they can be treated in isolation so as not to spread the disease further. Family members and other contacts can be notified and placed under self-quarantine in case they are already infected but have yet to show symptoms. But without adequate testing, that’s not happening.
But the centerpiece provisions of the bill — the expanded unemployment benefits and up to $1,200 in cash payments to taxpayers — won’t be accessible to millions of immigrants.
“Immigrant workers and families who are paying taxes have been cut out from receiving a single dollar,” Marielena Hincapié, executive director of the National Immigration Law Center, said in a statement.
The bill increases unemployment benefits by $600 for all workers for up to four months, on top of what they would get from unemployment insurance. As my colleague Dylan Matthews writes, this is a huge increase from January, when the average UI check was $385 per week.
But only immigrants who can show that they’re authorized to work in the US can file for unemployment, including green card and temporary visa holders. For visa holders who have been laid off during the crisis, they will only be eligible for unemployment for as long as their visa stays valid. That’s a period of 60 days for those on H-1B skilled worker visas, unless they find another job in that time — an unlikely prospect given that many businesses have already instituted hiring freezes.
Only some states, including California and Texas, allow beneficiaries of the Deferred Action for Childhood Arrivals (DACA) program, which offers work permits to some 700,000 unauthorized immigrants who came to the US as children, to file for unemployment. Unauthorized immigrant workers more broadly — who number some 7.6 million, according to the Pew Research Center — are also typically ineligible for unemployment, but policies differ by state.
Under the stimulus bill, the government will also start sending out checks to most taxpayers starting in April. The amounts range based on income, but they’re phased out for individuals making more than $99,000 and couples making $198,000.
Only immigrants who have Social Security numbers can receive those checks, including green card holders and “resident aliens” who have lived in the US long enough (usually five years) to file taxes as residents. Temporary visa holders, DACA recipients, and beneficiaries of Temporary Protected Status — which the US has historically offered to citizens of countries suffering from catastrophes such as natural disasters or armed conflict — could therefore qualify.
But there is a big exclusion for those in households with people of mixed immigration status, where some tax filers or their children may use what’s called an Individual Taxpayer Identification Number (ITIN).
The IRS issues ITINs to unauthorized immigrants so they can pay taxes, even though they don’t have a Social Security number. If anyone in the household uses an ITIN — either a spouse or a dependent child — that means no one in the household will qualify for the stimulus checks, unless one spouse served in the military in 2019.
The stipulation could impact an estimated 16.7 million people who live in mixed-status households nationwide, including 8.2 million US-born or naturalized citizens.
This also includes those with deportation protections under the Obama-era DACA program, children and young adults whose parents often don’t have legal status. They’re left wondering how they can help support their families so that their parents don’t have to go to work, where they risk getting sick, and how they can help cover the costs of their parents’ medical care should they need it, Sanaa Abrar, advocacy director at the immigrant advocacy group United We Dream, told Vox.
“With the national health crisis and what’s becoming a national unemployment crisis, folks are concerned about how they’re not only going to stay healthy and safe but also how they’re going to keep their jobs and how they’re going to find means of financial support,” she said.
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Three weeks ago, with much of the United States already gearing up to limit the spread of the coronavirus, the Trump administration’s chief immigration judge sent out a stern order to immigration courts nationwide to take down all public health posters, printed in English and Spanish, on how to deal with the pandemic. “Per our leadership,” the order said, immigration judges did not have the authority to post fliers. “If you see one (attached), please remove it.”
Soon after the order was revealed by The Miami Herald, the Department of Justice, which oversees the immigration courts, reversed course and told the paper that “the signs shouldn’t have been removed.”
A bureaucratic blunder? More like a case in point of how the administration’s obsession with immigrants, undocumented, legal or aspiring, has infected its efforts to control the spread of a pandemic, exacerbating the crisis.
Tough times call for tough measures, to be sure, and the administration’s anticipated order to turn back all asylum seekers and other foreigners trying to cross the southwestern border illegally makes sense in the context of measures already taken to severely restrict movement across other American borders, land and sea.
The immigration system along the southern border is overtaxed, and detention centers across the United States are already bursting with nearly 40,000 people, at enormous risk of contagion. The coronavirus doesn’t discriminate between carriers who are held behind bars and those whose job it is to guard them. The Immigration and Customs Enforcement agency has continued to make arrests and has shown no intention of releasing nonviolent detainees, though judges in some states have ordered some released out of health concerns.
Rounding up undocumented immigrants and shutting down the border is something President Trump has yearned to do since long before the coronavirus began its fateful spread. And his animosity toward undocumented immigrants is affecting the efforts to contain the coronavirus far beyond the border.
As Miriam Jordan of The Times reported, the virus has spread more fear among immigrants, legal and undocumented — the fear that seeking medical or financial help will put them in the cross-hairs of the administration’s repressive immigration policies.
At the beginning of March, more than 700 public health and legal experts addressed a petition to Vice President Mike Pence and other federal, state and local leaders asking, among other things, that medical facilities be declared enforcement-free zones (ICE currently classifies them as “sensitive locations,” where enforcement is avoided but not precluded). The Citizenship and Immigration Service subsequently appeared to signal that it was suspending enforcement of a new “public charge” rule, which makes it harder for immigrants to obtain the green card of a permanent resident if they tap federal benefits, but the suspension has not been publicized.
Those who are not documented are afraid that going to a public health facility will expose them to ICE agents. Immigrants in the country legally and hoping to obtain a green card fear that seeking help will ruin their chances under the public charge rule, which went into effect in February after injunctions blocking it were lifted by the Supreme Court.
These immigrants are particularly at the mercy of the pandemic. They often live in crowded conditions, have little money and no paid sick leave, and so lack the ability to self-quarantine. And according to the Kaiser Family Foundation, 23 percent of noncitizens lawfully in the country and 45 percent of those who are undocumented lack health insurance.
Most immigration courts, meanwhile, were still working at full steam long after state and federal courts across the country sharply scaled back their activities. On Monday, several groups representing lawyers who work with immigrant clients sued the administration to stop in-person immigration hearings during the pandemic. It was only last week that the Executive Office for Immigration Review, the Justice Department agency that oversees immigration courts, closed down some courts and suspended hearings for immigrants not in custody.
The coronavirus does not care which passport its human hosts may carry or tongue they speak. Nor does it serve global public health for only American citizens to wash their hands and practice social distancing. Those are best practices that should transcend borders and walls and help us acknowledge our common plight, and humanity.
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