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Trump Seeks to Stop Counting Unauthorized Immigrants in Drawing House Districts

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  WASHINGTON — President Trump directed the federal government on Tuesday not to count undocumented immigrants when allocating the nation’s House districts, a move that critics called a transparent political ploy to help Republicans in violation of the Constitution.The president’s directive would exclude millions of people when determining how many House seats each state should,

 

WASHINGTON —

President Trump directed the federal government on Tuesday not to count undocumented immigrants when allocating the nation’s House districts, a move that critics called a transparent political ploy to help Republicans in violation of the Constitution.The president’s directive would exclude millions of people when determining how many House seats each state should have based on the once-a-decade census, reversing the longstanding policy of counting everyone regardless of citizenship or legal status. The effect would likely shift several seats from Democratic states to Republican states.

“There used to be a time when you could proudly declare, ‘I am a citizen of the United States,’” Mr. Trump said in a written statement after signing a memorandum to the Commerce Department, which oversees the Census Bureau. “But now, the radical left is trying to erase the existence of this concept and conceal the number of illegal aliens in our country. This is all part of a broader left-wing effort to erode the rights of Americans citizens, and I will not stand for it.”

The action directly conflicts with the traditional consensus interpretation of the Constitution and will almost surely be challenged in court, potentially delaying its effect if not blocking its enactment altogether. But it fit into Mr. Trump’s efforts to curb both legal and illegal immigration at a time when he is anxiously trying to galvanize his political base heading into a fall election season trailing his Democratic opponent.

“I think the Donald Trump view is: ‘I can look like I’m trying to do something by stoking anti-immigrant fervor, and if I lose in court then, I just stoke anti-court fervor too,’” Joshua A. Geltzer, the director of the Institute for Constitutional Advocacy and Protection at Georgetown, said in an interview. “It should be legally impossible as well as factually difficult to do.”

The move comes a year after Mr. Trump was blocked by the Supreme Court from adding a citizenship question to the census on the grounds that its ostensible reasoning “seems to have been contrived.” The administration has been trying ever since to collect information on undocumented immigrants through separate means like driver’s license files.

A study last year by the Center for Immigration Studies, a group that supports limits on immigration, found that excluding immigrants from the count for purposes of drawing congressional districts would take away seats from some states while giving more to others.

Excluding unauthorized immigrants in 2020 would redistribute three seats, the study found, with California, New York and Texas all losing a seat that they would have had otherwise, while Ohio, Alabama and Minnesota would each gain one. The study found even more sweeping effects if the U.S.-born children of undocumented immigrants were excluded, but the president’s directive made no mention of them.

Steven Camarota, the research director for the center, said the administration’s effort would be difficult administratively and likely tied up in court. “Nevertheless,” he said, “the president has done the country an important service by reminding us that tolerating large-scale illegal immigration creates a number of unavoidable consequences, including diluting the political representation of American citizens in Congress and the Electoral College.”

The White House separately asked congressional appropriators last weekend to include $1 billion into the next coronavirus relief package for the purpose of conducting a “timely census.” The Census Bureau had previously sought permission to extend the tally of the hardest-to-count people into October and delay delivery of reapportionment population totals to next year.

The $1 billion could allow the bureau to abandon that plan and accelerate the counting to deliver a reapportionment count to Congress in December, before Mr. Trump leaves office if he loses the election to former Vice President Joseph R. Biden Jr. It could mean that less time is devoted to counting the marginalized people than in a normal census, which experts believe would benefit Republicans.

The president’s directive on Tuesday amounted to his latest election-year effort to restrict immigration and immigration rights in the United States, lately predicated on the need to stem the spread of the coronavirus.

The administration decided last month to suspend new work visas and bar hundreds of thousands of foreigners from seeking employment in the United States, drawing immediate opposition from business leaders and several states.

But last week administration officials backed away from a separate plan to strip international college students of their visas if they did not attend at least some classes in person. Earlier this month, Mr. Trump told Telemundo that he would sign a “much bigger bill on immigration” through an executive order, although that has not come to fruition.

The president’s move to exclude unauthorized immigrants from congressional apportionment upends a long history. Even as he signed his memorandum on Tuesday, the Census Bureau’s own website continued to say in a question-and-answer section that undocumented residents are to be counted: “Yes, all people (citizens and noncitizens) with a usual residence in the 50 states are to be included in the census and thus in the apportionment counts.”

The president’s policy appeared at odds with the Constitution, which requires the government to conduct an “actual enumeration” of all people living in the United States without distinguishing whether they are citizens. But the memorandum signed by Mr. Trump argued that the government has always made distinctions like not counting foreign diplomats or temporary visitors even though they are in the United States physically. Therefore, the memorandum argued, the government can make the further distinction of not counting people who have no legal right to be in the country in the first place.

Critics said the administration’s efforts first to include a citizenship question and now to disregard undocumented immigrants from apportionment would lead to undercounts of even legal noncitizens and minority residents, resulting in less representation and federal funding in areas where they live, which tend to vote Democratic.

Marielena Hincapié, the executive director of the National Immigration Law Center Immigrant Justice Fund, said that regardless of whether Mr. Trump’s latest action was legal, it would discourage compliance with the census among Latinos, who already complete the survey at lower rates than people of other races.

“This is his go-to play every time that he’s feeling cornered or he’s feeling like he’s losing,” Ms. Hincapié said. “He uses immigrants and immigration to divide and distract, and at the same time he sends that chilling effect through all immigrant communities who have already been living in fear under his administration.”

Michael Wines contributed reporting.

Source: Trump Seeks to Stop Counting Unauthorized Immigrants in Drawing House Districts

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The Green Card Process Through the Lens of a DMV Visit

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As an immigration attorney, I try to provide clients with a basic, yet insightful, understanding of various aspects of a complex immigration system. It’s not always easy, but I often find analogies to something commonplace can be helpful.  One analogy I’ve found to work well to explain the green card process beyond describing its mere,

As an immigration attorney, I try to provide clients with a basic, yet insightful, understanding of various aspects of a complex immigration system. It’s not always easy, but I often find analogies to something commonplace can be helpful.  One analogy I’ve found to work well to explain the green card process beyond describing its mere sequence of form filings likens the process to a visit to a Department of Motor Vehicles (DMV) office.

In my practice area of business immigration law, green card processes are mostly employment-based and involve the successive filing of a labor certification application, immigrant petition, and adjustment of status application (with the first not always required and the latter two sometimes eligible for concurrent filing). So I’ll refer to these types of filings in describing the analogy here.  But variations of the analogy may be equally applicable to other types of green card processes, such as those in which the aspiring permanent resident will apply for an immigrant visa overseas rather than adjustment of status within the United States, as well as those based on family relationships and those available to asylees and refugees.

The trappings of a visit to the DMV, no matter the state, may be familiar to you: the issuance of a waiting number determining your place in a queue, followed by a long wait for your number to be called at one of several counters to file required paperwork, followed yet again by a lengthy wait for your paperwork to be processed, and eventually – hopefully – approved without issue.  The counter at which you’ll be called, and the length of the corresponding queue (or maybe in some fortunate instances, the absence of one altogether), often depends on specific factors, such as the type of service you’re seeking.

Just as you’re issued a waiting number upon entry into a DMV office, aspiring permanent residents are issued a priority date when the first major filing in their green card process (either the labor certification application or immigrant petition) is submitted.  The priority date is the date this first filing is submitted and determines, once the immigrant petition is approved, the aspiring permanent resident’s place in any existing queue to apply for adjustment of status.

Similar to how you wait at the DMV for your number to be called to file your paperwork at the appropriate counter, aspiring permanent residents face varying wait times for their priority date to be “called” at a designated “counter” to apply for adjustment of status.  The “counter” in the green card process at which aspiring permanent residents must apply for adjustment of status is based on a combination of two main factors: their immigrant classification (which, when speaking with clients, I refer to as their “green card category”) and their country of chargeability (which I refer to as their country of birth).  Aside from some significant exceptions outside of the employment-based green card process,[1] the law limits the supply of green cards available each fiscal year.  Because the law allocates this limited supply based on a combination of both immigrant classification and country of chargeability, queues form at “counters” where the demand for green cards exceeds the available supply.  And the more severely demand exceeds supply, the longer the queue will be. This analogy helps to show why EB-2 and EB-3 immigrants born in India and China are often confronted with waits lasting many years for their priority date to be “called” at their designated counters,[2] while EB-2 and EB-3 immigrants born in most other countries often face no such queue.  In technical terms, the existence of a queue at a given “counter” means the availability of green cards associated with that counter’s classification and chargeability combination is “retrogressed.”  If there’s no queue, green card availability at that counter is “current.”

A visit to the DMV often entails a wait of several hours sitting and keeping watch of your designated counter at it serves the visitors who arrived before you until your own number is finally called.  Likewise, many aspiring permanent residents monitor the often plodding, month-to-month movement of “cut-off dates” in the Bureau of Consular Affairs’ monthly Visa Bulletins for the designated “counter” at which they must apply for adjustment of status.[3]  The Visa Bulletin for a given month contains various charts showing whether a queue for filing an adjustment of status application exists for any classification and chargeability combination, and if so, how long the queue is.  Combinations for which there is no queue are assigned a “C” notation, indicating that green card availability is current and that the adjustment of status application can thus be filed at any time that month, including in concurrence with an immigrant petition if it has not already been approved, and assuming any prerequisite labor certification has been granted. Combinations for which there is a queue, and for which green card availability is thus retrogressed, are denoted by a “cut-off date,” with older dates reflecting longer queues.  Aspiring permanent residents seeking to adjust status at a “counter” at which green card availability is retrogressed can track their place in the queue by comparing their priority date with the applicable cut-off date each month.  Priority dates that fall before the applicable cut-off date in a given month are those that have been “called,” indicating that much like counters at which green card availability is current, an adjustment of status application can be filed at any time that month, including in concurrence with an immigrant petition if it has not already been approved, and assuming again that any prerequisite labor certification has been granted.

Like processing of paperwork filed at a counter at the DMV, processing of an adjustment of status application may take a long time.  But eventually – hopefully – the application is approved without issue.  And unlike a visit to the DMV, having qualified counsel during the green card process can make all the difference in one’s chance of success.

[1] For example, “immediate relatives” (spouses and children of US citizens, and parents of US citizens if the citizen is at least 21 years old) are exempt from annual numerical limits on green card availability. INA 201(b)(2)(A)(i).
[2] Aspiring permanent residents for whom the queue for applying for adjustment of status involves a wait of several years, such as EB-2 and EB-3 immigrants born in India and China, commonly change jobs or employers in the course of their wait. Such a change can require a restart of the green card process since employment-based green card processes are generally job and employer specific.  But to allow aspiring permanents residents who change jobs or employers to keep their place in queue, the law permits them to retain their priority date under certain conditions if they are the beneficiary of a previously approved EB-1, EB-2, or EB-3 immigrant petition, and likewise become the beneficiary of an approved EB-1, EB-2, or EB-3 immigrant petition based on their new job or employer. 8 CFR 204.5(e). 
[3] US Citizenship and Immigration Service also publishes monthly updates indicating whether to use the Visa Bulletin’s Dates for Filing charts or its Final Action Dates charts, to determine whether an adjustment of status application may be filed.

Source: The Green Card Process Through the Lens of a DMV Visit

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