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Two Nationwide Injunctions Block “Public Charge” Rules Amid Pandemic

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FOR IMMEDIATE RELEASE
July 29, 2020

CONTACT
– Juan Gastelum, National Immigration Law Center, (213) 375-3149, media@nilc.org
– Alejandra Lopez, The Legal Aid Society, (917) 294-9348, ailopez@legal-aid.org
– Jen Nessel, Center for Constitutional Rights, (212) 614-6449, –jnessel@ccrjustice.org
– Yatziri Tovar, Make the Road New York, (917) 771-2818, yatziri.tovar@maketheroadny.org

Judge Issues Two Nationwide Injunctions Blocking “Public Charge” Immigration Rules Amid COVID-19 Pandemic

New injunctions will allow immigrant communities across the U.S. to safely access critical health care and public assistance during health crisis

NEW YORK, NY — Today, a Manhattan federal court issued two nationwide injunctions temporarily blocking the Trump administration’s “public charge” rules. An injunction issued against the U.S. Department of Homeland Security (DHS) prevents DHS from enforcing, applying, implementing, or treating as effective the “public charge” rule for any period during which there is a declared national health emergency in response to the COVID-19 outbreak. The ruling came after immigrant rights attorneys successfully argued that the COVID-19 pandemic has made the DHS public charge rule lethal to immigrant communities by chilling the use of health care and other benefits. The court also enjoined the U.S. State Department from applying its parallel “public charge” rules, including the president’s Health Care Proclamation, to applicants for visas at U.S. embassies and consulates abroad.

“Since the Trump administration announced the public charge rules, it has caused immense harm to our communities — harm that intensified, as our country is in the midst of a health crisis,” said Javier H. Valdés, Co-Executive Director at Make the Road New York. “The public charge rules by both DHS and DOS attacked our loved ones by imposing a racist wealth test on the immigration system, leaving working immigrants to choose between vital services or remaining together with their families. At Make the Road, we have seen the devastating effect this rule has on families scared to seek out healthcare and basic forms of assistance from food pantries and even their children’s schools. We applaud the court’s decision and will continue to fight to stop the Trump administration’s reckless and inhumane attacks on immigrants.”

In January, the U.S. Supreme Court stayed the same New York court’s October 2019 decision to block DHS’s “public charge” rule. As a result, DHS began enforcing the rule on February 24, 2020, just before the coronavirus outbreak became a nationwide pandemic. The new injunction against DHS was issued in response to a joint motion filed by lawyers from the Center for Constitutional Rights, The Legal Aid Society, and Paul, Weiss, Rifkind, Wharton & Garrison LLP, who joined New York State Attorney General Letitia James, representing the states of New York, Connecticut, and Vermont and the City of New York in arguing that immigrants should not be deterred from accessing health care and government benefits and services, especially during this unprecedented health crisis.

The second nationwide injunction was issued in a separate case challenging the State Department’s public charge rule as well as the president’s Health Care Proclamation requiring visa applicants to show proof of private health insurance. Because of the ruling, immigrants seeking to go through consular processing will not be subject to the public charge test utilized by the State Department. That case was brought on behalf of individual and organizational plaintiffs by the Center for Constitutional Rights, The Legal Aid Society, the National Immigration Law Center, and Paul Weiss. Today’s ruling is the first decision fully addressing these policies, and it enjoined those policies indefinitely.

In his decision today, Judge George B. Daniels wrote: “Much has significantly changed since January 27. Today, the world is in the throes of a devastating pandemic, triggered by the novel coronavirus SARS-CoV-2. In six months, approximately 16.5 million people around the globe have been afflicted by the disease caused by this virus. That disease (COVID-19) has claimed over 650,000 lives worldwide. In the United States alone, COVID-19 has spread rapidly, infecting over four million people. Close to 150,000 American residents have died. All of these staggering numbers continue to climb on a daily basis…. Thousands continue to die indiscriminately. Attempting to effectively combat this plague has immediately come in conflict with the federal government’s new ‘public charge’ policy, a policy which is intended to discourage immigrants from utilizing government benefits and penalizes them for receipt of financial and medical assistance.”

Susan Welber, staff attorney in the Civil Law Reform Unit at The Legal Aid Society, said: “Today’s decisions are a great victory for our plaintiffs and immigrant communities which have been disproportionately impacted by the public health and economic impacts of the pandemic. Immigrants, especially people serving as essential workers combating the spread of the coronavirus, need access to life-saving healthcare, food assistance, and other essential services in order to both tackle the pandemic and protect their families without fear of immigration consequences. The Court’s nationwide injunction against the Department of State public charge rule also protects immigrant families across the nation. We hope the court’s decisions sends a clear message to the government to withdraw these unlawful, racist, and anti-family rules, and that if they don’t, we will continue to fight them in court.”

Brittany Thomas, Bertha Justice Fellow with the Center for Constitutional Rights, said, “In times like this, today’s decisions signify great victories for the plaintiffs and immigrant communities, who can now access life-saving benefits without fear. The Court’s issuance of a nationwide injunction halting the public charge rule issued by the Department of State signifies a rejection of this administration’s radical position that they are above the law. We are pleased that the Court recognized the public charge rules as yet another attempt by this administration to undermine congressional authority and harm immigrant communities of color in the process. Today, immigrant communities throughout the entire country are protected and can focus on staying healthy and safe.”

Joanna E. Cuevas-Ingram, staff attorney at the National Immigration Law Center, said: “By implementing these regulations, the Trump administration has shown flagrant disregard for both the rule of law and community health in the middle of a pandemic. The Court’s decision recognizes that every member of our communities, including immigrants, must be able to access the tools they need to keep themselves healthy and safe. This is a great victory and we will not rest until these hateful, unlawful, and discriminatory regulations are gone for good.”

BACKGROUND

Make the Road New York v. Cuccinelli challenges changes to the public charge provisions implemented by the Department of Homeland Security and was filed by The Legal Aid Society, Center for Constitutional Rights, and Paul, Weiss, Rifkind, Wharton & Garrison LLP on behalf of Make the Road New York (MRNY), African Services Committee (ASC), Asian American Federation, Catholic Charities Community Services (CCCS), and Catholic Legal Immigration Network, Inc. (CLINIC).

Make the Road New York v. Pompeo challenges changes to the public charge provisions of the Department of State (DOS) Foreign Affairs Manual (FAM) and a DOS Interim Final Rule, which changed public charge regulations that affect immigrants who must undergo consular processing before entering the country. The Legal Aid Society, Center for Constitutional Rights, National Immigration Law Center, and Paul, Weiss, Rifkind, Wharton & Garrison LLP brought the case on behalf of Make the Road New York (MRNY), African Services Committee (ASC), Central American Refugee Center New York (CARECEN-NY), Catholic Legal Immigration Network, Inc. (CLINIC), Catholic Charities Community Services (CCCS), and individual plaintiffs.

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Source: Two Nationwide Injunctions Block “Public Charge” Rules Amid Pandemic

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BREAKING

DOL And DHS Interim Final Rules Halted By Court Order

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Supreme court of california main court house

As noted on Mondaq.com, written by Cheryl J. Gardner , Jason Burritt and Michelle Gergerian  of Seyfarth Shaw LLP

and on this direct link: https://www.mondaq.com/unitedstates/employee-rights-labour-relations/1012618/court-order-halts-dol-and-dhs-interim-final-rules

On December 1, 2020, a U.S. Federal District Court in California set aside the two Interim Final Rules announced in October by the U.S. Department of Labor (“DOL”) and the Department of Homeland Security (“DHS”).

The DOL rule, which took effect on October 8, 2020, significantly increased prevailing wage levels for H-1B, H-1B1 and E-3 programs and the permanent labor certification (PERM) program.

The DHS rule was scheduled to take effect on December 7, 2020 and would have placed further restrictions on the H-1B program, including in particular narrowing the definition of “specialty occupation.”

The Court Order, effective immediately, found that the agencies did not show good cause in bypassing the notice and comment period, required by the Administrative Procedures Act.

For more information, again here’s the direct link:  https://www.mondaq.com/unitedstates/employee-rights-labour-relations/1012618/court-order-halts-dol-and-dhs-interim-final-rules

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Federal appeals court overturns ban against immigration arrests at Massachusetts courthouses

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second asylum ban ends

A three-judge panel of the US Court of Appeals for the First Circuit Tuesday overturned a ban prohibiting US immigration authorities from arresting undocumented immigrants at courthouses in Massachusetts. In 2018, US Immigration and Customs Enforcement (ICE) formalized a policy of attempting to arrest undocumented immigrants when they appeared at state courthouses for judicial,

 

A three-judge panel of the US Court of Appeals for the First Circuit Tuesday overturned a ban prohibiting US immigration authorities from arresting undocumented immigrants at courthouses in Massachusetts.

In 2018, US Immigration and Customs Enforcement (ICE) formalized a policy of attempting to arrest undocumented immigrants when they appeared at state courthouses for judicial proceedings. Two Massachusetts district attorneys, the public defender’s office and a non-profit immigrant advocacy organization filed a lawsuit against ICE and asked for a preliminary injunction against the practice. They claimed that ICE was in violation of the Immigration and Nationality Act (INA) and lacked authority to make civil arrests at courts. The district court agreed, and granted an injunction last year.

At issue is a claim that the INA implicitly incorporates a common law privilege that protects those attending court from being subject to civil arrest. While nothing in the text of the INA prohibits these types of courthouse arrests, the plaintiffs argued that the law must be read in light of the nonderogation canon, a method of statutory construction that holds that courts must assume Congress is aware of long-standing common law principles and, absent express language to the contrary, intends to keep them.

Judge Bruce Selya wrote Tuesday that “the nonderogation canon does not give courts carte blanche to read a grab bag of common law rules into federal statutes simply to effectuate what those courts may perceive as good policy.” The circuit court held that the nonderogation canon applies if the facts of the common law rule and the statute in question are sufficiently analogous. The common law prohibited civil arrests at court by private litigants, while here the arrests are being carried out by a government agency. The panel vacated the preliminary injunction and remanded the matter back to the district court.

Rachael Rollins, district attorney for Suffolk County and one of the plaintiffs in the case, said in a statement that “this fight is far from over” and that the plaintiffs “are absolutely on the right side of justice here.”

The post Federal appeals court overturns ban against immigration arrests at Massachusetts courthouses appeared first on JURIST – News – Legal News & Commentary.

Source: Federal appeals court overturns ban against immigration arrests at Massachusetts courthouses

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Searching for Hope Among the Ruins of Our Asylum System

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IMMIGRATION REFORM NEWS ASYLUM IMMIGRANT CARAVAN

If you feel our asylum laws have been gutted, that our nation’s protections for those fleeing persecution and violence have been systematically dismantled, and that the administration is using the façade of health concerns during a pandemic to make it worse, you are not alone. You are not alone in your dread of the next,

If you feel our asylum laws have been gutted, that our nation’s protections for those fleeing persecution and violence have been systematically dismantled, and that the administration is using the façade of health concerns during a pandemic to make it worse, you are not alone.

You are not alone in your dread of the next case certified to the Attorney General, the next BIA published decision, the next proposed rule, the next executive order, the next policy change…and the ensuing scramble to understand how it impacts your clients who have been waiting in the backlog for months or years. You are not alone in feeling like you just can’t keep up with it all.

You are not alone in the justified outrage at how children and families have been treated by the administration. You are not alone in feeling ashamed by the way this country now treats those seeking protection at our borders.

You are not alone in feeling like every immigration court hearing is like pushing back against an ocean of injustice; there is no due process, no fundamental fairness for asylum seekers anymore.

You are not alone in sometimes, perhaps even often, feeling hopeless.

But, you are not alone. There are thousands of others working on these issues, fighting for what’s right. We are a regiment of seasoned asylum practitioners who know the ins and outs of this complex area of law and how to practice it effectively. We are the newcomers to asylum law who may feel uncertain but who know deep in our souls that fighting these battles is what we are called to do. We are the lawyers who take on pro bono asylum cases even when that requires preparing witnesses for their testimony while simultaneously entertaining our toddlers because our offices are now our dining room tables.

We are in this together, and that is what makes me feel inspired and determined, rather than hopeless.

Serving as chair of the upcoming AILA Virtual Asylum Conference and planning the program is one way that I’ve been reminded that we’re not alone, that we are part of a community of talented, passionate attorneys still fighting to keep asylum alive.  Join me as we lay out the sweeping policy changes to the U.S. asylum system and the ever higher hurdles for asylum seekers and their advocates that the administration has implemented. Join me as we work through where litigation and advocacy efforts to combat the administration’s changes stand. Join me in fighting for asylum seekers in this country (and supporting each other in those efforts!). I promise you that you will leave this virtual conference with a solid understanding of where things stand and what that means for your clients, as well as expert guidance on new strategies to employ at the border and in the immigration courts as we continue to fight for asylum seekers and the soul of our nation.

I know this is a tough fight to keep up. I know you feel tired. But we can lift each other up, help each other succeed, and save our clients’ lives.

Source: Searching for Hope Among the Ruins of Our Asylum System

Photo by Adam Smotkin on Unsplash

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