On September 9, 2022, Department of Homeland Security (DHS) issued the Final Rule on Public Charge Ground of Inadmissibility (Final Rule), which will become effective on December 23, 2022.[1] In the Final Rule, DHS acknowledges the chilling effects caused by the 2019 Public Charge rule that had deterred immigrant families from enrolling in healthcare and public benefits safety net programs. The Final Rule repeals the 2019 Public Charge rule and codifies the 1999 Field Guidance on Public Charge and provides more clarity on how immigration officials and consular officers will make public charge determination. The Final Rule applies only when an individual is seeking admission as an immigrant,[2] or applying for adjustment of status[3] to become a lawful permanent resident. Public charge evaluation is not relevant in green card renewal or at naturalization.

Which benefits are included in public charge determination?

One critical aspect of the Final Rule is that it defines “likely at any time to become a public charge” to mean “primarily dependent on government for subsistence,”[4] as demonstrated by the receipt of two categories of public benefits below listed:

  • cash assistance of the following types:[5]
    • Supplemental Security Income (SSI),[6]
    • Temporary Aid to Needy Families (TANF),[7] and
    • state, local, and tribal cash assistance programs, (Texas does not have a state cash assistance program), and/or
  • Medicaid to cover long-term institutionalization.[8]

“Primary dependence” connotes significant reliance on government for support that is something more than merely transient or supplementary.

A bright-line definition of “receipt”

The Final Rule also clarifies that receipt of such benefits is relevant for public charge determination only if the individual seeking an immigrant visa/lawful permanent residency is the beneficiary of the cash benefits or Medicaid-paid long-term institutionalization. The Final Rule makes clear that the following circumstances do not constitute “receipt”[9]:

  • Receipt of benefits solely for others, including their children and household members;[10]
  • Approval for future receipt of benefits even for the individual applying for lawful permanent residency; or
  • Application for benefits for oneself or on behalf of another.

Long-term institutionalization does not include (1) imprisonment, or institutionalization for short periods for rehabilitation.[11]

The Final Rule makes clear that the receipt of other government assistance such as the following does not factor into the public charge determination[12]:

  • Supplemental Nutrition Assistance Program (SNAP) or other nutrition programs,
  • Children’s Health Insurance Program (CHIP),
  • Medicaid (other than for long-term use of institution services under section 1905(a) of the Social Security Act),
  • Housing benefits
  • Any benefits related to immunizations or testing for communicable disease, or
  • Other supplemental or special-purpose benefits.

In the public notice, DHS also clarifies that Earned Income Tax Credit and Child Tax Credit will not factor into a public charge determination.[13]

The Final Rule defines “government” to mean “Federal, State, Tribal, territorial, or local government entity or entities of the United States.”[14] It does not include any non-governmental entities that may be administering federal funds as pass-through entities.

Totality of Circumstances test

The Final Rule establishes five minimum statutory factors[15] that immigration officials and consular officers must consider in applying the “totality of circumstances”[16] evaluation of whether an individual is likely to become a “public charge”:

  • Age
  • Health
  • Family status
  • Assets, resources, and financial status
  • Education and skills

The Final Rule makes clear that DHS in making a public charge determination will favorably consider an Affidavit of Support, when required, that meets the statutory standard.[17] It also makes clear that one’s past or present receipt of public benefits along is not conclusive that one will become a public charge. DHS will instead consider (1) the amount, (2) the duration of receipt, and (3) recency of such receipt in its public charge evaluation. The final rule also makes clear that an individual’s disability is not alone a sufficient basis to determine whether one is likely to become a public charge. In evaluating one’s use of long-term institutionalization, DHS may not violate the Americans with Disability Act or the Rehabilitative Act.[18] Any DHS finding that one is likely to become a public charge must be done in writing that articulates the reason(s) of the finding and explicitly states how the official applies the statutory factors.[19]

The Final Rule also provides a detailed list of individuals who are exempt[20] from the public charge consideration, these include, among others, refugees, asylees, Afghan and Iraqi Interpreters, Cuban and Haitian entrants, Nicaraguans and Central Americans applying for adjustment of status under NACARA, Haitians applying for adjustment under Haitian Refugee Immigration Fairness Act, Lautenberg parolees, Special Immigrant Juveniles, individuals eligible for Registry under INA Section 249, individuals applying for or reregistering for Temporary Protected Status, applicants and recipients of U and T visa. In cases where individuals receive public benefits while in exempt status, the Final Rule also makes clear that DHS will not consider benefits received by the individual during the exempt period or for which the individual received a waiver.[21] In cases where DHS determine that an individual is likely to become a public charge, the Final Rule provides the procedures for USCIS or the consular officers to accept a public charge bond and procedures for cancelling such bond.[22]

Conclusion

The Final Rule provides the much-needed clarity to how DHS makes public charge determination. It is, however, important to note that the public charge rule does not change the underlying eligibility for federal means-tested public benefits program. Very few individuals without immigration status unless grandfathered under the Personal Responsibility and Work Opportunity Reconciliation Act[23] are eligible for federal benefits since 1996. The ultimate solution to achieving income and health equity in immigrant households is to recognize immigrants’ significant contribution to this country and completely repeal the public charge rule that has been in existence since the 1880s.

~ Written by Zenobia Lai, Executive Director

[1] 87 Fed. Reg. 55472 (Sept. 9, 2022).

[2] Immigration and Nationality Act (INA), Sec. 235, 8 U.S.C. Sec. 1255.

[3] INA Sec. 245, 8 U.S.C. Sec. 1255.

[4] 8 C.F.R. Sec. 212.21(a).

[5] 8 C.F.R. Sec. 212.21(b).

[6] 42 U.S.C. Sec. 1381, et seq.

[7] 42 U.S.C. Sec. 601, et seq.

[8] 8 C.F.R. Sec. 212.21(c).

[9] 8 C.F.R. Sec. 212.21(d).

[10] Household includes (1) the alien; (2) the alien’s spouse, if physically residing with the alien; (3) if physically residing with the alien, the alien’s parents, the alien’s unmarried siblings under 21 years of age, and the alien’s children as defined in section (101)(b)(1) of the Act; (4) any other individuals (including a spouse or child as defined in section 101(b)(1) of the Act not physically residing with the alien) who are listed as dependents on the alien’s federal income tax return; and (5) any other individual(s) who list the alien as a dependent on their federal income tax return. 8 C.F.R. Sec. 212.21(f).

[11] 8 C.F.R. Sec. 212.21(c).

[12] 8 C.F.R Sec. 212.22 (a)(3).

[13] 87 Fed. Reg. at 55526.

[14] 8 C.F.R. 212,21(e).

[15] 8 C.F.R Sec. 212.22(a).

[16] 8 C.F.R. Sec. 212.22(b).

[17] 8 C.F.R. Sec. 212.22(a)(2).

[18] 8 C.F.R. Sec. 212.22 (a)(3), (4).

[19] 8 C.F.R. Sec. 212.22 (c).

[20] 8 C.F.R. Sec. 212.23 (a).

[21] 8 C.F.R. Sec. 212.22(d), (e).

[22] 8 C.F.R. Sec. 103.6(c)(1), 8 C.F.R. Sec. 213.1.

[23] Public Law 104-193, tit. IV, 8 U.S.C. Sec. 1601-1646.

Texas is the capital of the uninsured.[1]

  • In 2020, around five million Texans lacked health insurance.
  • 3% of Texans were uninsured,[2] almost doubled the national average of 8.7%.
  • 27 out of Texas’ 36 Congressional districts were at the bottom 10% of insurance coverage.
  • The district that had the highest uninured rate in the nation – 31% of the residents were without insurance – was in Harris County.

Texas is one of twelve states that did not expand Medicaid eligibility to cover individuals whose income is between 100% and 138% of the Federal Poverty Guideline.[3] Studies have shown that those who are uninsured are also most likely have low income. Latinos are nearly three times more likely to be uninsured than Whites in Texas.[4] Non-citizens who made up more than 30% of the people without health insurance in Texas are three times as likely to be uninsured as natives. More than 45% of unauthorized immigrants went without insurance in 2018, compared to 10% of U.S. natives and 23% of those with lawful immigration status.[5]

For more than a quarter century, low-income non-citizens, with few exception,[6] who have insufficient work history in the U.S. are not eligible for Medicaid and other federal benefits. Immigrants must navigate a patchwork of healthcare that is often confusing and costly. Family separation, public charge regulation, and mass expulsion during the last administration created additional and lasting chilling effects that discourage immigrants from accessing healthcare. Immigration status is a social determinant of health: being an immigrant limits behavioral choices that “directly impacts and significantly alters the effects of other social positioning, such as race/ethnicity, gender, or socioeconomic status, because it places individuals in ambiguous and often hostile relationships to the state and its institutions, including health services.”[7] Immigration status not only affects the immigrants, but it also impacts the health of their children even though the children are U.S. Citizens. This is evident when parents disenrolled their children from Medicaid and food assistance programs when the now repealed public charge regulation surfaced.[8]

The latest Supreme Court decision in Dobbs v. Jackson Women’s Health further complicates immigrant women’s already constrained access to reproductive health services. National data show that overall, Black, Hispanic, American Indian and Alaska Native, and Native Hawaiian and Other Pacific Islander women of reproductive age are more likely to be uninsured or relied on Medicaid for healthcare coverage. They have more limited access to health care, which affects their access to other reproductive health services, such as contraception and other sexual health services, as well as maternal and infant health. The long history of racist healthcare practices targeting sexual and reproductive practices of women of color, and discriminatory practices of healthcare providers, together with stereotypes, assumptions, inattention, and dismissive attitudes have led to mistrust, lower and delayed healthcare usage among women of color. Delayed or lack of prenatal care has meant that people of color are more likely to experience certain birth risks and adverse birth outcomes such as preterm, low birth weight, higher risk of dying for pregnancy-related reasons or infant mortality.[9] Among women of the 18-49 age group, 35% Asian women, 27% Hispanic women, and 20% Native Hawaiian and Pacific Islanders are noncitizens. Many who are citizens live in mixed immigration status households, travelling out of state to access abortion may risk adverse criminal and immigration consequences. In addition, low-income immigrant women, documented or unauthorized, must overcome barriers such as financial, transportation, childcare, work schedule, education, English proficiency, and internet access in making healthcare decisions.[10]

Women made up about half of all immigrants, 95% of them are of childbearing age.[11] As advocates for immigrant rights, we must recognize the intersectionality of immigrant justice with economic justice and reproductive justice. In passing Violence Against Women Act and creating waiver from joint petition for victims of domestic violence, Congress had recognized the connection between immigrant justice and reproductive justice and passed laws to protect immigrant victims of domestic violence to break the power and control wielded by the citizen spouse and abuser who hold the power to confer immigration status to the immigrant spouse. Reproductive justice is not just about the right to end a pregnancy, it includes the right to control one’s reproductive future, the right to decide when or whether to have a family, the right to have a healthy pregnancy, and the right to have safe and healthy families and relationships. Reproductive justice is a crucial scaffolding to social justice. Our immigration system is replete with measures to control immigrants’ reproductive freedom. In 1875, Congress passed the Page Act to limit the immigration of Chinese women, which together with anti-miscegenation laws and laws barring the immigration of Asians, removed Chinese immigrants’ ability to form or reunite with families. The continued practice of separating immigrant families on the border by splitting spouses into different detentions, removing children from fathers or other guardians, detaining part of a family unit continues to assault the sanctity of immigrant families and disparage their family values. Attempts in population control and social engineering by the eugenics movement led to fanatical “selective breeding” resulting in the sterilization following childbirth of thousands of Latinas, especially those of Puerto Rican and Mexican descent, without their knowledge or fully informed consent.[12] The 1996 federal welfare reform limiting recent immigrants’ access to Medicaid creates additional barriers to immigrant women’s access to reproductive health. Reports of forced hysterectomy and other gynecological procedures in the Irwin County ICE detention in Georgia are the latest examples of infringement of immigrant women’s reproductive rights as a means of control and deterrent.[13] Anti-immigrant zealots’ use terms such as “anchor babies” and out-of-wedlock birth rate among immigrant women (which is roughly equivalent to that of citizen women) to argue for restrictive immigration are examples of how immigration debate denigrates immigrants’ reproductive justice.

Health is a fundamental human right enshrined in the Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights. Reproductive justice is a crucial component of health justice, which we cannot achieve if reproductive justice is not on the agenda.

The draconian public charge regulation of the last administration and the corresponding chilling effects in the immigrant community spurred HILSC to launch the Connect for Healthcare project to improve immigrants’ access to healthcare and ultimately to health. By adopting a multidisciplinary approach, we build a network comprising providers in benefits enrollment, organizing and advocacy, legal services, and healthcare to create a “no wrong door” web where we leverage our relationship in the immigrant community and our diverse expertise to improve the immigrant community’s access to healthcare. We also partner with Children Defense Fund of Texas and Every Texan to launch the “Thawing the Chilling Effects” campaign to dispel rumors and misinformation about “public charge” and to provide resources to facilitate the immigrant community’s access to life-sustaining safety net programs such as food and shelter. For more information, check out our new webpage on Connect for Healthcare.

~ Written by Zenobia T. Lai

[1] Michael Macagnone, Texas lags nation in health insurance coverage rate in census data, Roll Call, (Mar. 17, 2022), https://rollcall.com/2022/03/17/texas-lags-nation-in-health-insurance-coverage-rate-in-census-data/.

[2] A 2019 estimate placed Texas at the top of uninsured state at 24.5%, four percent higher than the next state with high uninsured population, and the Texas uninsured rate was almost twice the national average of 12.9% at the time. https://www.texmed.org/Template.aspx?id=5519.

[3] According to the 2022 Federal Poverty Guideline, an individual whose annual income is less than $13,590 is officially poor. At 138% of poverty guideline, it translates to $18,754 for one person and $38,295 for a family of four. https://aspe.hhs.gov/topics/poverty-economic-mobility/poverty-guidelines.

[4] https://www.texmed.org/Template.aspx?id=5519.

[5] Health Insurance Coverage Among Special Populations in Texas (Texas Medicine) https://www.texmed.org/uninsured_in_texas/#:~:text=to%20Uninsured%20Population-,Non%2Dcitizens%20are%20almost%20three%20times%20as%20likely%20to%20be,the%20uninsured%20are%20non%2Dcitizens. See also, Sean Price, Texas’ High Rate of Uninsured Hurting the Economy, Study Says, Texas Medicine, (Oct. 30, 2019), https://www.texmed.org/TexasMedicineDetail.aspx?id=49562.

[6] Refugees, asylees, victims of domestic violence or human trafficking, certain parolees, individuals granted withholding, conditional entry, Haitian/Cuban Entrants, Amerasians are exempt under the 1996 federal welfare reform.

[7] Heide Castaneda, et al, Immigration as a Social Determinant of Health, 36 Annual Review of Public Health 375, 378 (March 2015), https://www.annualreviews.org/doi/pdf/10.1146/annurev-publhealth-032013-182419.

[8] Cheasty Anderson, Public Charge and Private Dilemmas: Key Challenges and Best Practices for Fighting the Chilling Effect in Texas, 2017-2019, Children’s Defense Fund – Texas (2020), https://cdftexas.org/wp-content/uploads/sites/8/2021/01/Public-Charge-and-Private-Dilemmas_report_020.pdf.

[9] Amanda Jean Stevenson, The Pregnancy-Related Mortality Impact of a Total Abortion Ban in the United States: A Research Note on Increased Deaths Due to Remaining Pregnant, 58 Demography, 2019-2028 (Oct. 25, 2021), https://read.dukeupress.edu/demography/article/58/6/2019/265968/The-Pregnancy-Related-Mortality-Impact-of-a-Total.

[10] Samantha Artiga, et al., What are the implications of the Overturning of Roe v. Wade for Racial Disparities? Kaiser Family Foundation, (July 15, 2022), https://www.kff.org/racial-equity-and-health-policy/issue-brief/what-are-the-implications-of-the-overturning-of-roe-v-wade-for-racial-disparities/.

[11] Fact sheet: Immigration Policy and Reproductive Justice, American Progress (Jul 10, 2007), https://www.americanprogress.org/article/fact-sheet-immigration-policy-and-reproductive-justice/.

[12] Julissa Arce, The Long History of Sterilization, UNISOS US Blog, https://www.unidosus.org/blog/2021/12/16/the-long-history-of-forced-sterilization-of-latinas/.

[13] Victoria Bekiempis, More immigrant women say they were abused by ICE gynecologist, The Guardian (Dec. 22, 2020), https://www.theguardian.com/us-news/2020/dec/22/ice-gynecologist-hysterectomies-georgia.

Reproductive justice is not all lost in the Post-Roe world, here are some resources:

  1. Uninsured, undocumented, or in limbo immigration status (e.g. DACA, TPS)? You have healthcare options.
  2. Need reproductive health resources? Consider mutual aid efforts: Many mutual aid funds are still in operation to support women who need access to an abortion. Some are on “pause” to assess what is allowed without threat of legal repercussion (see Houston Chronicle article).
    •  Mutual aid fund still in operation:
    • Mutual aid funds on pause:
      • Frontera Fund
      • Lilith FundIf you live in Texas and would like to talk to Lilith Fund to discuss your pregnancy options, please call 1.877.659.4304 on Monday, Wednesday, or Friday between 7am-10am CST and leave a message. A member of the team will call you back. 
  3. Remember, reproductive justice is health justice, not one less. Here are organizations working on reproductive justice in Texas:
  4. Information is power. Learn more about the recent Supreme Court decision and its impact on our work. 

Reflections on a Historical Supreme Court Term

What can one say about the SCOTUS Term 2021-2022? Yes, the U.S. Supreme Court in Biden v. Texas did find that the Biden Administration has authority to end the “Remain in Mexico” policy, a program that forced asylum seekers to live in squalid and dangerous conditions across the border as they awaited adjudication of their applications. However, this victory does not mitigate the harm and suffering of the 71,000 people who were put through that program and no date has been set for its termination as of this writing.

Prior to issuing the “Remain in Mexico” decision on the last possible day of the term, the Court issued a string of decisions depriving fundamental rights of individuals and diluting safeguards against overzealous criminal prosecution and immigration enforcement. At the same time, this Court also cinched the ability of state and federal government in regulating public safety, global warming, and corruption.

For the first time in U.S. history, the U.S. Supreme Court stripped away a longstanding fundamental right of the people. In reversing Roe v. Wade and vesting abortion decisions in state legislatures, the Court in Dobbs v. Jackson Women’s Health Organization robs individuals of their fundamental right to have autonomy over their body and to make decisions about forming families. The Court found support for this decision by referencing state laws criminalizing abortion dating back to 1828, undoing two centuries of advancements in civil liberties. The immediate impact of the Dobbs decision is that 13 states with “trigger ban” laws will proceed to ban abortion with another slate of states preparing to follow suit, leaving only 20 states that will maintain access to reproductive services. This decision will cause enormous harm to women of color, immigrant women and low-income women who already have limited access to basic healthcare. In a companion article, we outline some of the reproductive health resources that are still available despite Dobbs.

However, Dobbs is really not about abortion or morality or traditions. In Dobbs, the SCOTUS majority tossed away the fundamental judicial doctrine of stare decisis, opening up for legal challenge all settled precedents establishing fundamental rights. Justice Clarence Thomas made clear his intent of revisiting, likely reversing, other decades-old decisions establishing fundamental rights of privacy legalizing contraception, consensual sex among adults and same sex marriage should any such case come before the Court, though he curiously left out interracial marriage in his grand rights reversal scheme. Dobbs’s intent of returning abortion decision-making to state legislatures elected by the people is particularly disingenuous when this same court failed to protect voting rights, allowed rabid gerrymandering, and other state actions that decimate the voting rights of people of color.

Weeks after the catastrophic ruling by the Supreme Court in Dobbs, we continue to wonder what direction our courts, healthcare system and elected government will take next. While our federal government and healthcare systems remain gridlocked, the conservative supermajority of the Supreme Court continued its rightward shift that it has prepared for in the past half century. Discarding the incrementalism and guiding principle of stare decisis, the conservative justices moved quickly to strip down civil liberties outside of reproductive health and remove restraints on law enforcement while paradoxically weakening the government’s ability to enact regulation protecting its citizens.

The Expansion of Unaccountable Government Power

From accusation of a crime to detention on death row, the court enfeebled many protections and limitations on government power in criminal law, even to the extent of infringing on the sovereignty of native people. Oklahoma v. Castro-Huerta dealt a blow to tribal sovereignty, allowing state law enforcement to prosecute crimes on reservations, potentially causing massive disruption to Indian country criminal justice. Other cases removed deterrents to law enforcement agents. Egbert v. Boule made it much more difficult to sue federal officers engaging in misconduct while Vega v. Tekoh held that those with their Miranda rights violated could not seek civil damages against its violators.

The Hollowing Out of Habeas Relief

In Shoop v. Twyford, Brown v. Davenport and Shinn v. Martinez Ramirez, the Court instituted more hurdles for criminal defendants to obtain habeas relief in federal court. Raising deference to state sovereignty “to enforce social norms through criminal law,” and zeroing in on inmate’s failure to exhaust remedies in state court pre-conviction, the SCOTUS majority ruled to significantly narrow habeas relief for fear that its use would allow the guilty to go free. This conclusion fundamentally contradicts the intent of habeas corpus, which is to ensure that no one is convicted or executed in violation of the Constitution.

All these cases served to hollow out constitutional rights by sharply reducing the avenues in which victims of an overzealous criminal justice apparatus can seek relief from unjust punishment. Immigrants did not escape the impacts of this march to narrow availability of habeas corpus. In two companion cases, Garland v. Aleman Gonzalez and Johnson v. Arteaga-Martinez, the SCOTUS majority found that the immigration statute in question does not require the government to hold bond hearings, effectively permitting indefinite detention of individuals caught in removal proceedings. As in the criminal law realm, the conservative court worked diligently to weaken rights and protections. With cases such as affirmative action coming up in the next session, the outlook for further undermining of these protections looks bleak. Though the Court strongly supported government power in the realm of law and order, it weakened its ability to protect the community through regulation.

Weakening Protections and Rights for the Community

The conservative push by the Court weakened the government’s ability to pass regulations protecting public safety and stemming the tide of climate change. In New York State Rifle & Pistol Association Inc. v. Bruen, the Court struck down a 100-year-old New York statute requiring applicants for gun licenses to show special need. In West Virginia v. EPA, the Court removed the federal agency’s ability to regulate emissions, defanging our ability to stem global warming at a time when tens of thousands of migrants were forced to abandon their homes to come to the U.S. because of destitution and famine caused by climate change. This pair of decisions together with FEC v. Ted Cruz, in which the Court agreed politicians could use campaign funds to repay themselves, weaken the ability of government to regulate against harm and to protect the integrity of our democracy against corruption in politics.

A Portentous Supreme Court Term

It is too depressing to recount all the decisions of this SCOTUS term that divested fundamental rights, emboldened government bullies, narrowed Constitutional protections, and trampled on the vulnerable. Those who work with marginalized communities know what unaccountable government force can exact on human dignity. Immigrants have faced it with indefinite imprisonment without due process and many minority communities have horror stories of abuse by law enforcement and prosecutors with no recourse.

The conservative supermajority in the Supreme Court has loudly trumpeted their aims to continue whittling down constitutional protections or outright annihilating them. This trend promises a more inhospitable America for everyone. Today we see minorities and undocumented immigrants greatly affected by these decisions, but as the Dobbs decision showed, the ramifications of these decisions will continue expanding outward to disrupt the lives of people who never expected to have their liberties curtailed.

Like the current pandemic, this court term also laid bare the failures of a healthcare system that does little to nothing for marginalized communities. Groups such as immigrants have little to no access to healthcare due to the quarter-century-old welfare reform that predicated eligibility for healthcare on having the right kind of immigration status and lengthy work history in the U.S. Though many advocates and organizations have and continue to step in to help victims of the damage wrought by disastrous policies and jurisprudence, work remains to provide a lifeline to those in need while working towards systemic change that remains the only answer to achieve true equality in America. Organizing, advocacy, civic participation and legal challenges remain our strongest defense against the relentless rightward march toward decimating fundamental human rights and civil liberties.

~ Written by Zenobia Lai and Chris Dupree

On June 15, 2012, President Obama authorized Deferred Action for Childhood Arrivals (DACA) to provide deportation reprieve for the nation’s estimated 1.9 million young people who came to the United States as children. To be eligible, individuals must have come to the United States before their sixteenth birthday and have resided in the United States since June 15, 2007, were under age 31 as of June 15, 2012, are in school, have graduated or obtained a GED, or honorably discharged from the Coast Guard or Armed Forces of the United States, have no immigration status, and pass a background check. With DACA, these individuals can work, drive, go to school, and live in the U.S. legally.

DACA was a response to Congress’ inability to pass legislation to create a pathway to citizenship for this population, who came to be known as DREAMers. More than twenty-one years ago, on April 25, 2001, Representative Luis Gutierrez (D-IL) introduced the first bill, Immigrant Children’s Education Advancement and Dropout Prevention Act of 2001, to create such pathway to permanent immigration status. A more well-known bill called Development, Relief, and Education for Alien Minors Act of 2001 was introduced by Senators Dick Durbin and Orin Hatch on August 1, 2001, which came to be called the DREAM Act. Two subsequent comprehensive immigration reform bills in 2006 and 2007 included the Dream Act, but neither passed. The closest we got to passing the Dream Act was in 2010, which passed the House, but failed in the Senate because of filibuster. The spring of 2013 gave a fleeting hope that the passage of the DREAM Act and comprehensive immigration reform could become a reality with the bipartisan Gang of Eight declared that 2013 was the “Year of Immigration Reform.”[1] Nothing came of it. Elected officials in Congress continue to use the fate of DREAMers and the other 10 million unauthorized immigrants to bargain for more border security and more immigration enforcement when the budget for immigration enforcement has already more than quadrupled to nearly $5 billion dollars over the past two decades.[2] The latest attempt in the DREAM Act (American Dream and Promise Act of 2021, H.R. 6), which passed the House in March of 2021, continues to languish.

A decade since President Obama introduced DACA, around 611,000 individuals were active DACA recipients as of December 31, 2021. U.S.C.I.S. approved a total of 835,097 DACA applications since the launch of the program on August 15, 2012.[3] The data suggest that nearly 225,000 DACA recipients either did not renew their status and became undocumented or found alternative pathways to immigration protection. Texas has the second largest population of DACA recipients, at 101,350, second only to California’s 174,680. There are 31,370 active DACA recipients in Greater Houston, the fourth largest DACA population by metropolitan areas after Los Angeles, New York, and Dallas-Fort Worth. The median age of DACA recipients is twenty-seven years old. The oldest among them are just shy of forty-one years old and who have lived in the U.S. for at least twenty-five years. The youngest among the DACA recipients are sixteen years old and they would have been living in the U.S. since they were one year old or younger. On average, DACA recipients arrived in the U.S in 1999 at the age of seven; more than one-third arrived in the U.S. before the age of five. The DACA recipients are individuals who have grown up in the United States, who have received their education here, and who have lived and worked in our community.

Since the launch of DACA a decade ago, there were lawsuits challenging its legality and attempts to terminate it. President Trump attempted to terminate the DACA program in September of 2017, giving only a 30-day window for a small group of eligible DACA recipients to renew their status and completely blocked new DACA applications, leaving tens of thousands of individuals who aged into or become eligible for the program unable to pursue the protection. Ensuing litigation enjoining the termination, which was affirmed by the U.S. Supreme Court in June of 2020 allowed many DACA recipients to renew their immigration protection, but U.S.C.I.S. did not resume accepting new initial application until early December of 2020. New applications came to an abrupt stop when Judge Hanen of the Southern District of Texas ruled that DACA is unlawful but allows it to continue for current recipients. The case is on appeal with oral argument scheduled for July 5, 2021, in the Fifth Circuit. As a result of the July 2021 ruling, young people who turned fifteen and those who fulfilled the educational requirements since December 2020 but whose DACA applications were not adjudicated as of July 16, 2021, do not have DACA protection. In fact, more than 91,000 initial DACA applications were pending with U.S.C.I.S. as of December 31, 2021[4], and they are not likely to be approved any time soon. The Department of Homeland Security (DHS) issued proposed rule to formalize the existing process for DACA last September, but DHS has yet to finalize the rule.

Ten years since DACA came into existence, hundreds of thousands of individuals who are active DACA recipients continue to have to live life two years at a time, uncertain about potential path to permanent immigration status, and constantly having to worry about being immigration enforcement targets should DACA end. More than 1.3 million people live with a DACA recipient, who are raising 300,000 U.S.-born children. A 2021 survey shows that more than three-quarters of DACA recipients in the workforce – 343,000 people – are essential workers in healthcare, education and food supply chain helping to keep the country running and safe at great personal risk during the Pandemic. They contributed $9.4 billion dollars in state and federal tax and constituted an economic engine of $25.3 billion dollars in spending power.

A generation since Representative Gutierrez introduced the first DREAM Act in Congress in 2001, ten years since we slapped together the DACA program as a band-aid solution, DREAMers have aged from being elementary school pupils to having elementary-school-age children of their own. They have, on average, lived 23 years in the U.S., well above the duration of conditional residency in any proposed DREAM Acts. A humane immigration system values the community ties and economic contributions of our long-term residents. It is past time that Congress acts to provide a pathway to citizenship for DREAMers.

~ By Zenobia Lai

[1] Liz Halloran, Gang of 8 Champion Plan, Declare ‘Year of Immigration Reform’,” (NPR, April 18. 2013), https://www.npr.org/sections/itsallpolitics/2013/04/18/177780665/bipartisan-senate-gang-prepares-to-sell-immigration-plan.

[2] The Cost of Immigration Enforcement and Border Security (American Immigration Council, Jan. 20, 2021), https://www.americanimmigrationcouncil.org/research/the-cost-of-immigration-enforcement-and-border-security.

[3] Number of Form I-821D, Consideration of Deferred Action for Childhood Arrivals Requests by Intake and Case Status, by Fiscal year August 15, 2021 – December 31, 2021, https://www.uscis.gov/sites/default/files/document/reports/DACA_performancedata_fy2022_qtr1.pdf.

[4] Count of Active DACA Recipients By Month of Current DACA Expiration As of December 31, 2022, https://www.uscis.gov/sites/default/files/document/reports/Active_DACA_Recipients_December_31_2021.pdf.

Every May, we celebrate the history and heritage of Asian Americans, Native Hawaiians, and Pacific Islanders in the United States. There are more than 25.6 million Asian Americans, Native Hawaiians, and Pacific islanders in the United States (24 million Asian Americans and 1.6 million Native Hawaiians and Pacific Islanders). Asian Americans, Native Hawaiians, and Pacific Islanders (AANHPI) encompass more than 50 ethnic groups that trace their lineage from more than 40 countries. As a group, AANHPI is the fastest-growing racial group in the United States. Their skin color ranges from fair to brown hues. They are U.S. Citizens, Lawful Permanent Residents, U.S. National, undocumented, and non-immigrant visitors. They are straight, gay, queer, bisexual, trans and nonbinary. Just who are Asian Americans and who are Pacific Islanders? How did they become part of the American mosaic and how have they shaped American jurisprudence and immigration law? Native Hawaiians are, by definition, natives of Hawaiʻi, and how did they become part of America?

There are no Asians in Asia. There are people with national identities in Asia. It is only in America where the diverse Asian ethnicities become Asian Americans, a pan ethnicity out of necessity and rooted in their collective struggle against racism and racist immigration policies. Most, if not all, Americans of Asian descent trace their American origin to that forebear who immigrated to the United States, as laborers who built the transcontinental railroad, as foreign students, as farm workers, as miners, as fishermen, as entrepreneurs, as gardeners, as refugee, as scholars…. Because of restrictive and racist immigration policies, more than one hundred and seventy years since the first group of Chinese immigrated to the United States (Filipinos Americans established their first recorded North American settlement in St. Malo, Louisiana in 1763, Filipino sailors had been coming to Morro Bay in California as early as 1587), sixty percent of Asian Americans are still immigrants. Nearly one in three individuals immigrated to the United States is from an Asian country.

Native Hawaiians and Pacific Islanders, on the other hand, are natives to their land, which was acquired by the United States as spoils of wars or conquests. The legacy of settler colonialism and imperialism partly explains the incorporation of Native Hawaiians and Pacific Islanders in this nation’s demographics.

Hawaiʻi was an independent sovereign kingdom until it was overthrown in a coup d’état led by Sanford Ballard Dole, a sugar planter born to American parents, on January 17, 1893 with the tacit support of the U.S. government. The end of the Spanish-American War provided the McKinley Administration a pretext to annex Hawaiʻi. Through the Hawaiian Organic Act, U.S. annexed Hawaiʻi on April 30, 1900. Chinese then residing in Hawaiʻi could obtain certificates of residence one year after the enactment of the Hawaiian Organic Act, but they would be prohibited from entering the U.S. mainland from Hawaiʻi even with these certificates of residences due to the Chinese Exclusion Acts.[1] Hawaiʻi became the fiftieth state in 1959 by act of Congress ratified by 94% of voters who voted in a plebiscite in Hawaiʻi. Native Hawaiians became United States Citizens under the Hawaiian Organic Act, which has also been codified in the Immigration and Nationality Act.[2]

Puerto Rico, Guam, Cuba, and the Philippines became American possessions after Spain lost the Spanish-American War in 1898. Cuba became an independent country under the Treaty of Paris that ended the Spanish-American War. The United States bought the Philippines from Spain, and it remained a U.S. territory for almost fifty years until it gained independence in 1946. The U.S. colonization of the Philippines rendered Filipinos U.S. Nationals with no right to citizenship. As U.S. Nationals, Filipinos were exempt from immigration laws that barred Asians from immigrating to the U.S. The Asian ban was completed when Congress passed the Tydings-McDuffie Act in 1934, under the guise of granting independence to the Philippines in ten years,[3] reclassified Filipinos as “aliens,”[4] thus subjecting them to the Asian bar, prohibited them from migrating to the mainland from Hawaiʻi[5] and drastically reducing Filipino migration to fifty persons per year,[6] essentially ended Filipino immigration. Many Filipino men came to the U.S. to work on Hawaiian plantations, Californian farmland, and Alaskan fisheries and canning industries as sojourners, leaving behind wives and children, planning to one day return to the Philippines. In the end, eighty percent of them remained in the United States. Stripped of their status as U.S. Nationals under the 1934 law and ineligible to become U.S. Citizens under Asian exclusion laws, Filipino Americans endured decades of family separation until the 1965 immigration reform allowing them to petition for family members to immigrate to the United States. Those who served in the military were given the option to become U.S. Citizens. Under the current quota system with visa caps on country and immigration categories, Filipinos continue to endure decades of family separation as the immigration backlog continues to grow.[7]

Guam and Puerto Rico remained U.S territories 124 years since the end of the Spanish-American War. Pursuant to the Insular Cases,[8] residents of unincorporated territories and insular possessions of the United States, such as Guam, Puerto Rico, and the Philippines, were ineligible for U.S citizenship. The Jones-Shafroth Act[9] that was signed into law on March 2, 1917, gave U.S. citizenship to Puerto Ricans.[10] This was codified into law as part of the Immigration and Nationality Act.[11] Between 1967 and 2020, Puerto Rico has held six referenda on statehood. Despite a majority of voters favoring statehood, Congress has yet to act to make it a reality. The Organic Act of Guam[12] that was signed into law on August 1, 1950, conferred American citizenship to all persons residing in Guam at the time of its enactment, thus ended a half-century quest for U.S. citizenship by its native Chamorros. It also identified Guam as an Unincorporated Territory of the United States to be overseen by the Department of the Interior. As a U.S. territory, people of Guam are represented by one non-voting delegate in Congress. Since 1998, the island has undertaken several plebiscites on decolonization. The latest one that took place in 2016 opened solely to Chamorro native people of Guam was struck down by a federal court for being racially discriminatory.

The other “Pacific Islands” include the Commonwealth of the Northern Mariana Islands that is an unincorporated territory with Commonwealth status, and several unincorporated and unorganized[13] territories such as American Samoa, Baker Island, Howland Island, Wake Island, Midway Atoll, Johnson Stoll, Kingman Reef, Jarvis Island and Navassa Island.

American Samoa lies in South Pacific halfway between Hawaiʻi and New Zealand. The Tripartite Convention of 1899 settled the international rivalries concerning the Samoa Islands and partitioned the islands into two: the eastern island group became a U.S. territory, known today as American Samoa, the western cluster became possession of Germany. Formal annexation by the U.S. took place in 1900 by Deed of Cession. The matai (local chiefs) of Tutuila, the largest island in American Samoa, ceded the island to the United States in 1900. Manu’a followed in 1904. Swain Island joined the territory in 1925 by an act of the Congress. The U.S. Navy administered the American Samoa until 1950 before turning it over to the Department of the Interior. People born in American Samoa are nationals but not citizens of the United States at birth.[14] American Samoans can apply for citizenship through naturalization three months after they move to the mainland of the United States. A group of American Samoans sued the federal government for birthright citizenship in 2012. In Tuaua v. United States, the federal court affirmed that the Citizenship Clause of the Fourteenth Amendment does not apply to persons born in unincorporated territory, including American Samoa, thus reviving the two-tiered framework laid out by the Insular Cases from more than a century ago. The case renders the 50,000 American Samoans the only people born on American soil who are denied birthright citizenship.

The Commonwealth of the Northern Mariana Islands (CNMI) is an unincorporated territory comprising fourteen islands (including Saipan, Tinian, and Rota) on northwestern Pacific Ocean just north of Guam. Around 48,000 persons live in CNMI according to Census 2020. The territory was colonized by Spain, Germany, and Japan until the United States assumed administration after World War II under the Security Council Resolution 21 establishing trusteeship of strategic areas. The islands were part of the United Nations Trust Territory of the Pacific Islands (TTPI). In 1976, Congress approved the Covenant to Establish a Commonwealth of the Northern Marianas Islands in Political Union with the United States; CNMI formally came under U.S. sovereignty on November 4, 1986 under Proclamation 5564,which also conferred U.S. citizenship to the islanders. The Consolidated Natural Resources Act of 2008 (CNRA) made federal immigration law applicable to CMNI beginning on November 29, 2009.[15] In Eche v. Holder, the Nineth Circuit held that the Naturalization Clause does not extend to the unincorporated territory such as CNMI such that residency prior to the enactment of CNRA did not count toward fulfilling residency requirement for naturalization.

The Federated States of Micronesia (FSM) and the Republic of the Marshall Islands (RMI) were part of the TTPI administered by the United States since the end of World War II. Both have become independent sovereign states under Compact of Free Association: FSM on November 3, 1986, and RMI on October 21, 1986. The United Nations Trusteeship ended in December of 1990. Marshallese, together with people from the Federated States of Micronesia and Palau[16] can come to the U.S. to live, work, and study without visas, but they are not U.S. Citizens or U.S. Nationals. They could apply for permanent immigration status through the same avenues available to all others intending to immigrate to the United States.

So when you tell me my time is

up I tell you this.

Pride has kept my lips

pinned by nails,

my rage coffined.

But I exhume my past

to claim this time 

~ Janice Mirikitani, in Mr. Commissioner

 

~ Article Written By Zenobia Lai

[1] Pub. L. 56-339, Section 101 (April 30, 1900).

[2] 8 U.S.C. §1405.

[3] Pub. L. 73-127, §10(a). (March 24, 1934), https://govtrackus.s3.amazonaws.com/legislink/pdf/stat/48/STATUTE-48-Pg456.pdf.

[4] Id. §8(a)(1)

[5] Id. §8(a)(2).

[6] Id. §8(a)(1).

[7] For example, a married son or daughter of a Filipino American will have to wait 61 years before an immigrant visa is available. David J. Bier, Immigration Wait Times from Quotas Have Doubled: Green Card Backlogs Are Long, Growing, and Inequitable, (Cato Institute, Policy Analysis No. 873, June 18, 2019), https://www.cato.org/publications/policy-analysis/immigration-wait-times-quotas-have-doubled-green-card-backlogs-are-long.

[8] The Insular Cases refer to a series of cases decided by the U.S. Supreme Court from 1901 to 1914 that created a two-tiered framework for applying constitutional rights in the U.S. territories. Constitution applied with “full force and effect” for “Incorporated” territories that were destined ultimately for statehood. Downs v. Bidwell, 182 U.S. 244 (1901). See also, Rasmussen v. United States, 197 U.S. 516 (1905) (Sixth Amendment mandated a right to jury trial in Alaska.) Whereas for “unincorporated territories” that lacked the necessary “anticipation of statehood,” only “fundamental” constitutional rights applied. See Dorr v. United States, 195 U.S. 138 (1904). (Residents of the Philippines did not enjoy the right to jury trial unless Congress saw fit to confer it by statute.) These cases justified the American government’s treatment of insular territories as satellite colonies from which it could freely extract resources without corresponding obligations to the people on these land.

[9] 39 Stat. 951-968 (1917).

[10] Pub. L. 64-145, §5 (March 2, 1917).

[11] 8 USC §1402.

[12] Pub. L. 81-512 (1950). https://www.govinfo.gov/content/pkg/COMPS-1142/pdf/COMPS-1142.pdf.

[13] These territories are classified as “unorganized” because Congress has not passed an Organic Act for these territories.

[14] 8 U.S.C. §1408.

[15] Pub. L. 110-229, §6 (May 8, 2008).

[16] Palau has a separate Compact of Free Association that took effect on October 1, 1994. https://www.uscis.gov/sites/default/files/document/fact-sheets/FactSheetVerifyFASCitizens.pdf.

I am the American heartbreak –
The Rock on which Freedom
Stumped its toe –
The great mistake
That Jamestown made
Long ago

~ Langston Hughes

Until the pictures depicting Border Patrol’s abusive treatment of Haitian migrants in Del Rio hit the news in September last year, the plight of Black migrants has been largely invisible in the public consciousness, and it has rarely factored into the public discourse on immigration. Yet, immigration is a Black issue.

Black immigrants make up one of the fastest growing groups in the United States, increasing from nearly 3.7 million people in 2014 to 4.6 million in 2019. An estimated 9% of the 42 million non-citizens in the U.S. in 2014 were Black. Jamaicans and Haitians made up more than one-third of all Black immigrants. Nigerans and Ethiopians are the two largest groups of Black immigrants from Africa. More than half of Black immigrants live in just four states: New York (23%), Florida (18%), Texas (6%) and Maryland (6%), with New York City being home to nearly 40% of foreign-born Black Jamaicans, Miami has the largest Haitian population, Washington D.C is home to the largest Ethiopian immigrant community and Somalian immigrants concentrate in metropolitan areas of Wisconsin and Minnesota. Beside the Caribbean and Africa, Black migrants also come from South America, Central America, Europe, and Asia. Black immigrants from Jamaica, Haiti and the Dominican Republic began immigrating to the U.S. in large numbers in the 1960s; with the majority (63%) of Black African migrants arriving in the U.S. in 2000 or later. More than one quarter (27.3%) of Black immigrants from Africa and the Caribbean obtained Lawful Permanent Status through refugee and asylee adjustment, 10.2% based on the diversity visa program. One in six Black immigrants is undocumented.

The trail taken by Haitians who traverse South America, brave the Darin Gap to reach Panama, travel the entire length of Mexico to reach the Rio Grande and trudge across the river to reach the southern border of the U.S. is the same trail taken by many Black migrants from Africa and elsewhere. For those who survive The Black Migrant Trail of Tragedies, many have been expelled under Title 42 using public health as an excuse, others are stuck in immigration detention and put through fast-tracked removal proceedings without the benefit or opportunity to obtain legal representation. At the peak of the Haitian humanitarian crisis last fall, attorneys reported that they could not locate their clients because the bogus identification numbers randomly assigned to these individuals did not exist in the detainee system. And by the time the attorneys heard about or from their clients, they had already been expelled. Since September 19, 2021, the Biden Administration has spent millions of dollars expelling 156 planeloads of Haitians, totaling about 16,700, back to Haiti, a country deemed unsafe for Americans to visit due to kidnapping, crime, civil unrest, and COVID 19 and where U.S. government personnel are discouraged from walking in Port-au-Prince and other neighborhoods. Among the Haitians expelled, many shackled at waist and wrists en route, 26% were women, and 19% were children, including many infants and toddlers. This image is far from a just and humane immigration system.

Bias in policing has resulted in Blacks and African Americans being arrested at a rate higher than their overall percentage of the population. Civil immigration enforcement that prioritizes those with encounters with the criminal system inevitably impacts Black migrants disproportionately. “Driving while Black,” the 287(g) cooperation agreement between federal immigration enforcement agencies and local law enforcement, and expanded use of “immigration holds” create the detention-to-deportation pipeline. Despite their relatively small size among the U.S. noncitizen population, Black immigrants made up 10.6% of all immigrants in removal proceedings between 2003 and 2015. In 2014, for example, Black immigrants made up 4.8% of those detained during removal proceedings, but they represented 17.4% of detained immigrants facing deportation on criminal grounds. Once detained, Black immigrants are given significantly higher bonds than other detained immigrants similarly situated. For those unable to afford immigration bond, many end up serving the longest time in immigration detention among all detained immigrants and are six times more likely to be subject to solitary confinement.[1]

While only 14% of all detained immigrants face deportation on criminal grounds, fully half (50.4%) of Black immigrants detained during removal proceedings are charged with criminal grounds of removability. Black immigrants are more likely to be deported on criminal grounds than on violations of immigration law, such as entry without inspection, overstaying a visa or working without permission. Black immigrants comprised 7.5% of cases concluded in immigration Courts in 2015, more than one-third (35.7%) of these cases were because the individuals were ordered removed. Because deportation proceedings often commenced long after the underlying criminal conviction, many Black immigrants placed in removal proceedings on criminal grounds had lived in the U.S. for more than a decade and had deep community ties. Deportation based on criminal convictions triggers bars against reentry that range from several years to a permanent bar, thus separating families and rupturing the Black immigrant community in particularly devastating ways.

In the post-George Floyd era when this country is split between those who embark on the journey of racial awakening, making diversity, equity, and inclusion (DEI) training vogue, and zealots who race to ban books from libraries and classrooms, and outlaw teaching Critical Race Theory, it appears that this country is still unwilling to see the deep human suffering and inequities caused by pervasive anti-blackness in our society.  Is this the year when #BlackLivesMatter and #Not1More?

~ by Zenobia Lai

[1] To help families of Black migrants pay immigration bonds, Haitian Bridge Alliance and African Bureau for Immigration and Social Affairs set up Black Immigrants Bail Fund supported by private donations.

This January marks the anniversary of many things, but what tops the list is the January sixth insurrection that took place in 2021. The January Sixth insurrection was a frontal attack of the American democracy, a violent assault on our faith that in a democracy, the majority decides and that there will be peaceful transfer of power following a free and fair election. It was the gravest threat to our democracy. The insurrection also ripped open the thin veil to bare the deeply divided Congress where immigration reform proposals have run into a dead end. Gone are the days when the bipartisan Gang of Eight ushered to passage in the Senate an immigration reform bill in 2013.

One year into the Biden Administration, despite the House passed the Dream and Promise Act of 2021 and the Farmworker Modernization Act in March of 2021 and the introduction of President Biden’s U.S. Citizenship Act of 2021, there has been no action on any of these bills in the Senate. Proposals to incorporate measures of immigration reform through the Budget Reconciliation process were thrice rejected by the Senate Parliamentarian. Common sense legislative change such as advancing the date from the current January 1, 1972 (set thirty-five years ago as part of the 1986 Immigration Reform and Control Act) to allow long-term residents to acquire permanent immigration status through the registry process went nowhere.

On the campaign trail, President Biden promised to finish the work of building a fair and humane immigration system. What would a fair and humane immigration system look like? First, stop calling immigrants “aliens.” U.S.C.I.S. has replaced references of “alien” with “noncitizen” or “undocumented noncitizen,” but there is still a lot of work remaining to meet the goal of replacing that word in all federal statutes and regulations as proposed in the U.S. Citizenship Act of 2021.

To begin building a humane and fair immigration system, we must acknowledge that the system we have is a product of systemic racism. It started with the Naturalization Act of 1790 that allowed only free whites with good moral character to attain citizenship. The law excluded African Americans, Native Americans, and all immigrants of color. The Fourteenth Amendment and the Naturalization Act of 1870 conferred citizenship to African Americans, but Asian immigrants would have to wage decades-long losing legal battle trying to squeeze within the riddle of who is a White person.[1] It was not until 1952 when Asian immigrants became eligible for American citizenship.

A fair and humane immigration system also does not create family separation. Under our current immigration system, families are separated because of the artificial quota that limit how many people from which country under which immigration category can immigrate to the U.S. The quota system is another product of systemic racism. It came into being under the Emergency Quota Act of 1921 that imposed a national origins quota restricting the number of immigrants from any country based on its share of U.S. population in the 1910 Census, thus favoring immigrants from Europe over the rest of the world. Congress further tightened the national origins quota system to favor immigrants from western Europe in the 1924 legislation by setting the quota based on the 1890 Census. Asians, except Filipinos who were U.S. Nationals, were categorically excluded due to the Chinese Exclusion Acts barring Chinese and the Asiatic Barred Zone adopted by Congress in 1917 that barred all immigrants from Asia. This racially discriminatory quota system remained the principle of our immigration system until 1965 when Congress overhauled our immigration laws and assigned the same 20,000 visa quota for every country. Despite the improvement, our immigration law creates family separation by classifying different members of the same family into various preference groups, separating immigrant families for years, and in some cases, decades. For example, in 2018, there were 1.3 million Mexicans waiting for visas to immigrate to the U.S. The interaction between per country quota limit and immigrant preference means that an unmarried adult son or daughter of a Mexican green-card-holder must wait 51 years for an immigrant visa to be available, and should this person decide to get married, this decision will set him or her back another 11 years. Filipinos who are married sons and daughters of a U.S. Citizen also experience a lengthy wait of 61 years for immigrant visas. Should the petitioner pass away before the immigrant visa becomes available, the immigration petition becomes null and void unless there is another parent who can substitute as petitioner. An immigration system that causes families to separate for decades cannot be a humane system. A quota system that originated from systemic racism is fundamentally unfair.

A fair and humane immigration system must have pathways to citizenship for our long-term residents. Among the estimated 10.5 million unauthorized immigrants, 58% have lived in the U.S. for more than 10 years as of 2019, 33% came to the U.S. at seventeen years old or younger, nearly one in three lived in households with U.S. Citizens (the overwhelming majority of them children), 96% of those in the work force were employed.[2] If the pandemic has taught us anything, it is that 7.2 million essential workers who are unauthorized immigrants have risked their lives to feed us, care for us, stock the shelves of supermarket, process our Amazon orders, and are the engines of our economic recovery. Conferring legal status to these individuals would be the true measure of our gratitude.

To have a fair and humane immigration system also means that we honor our obligations under our laws and international treaties and conventions. It means that we allow asylum-seekers to enter the U.S. to seek refuge, not turning them away under spurious public health excuses or create un-resourced refugee camps across the border in Mexico to expose migrants to grave dangers. A fair and humane system also means providing equitable access for everyone, especially Black migrants, to our immigration system. In 2021, Immigration and Customs Enforcement (ICE) operated 1,056 deportation flights, expelling at least 100,000 migrants.[3] Of these deportation flights, 154 were flown to Haiti, 116 of these flights took place after September 19, 2021, expelling around 15,300 Haitians. Most of the Haitians expelled never had a chance to seek asylum prior to removal. These numbers did not include most expulsions that happened on land border.[4]

United States is a signatory to the International Covenant on Civil and Political Rights. Article 9 of the Covenant provides that everyone “has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention.”[5] Immigration violations are civil in nature. Immigrants, and especially asylum-seekers, who violate immigration law for entering U.S. without a visa or immigration inspection should not be detained. If our immigration system continues to detain individuals for violating immigration laws, they should have assigned counsel to help them defend against deportation before Immigration Judges. Public funding to provide legal counsel to detained immigrants is sound policy not only because it improves administrative efficiency by helping immigration Judges move cases along and ensuring immigrants appear for scheduled hearings, but it is also a matter of fundamental due process rights. More than forty years ago, the U.S. Supreme Court found that indigent parents who stand to lose custody of their children have strong liberty interest, and that due process demands that they be appointed counsel in these proceedings.[6]  The U.S. Supreme Court also found that a litigant’s right to counsel is not determined by whether the case is civil or criminal in nature, but the right attaches when the outcome of the case may result in the individual’s freedom being curtailed.[7] Immigrants, children and adults alike, lost their freedom when they are thrown into immigration detention from which they are not free to leave. Detention curtails their freedom before they even get a chance to seek immigration protection. From that point on, they must alone navigate the complex immigration system operated in a language not their own against the U.S. government represented by trained attorneys. This David versus Goliath situation can hardly be fair. Unrepresented and detained individuals are more than ten times more likely to lose their bid for immigration relief.[8] The outcome of losing an immigration case is deportation and expulsion back to a country where grave danger awaits, in addition to family separation. A fair and humane immigration system must protect the significant liberty interest of immigrants and their right to due process.

Throughout decades of public discourse about immigrants and debate about what our immigration system should look like, our country looks at what immigrants do for us: pick the crops, cut and pack the meat, clean our offices and hotels, teach our children, care for our elders and sick, innovate our technology, invest to elevate our economic prowess. Immigrants must also prove their worth in dollars, degrees, diplomas, extraordinary skills, squeaky clean backgrounds, among other things. Our country rarely considers what our immigration system does to immigrants, whom we need but do not welcome. Our immigration system can never be fair and humane if we cannot agree on this core truth “that we are all human, we are all Americans and we have common hopes for our communities and country to thrive.”[9]

~ by Zenobia Lai

[1] In a unanimous decision in 1923, the U.S. Supreme Court found that the term “Caucasian” is not synonymous with “White,” and an Indian person though might be Caucasian was not White as recognized by other White people, and therefore should be stripped of U.S. citizenship. United States v. Bhagat Singh Thind, 261 U.S. 204 (1923). In so deciding, the U.S. Supreme Court contradicted its logic in deciding that Takao Ozawa, an immigrant from Japan who had adopted western culture and upbringing, was ineligible for citizenship as he was not a Caucasian. Ozawa v. United States, 260 U.S. 178 (1922).

[2] Donald Kerwin, et al., Ready to Stay: A Comprehensive Analysis of the US Foreign-Born Population Eligible for Special Legal Status Programs and for Legalization under Pending Bills, (Center for Migration Studies, Dec. 9, 2021), https://cmsny.org/publications/ready-to-stay-report/

[3] Thomas Cartwright, ICE Air Flights: December 2021 and Last 12 Months, (Witness at the Border, Jan. 4, 2022), https://static1.squarespace.com/static/5e221cacff87ba2d2833cf54/t/61d39007020a5d713c988e78/1641254920060/ICE+Air+Dec+2021F_THCPDF.pdf

[4] Nationwide Enforcement Encounters: Title 8 Enforcement Actions and Title 42 Expulsions FY2021, https://www.cbp.gov/newsroom/stats/cbp-enforcement-statistics/title-8-and-title-42-statistics-fy2021; Nationwide Enforcement Encounters: Title 8 Enforcement Actions and Title 42 Expulsions FY2022, https://www.cbp.gov/newsroom/stats/cbp-enforcement-statistics/title-8-and-title-42-statistics

[5] International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976. https://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx

[6] Lassiter v. Dept. of Soc. Services, 452 U.S. 18 (1981).

[7] In re Gault, 387 U.S. 1 (1967).

[8] Jennifer Stave, et al, Assessing the Impact of Legal Representation on Family and Community Unity. P. 28 (New York: Vera Institute of Justice, 2017), https://www.vera.org/publications/new-york-immigrant-family-unity-project-evaluation; Transactional Records Access Clearinghouse (TRAC), “Representation Makes Fourteen-Fold Difference in Outcome: Immigration Court ‘Women with Children’ Cases,” July 15, 2015, https://perma.cc/7NBM-BNXW.

[9] Jimmy Carter. I Fear for Our Democracy (New York Times, Jan. 6, 2022), https://www.nytimes.com/2022/01/05/opinion/jan-6-jimmy-carter.html

For many immigrants, crossing oceans, deserts and mountains is only part of the journey, there are numerous challenges ahead. A complex immigration system is one of the most critical challenges that many immigrants must overcome. In a system that is not trauma-informed and lacks due process protections, a misremembered time, place, or sequence of events by an asylum-seeker could be interpreted by the judge as lacking credibility and resulting in a denial.

Over the years, HILSC has engaged in ongoing communication with our partners, which helps guide our work and our effort to support the immigrant community. One of the things we heard from our partners is the growing importance and increased need for forensic mental health evaluations. Such evaluations serve a vital purpose in immigration cases, especially for clients who have experienced complex trauma. Forensic evaluations can help bolster a client’s legal case. Specifically, the forensic evaluation can provide additional evidence, corroborate the client’s story, and support their credibility. In addition, clinical expert testimony can provide an objective expert opinion as well as psychosocial education regarding the impact of trauma on a person’s psychological and emotional well-being.

Immigration attorneys have noted the vital role of forensic mental health evaluations. The synergistic collaboration between attorneys and mental health providers often leads to successful outcomes for our clients. A high-quality evaluation can sometimes be the difference between a case getting approved or not. Unfortunately, these specialized services are not easily accessible due to limited financial resources and specialized training needs for clinicians.

In 2019, HILSC launched the forensic evaluations program funded by the Robert Wood Johnson Foundation to support our legal services partners and their clients. This capacity building project has helped to connect attorneys with local clinicians and most importantly, it has helped immigration clients gain access to forensic mental health evaluations. The project has focused on expanding the capacity of high-quality mental health evaluations by including various program initiatives including network development, case coordination, financial assistance, and training. We began by developing a network of Houston-based clinicians who have training in trauma-informed psychotherapy. Today, our clinical network comprises evaluators of various clinical backgrounds, including licensed clinical social workers, licensed professional counselors, licensed marriage and family therapists, psychologists, and psychiatrists. Although their therapeutic approach and training might vary, all clinicians are trained to assess, treat, and diagnose mental health. The next step was to collaborate with our legal partners to offer specialized training focused on forensic evaluations.

Our forensic evaluation webinar series offers interdisciplinary instruction aimed to train clinicians and attorneys on best practices for conducting and incorporating mental health evaluations. Although attorneys and clinicians have different approaches and operate in different frameworks, the goal to support the immigrant community is the same. The webinar series incorporates cross training for both disciplines to give clients the best chance for a successful outcome.

After building a clinical network, HILSC focused on providing case coordination to connect trained forensic evaluators with immigration attorneys in our legal network. Case coordination consists of connecting attorneys with clinicians based on a range of factors including the client’s needs, the legal needs of the case and the evaluator’s clinical expertise. Once connected to the attorney, the clinician meets with the client, conducts the forensic interview, documents the psychological impact through a written report and provides oral testimony during the hearing. This multi-step process is often the key to successful outcomes for our clients seeking asylum.

Our commitment to program evaluation and quality improvement led us to establish critical training opportunities including our forensic evaluation mentorship program. The mentorship model is a collaborative training system which amplifies and enhances the work of our clinical network. Seasoned mentors share their knowledge, skills, and expertise in performing mental health evaluations in the immigration context. The mentorship model not only expanded our clinical network, but it has also helped set high standards of practice for clinicians who are doing this important work.

One of the challenges in accessing forensic evaluations is the cost associated with the specialized service. To minimize the access barrier, HILSC developed a stipend program focused on building capacity and defraying the cost of mental health evaluations. HILSC provides low bono stipends for forensic evaluators whose service is requested by HILSC’s legal partners. Since 2019, our forensic evaluations program has offered case coordination to pair attorneys and clinicians in 136 cases, provided more than $76,000 in stipends for mental health evaluations, with 21 cases pending. We have also developed a clinical network with clinicians of diverse backgrounds, provided interdisciplinary training on how to conduct and incorporate forensic evaluations, and finally, we have provided mentorship and technical assistance.

The pandemic has led to closure of the Immigration Courts for sixteen months, many hearings have been postponed. To ensure that clinicians are prepared to provide compelling testimony to support the clients’ cases, HILSC will offer another round of mentorship focusing on preparing clinicians for court testimony. The crux of these testimonies is to provide psychosocial education to the judge, to provide an expert opinion to explain the client’s behavior, to corroborate the client’s story and to bolster the client’s credibility. Clinicians in our mentorship program have shared that “it’s important to have support and continued growth for best practices and improvement for completing sound [forensic] evaluations.”

The second mentorship cycle will offer opportunities to support clinicians with varying levels of experience. New forensic evaluators will receive the necessary support to begin engaging in this work and experienced clinicians will have opportunities to further their professional development and get guidance from seasoned clinicians in preparing for court testimony. We will also offer a continued education curriculum with specific learning objectives and additional resources. The curriculum will emphasize integrating clinical and legal work to adopt an interdisciplinary approach in working with clients. We plan to roll out the curriculum through an on-line classroom platform that carries CEU credits for clinicians.

The forensic evaluations program has accomplished many things in the last three years. But perhaps, the most important accomplishment is to normalize mental health services and open the door for immigration clients to engage in counseling. Complex trauma can have long-lasting, detrimental effects. But mental health services can help minimize the impact and encourage clients to embark on a journey to begin healing.

~ by Zenobia Lai & Thalia Flores Werner