NOI 49: Immigration Lawsuits in the Age of Covid-19

Today we look at two immigration-related lawsuits that have to do with the impact of the coronavirus Covid-19 on U.S. immigration laws and their enforcement.

Jacob Tingen: Nation of immigrants. Welcome and thanks for listening in again to another episode. I’m excited to still be recording here from my home office, as you can see if you’re watching on video. Due to the coronavirus pandemic, I’ve moved some of my recording equipment home. We will see how this goes. Today we’re going to be talking about some lawsuits that have come up in the midst of this coronavirus pandemic that are related to immigration. So stay tuned, and we’ll get into it after the intro.

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President Obama: America is a nation of immigrants.

Announcer: A podcast about US immigration law, with your host, Jacob Tingen.

Jacob Tingen: Okay, so as I said, I am recording from home and this is actually take two. The first time I tried recording this episode, my internet went out and I had kids coming in and out of my room, so we will see how it goes right now. But yeah, we’re going to be talking about lawsuits in the age of COVID-19, what’s happening in terms of immigration, and how the government is handling that, that interplay between immigration and this virus, and keeping everyone safe. And I wanted to start with this quote from a document put out by the Department of Homeland Security that says this, “In March, the Department of Homeland Security officials clarified that they would not consider testing, treatment, more preventative care, including vaccines if a vaccine becomes available, related to COVID-19 as part of a public charge inadmissibility determination, even if such treatment is provided or paid for by one or more public benefits as defined in the rule.”

Jacob Tingen: So what’s interesting here is, it comes in to play as part of this public charge conversation that the nation has been having on the issue with immigration for several months. When I started this podcast last August is when this new rule was being promulgated. So to give you a quick refresher, public charge is the concept that if an immigrant is likely or is a public charge, meaning that they’d be dependent upon the government for financial or temporal assistance, that they’re not able to get a green card, they’re not able to get lawful status here in the country. It’s the public charge rule. You’re too poor to immigrate. We’ve talked about this before.

Jacob Tingen: And what’s interesting is that the Trump administration was promulgating this new rule, and it’s very interesting in terms of how it’s been implemented, but the idea and the definition of being or likely to become a public charge under the Trump administration, one of the aspects of that calculation that immigration agents make is if an immigrant has received 12 months of public benefits in the last 36 months, they’re ineligible to receive a green card, to become a green card holder, a lawful permanent resident in the United States.

Jacob Tingen: And so, a lot of people felt like, “Well of course I’m event should show that they have health insurance, that they’re not going to be dependent upon the US government and those kinds of issues.” And then of course, there was a large public outcry because not even every US citizen has health insurance or could meet the criteria of public charge as set out by the government. And that’s fascinating how this is playing. I’m not a fan of public charge as a general rule, and I’m definitely not a fan of this more strict interpretation of public charge. So over the past several months, there’s been litigation, there was a temporary injunction from multiple jurisdictions. Those temporary injunctions were appealed at the Supreme Court. The Supreme Court said, “No, the public charge rule can go into effect.” So it’s been, to put it mildly, a mess.

Jacob Tingen: But what’s interesting is that now, at this time, in the midst of the coronavirus pandemic, that DHS would come out and say, “Well, generally receiving medical treatment as part of a public benefit would disqualify you from getting a green card, but if it’s due to COVID-19, not so much.” And so what’s fascinating to me is that in the midst of all this turmoil related to the virus, we’re seeing the services, Department of Homeland Security, USCIS, acknowledge that some of these standards and some of these enforcement practices don’t make sense. And this is one of those times.

Jacob Tingen: I know that right now is a particularly acute emergency, in terms of getting everyone access to medical care. But even when there’s not a pandemic, access to medical care tends to be good, not just for the individual, but for society as a whole. And so it’s interesting that they’re going to say, “Well, when it comes to COVID-19, they want to encourage people to get testing.” But unfortunately, given the administration’s stance and posture towards all of this stuff for so long, a lot of immigrants are just still afraid to get the help that they need. And that’s just a reality that we live in.

Jacob Tingen: So, this is from an article on Buzzfeed news. “Immigrants are scared of getting coronavirus treatment because of Trump’s crackdown, doctors and lawyers say.” So basically, we’ve got these workers, many of whom would work in essential industries, and if you’re listening, you’re thinking, “Well, I don’t care about illegal immigrants.” Think again. A lot of these people who are concerned about this, who would be eligible for public benefits, are here legally. Those are the only ones eligible for public benefits anyway, the ones that are here legally. And so, these are the people with a path to the green card, to a legal step to get a green card, and they’re scared to go to the doctor. And a lot of them work in jobs and positions that are deemed to be essential workers. And so these people are afraid to go to the doctor.

Jacob Tingen: We talked last time about how the stance of the Trump administration has changed, and that they want to increase the number of farm workers that we import into the country via immigration, because we really can’t have holes in our food supply system right now. And so to me, this is just fascinating again, that this is a clamp down on legal immigration, this issue of defining public charge and limiting who can become a permanent resident, and now it’s having this impact when we least need a negative impact in these essential positions, people who are doing janitorial work and grocery stores and those kinds of things. We don’t tend to think of them as essential in our day to day lives, but yet it’s part of this food supply chain that’s keeping our country, frankly, on life support while we go through this coronavirus pandemic and shut down of a lot of businesses and a lot of economic activity.

Jacob Tingen: Naturally, lawsuits have come asking for the suspension of the public charge rule generally during this pandemic and the time that it’s going to take for our nation to recover from it. So New York Attorney General, Letitia James, requested that the court rethink its decision in January, allowing the policy to go in effect saying that the policy deters access to public benefits, including nutrition benefits, that are critical for both immigrants and the country as a whole to weather economic crisis triggered by COVID-19. These irreparable harms have tipped the balance of the equities decidedly against maintaining the stay during the national emergency concerning COVID-19. And I would agree that we understood immigrant advocates generally that, when the Supreme Court said, “You know what? This public charge rule can go into effect in the meantime. While this litigation continues, we’re going to remove the temporary injunction.”

Jacob Tingen: Everybody said, “All right, well, we lost the battle. We may still win the war. This litigation is continuing.” But now, it seems that, given the crisis, let’s just set this to the side for now because we don’t want to discourage people no matter their immigration status. We don’t want to discourage people from getting tested for this virus. And I think that that makes sense. So this is just one of those interesting lawsuits that’s come up. And of course this is affecting a lot of people. We’ve talked about how it’s affecting a lot of people, but it’s not making anyone sick, the outcome of this litigation. The other lawsuit that I want to bring up is about detention of immigrants. So there’s another lawsuit that is alleging that ICE is engaging in practices that fall short of the CDC recommendations.

Jacob Tingen: And that will lead to a lot of heartache and, unfortunately, death for immigrants right now. So if you’re an immigrant that’s detained in some federal immigration jails, and remember these are civil jails, and some of these people don’t have criminal histories, they’re just coming to the US, either because they’re looking for a better life or they’re fleeing persecution or a combination of the two. And so, what they’re doing in some of these detention facilities is one, they’re not testing these immigrants before they do this, but if they exhibit any symptoms at all, they’re grouping them together. It’s a practice called cohorting, where basically they say, “Well you coughed, you go stand over there with everybody who has coronavirus.” And that’s a problem because if you don’t have coronavirus, but they group you with everyone who does, well that’s a problem, right? Because then you’re going to die, or you could potentially contract this virus and have negative health complications as a result of just a cough or a sneeze that could have been literally anything else. And there’s no testing going on.

Jacob Tingen: So this lawsuit says that ICE directly contradicts CDC guidance in several ways, including the most critical, that ICE officials would describe cohorting as the planned response to a known COVID-19 exposure, not a practice of last resort. So it seems pretty clear from the lawsuit, at least the way that it’s laid out, that this cohorting is not supposed to be your first line of defense, but rather a last line of defense, and that there are other standards of monitoring this and preventing it from spreading like wildfire in your jail, like isolating individual people who have symptoms and those kinds of things. You’d think that jails would be a little more, including immigration jails, would be a little bit more aware of the impacts of doing a practice like this because of the inherent liability in just doing this.

Jacob Tingen: And unfortunately, the story, when it comes to immigrants and the less fortunate, is that fewer people are looking out for their rights and their benefits, and they have less access to justice than most. And so, frankly, jails can get away with this kind of thing, and immigration jails in particular. Because ultimately, people get deported and they don’t get lawyers to help them pursue justice in cases like these. I struggle reading things like this because it worries me that we would do this. I have seen a number of headlines stating that jails are releasing immigrants, that jails are releasing inmates generally, because of the quarantine concerns, no gatherings larger than 10 people. What’s interesting is that when you look at our criminal justice system, with be exception of violent criminal offenders, there’s not a lot of justification for keeping people in jail for other crimes.

Jacob Tingen: To give you one example, in Virginia, if you drive without of license two or three times, you get 10 days in jail. And that person’s not really a danger to the community. I don’t think anybody really believes that. And yet, there are these harsh sentences. So then we’ve got people in jail for driving without a license during a pandemic. It just doesn’t seem like a smart move. And so, we’re seeing headlines where people are releasing immigrants from jail, releasing others from jail. And yet we’re also seeing headlines like this, where jails are holding on to immigrants and grouping who they believe to be sick, without any testing, without any confirmation, and saying, “You stand over there with a coronavirus crowd.” And then they’re closing them in cells, so it’s impossible to escape. This to me seems like the wrong approach.

Jacob Tingen: So that’s kind of what we see. We’re seeing some legal action in the midst of this pandemic, and we’re seeing immigrants rights being violated in the case of this jail situation, and then also, immigrants being concerned about asserting access to healthcare in this situation, with the new public charge rule. So hopefully immigrants will realize that, “Hey, in this COVID-19 time, you can access health care as a result of contracting the coronavirus, or as a precaution in preventing from getting it.” And if you’re an immigrant, please get that message that that’s not going to count against you as some kind of public charge criteria if you get tested for COVID-19. But I hope that the government revisits public charge and says, “Wait a minute. What this pandemic has done is highlighted how this is actually dangerous for us and bad for us as a whole in our society.”

Jacob Tingen: So that’s it for Nation of Immigrants today. I hope that you’ve enjoyed what you’ve heard. I hope that if you like what we’re doing, what we’re talking about, please support the podcast. You can visit me at jacobtingen.com, where you can donate to the podcast, and we’re taking those funds and helping immigrants pay off their legal bills with it. And you can also follow us on Facebook, Twitter, Instagram, YouTube, of course. And thanks again for listening, and hope to see you around at the next episode. If I can just play the outro.

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President Obama: America is a nation of immigrants.

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