NOI 51: The Immigration Ban and COVID-19 Political Power Plays

In today’s episode, attorney Jacob Tingen talks about the real details of the Trump administration’s current ban on immigration. Additionally, he takes a look at recent comments tying COVID-19 relief and support to immigration policies.

Jacob Tingen: Well, hello again Nation of Immigrants, we’re here on another home episode edition of this program, and we’re going to be talking about the immigration ban and then also some recent comments that have been made tying COVID-19 relief efforts to immigration policies at the local jurisdiction level. More on that after the intro.

Announcer: You’re listening to Nation of Immigrants.

President Obama: America is a nation of immigrants.

Announcer: A podcast about US Immigration Law with your host, Jacob Tingen.

Jacob Tingen: Okay, so like I said, we’re going to first jump into the immigration ban. When it first hit the news and I started getting emails and text alerts was because there was a tweet that said, “Ban all immigration.” And the order that eventually came out is somewhat short of that, and I think one of the reasons for that is the Trump administration knows that there’s going to be legal battles over these issues. And if it had really been ban all immigration, not likely to withstand any kind of legal battle. As it is, it’s pretty narrow. In the context of a viral infection, keeping people from coming into the country, there might be a justifiable health concern there, although when you’re the country that has more infections than anyone else, it seems pretty thin to me, but whatever.

Jacob Tingen: What ended up happening is that the actual ban was not as broad as all immigration, which is what I think a lot of people were saying, “Well, if he threatens to halt all immigration, I mean, that’s un-American,” and all that. It’s not that green cards can no longer be issued. It’s just that in particular, the suspension and limitation on entries … I’m reading the actual proclamation here … the entry into the United States of aliens as immigrants is hereby suspended and limited. Basically, nobody’s able to come in lawfully.

Jacob Tingen: And then there are some exceptions to that in terms of not granting green cards and that kind of thing. It doesn’t apply to people who are inside the United States. If you’ve currently got an adjustment of status application pending, then this proclamation doesn’t really affect you. And then it goes through a number of other exceptions. If you’re outside the United States, of course, it applies to you. Do not have an immigrant visa that is valid, so if you’re waiting for an immigrant visa, yeah, this definitely prevents you from coming in. You’re not going to be able to come in with some kind of visitor’s visa, those kinds of things.

Jacob Tingen: A lot of immigration is limited, but aliens that this doesn’t apply to includes permanent residents who already have their green card absolutely can come in. People applying for visas under the EB-5 program, so if you’re applying for a millionaire visa, you’re welcome to come into the United States. And then also, there’s a pretty broad exception for people who are healthcare workers, who are coming to help us combat COVID-19. And then it says … interesting here … “or otherwise alleviating the effects the COVID-19 outbreak,” so depending on how it’s construed, an official could find lots of reasons that someone should be allowed to come into the country, whether that’s people who are going to help us with our food supply chain or those kinds of things.

Jacob Tingen: Even so, it does seem pretty thinly veiled. I mean, of all the actions to take, why this one? And we know the answer. We’re familiar with this administration. All the political and other commentary is out there. But as far as the nitty gritty on what this proclamation actually says, it’s not nearly as broad as I thought it’d be. And it has some of the exceptions that I envisioned it having, particularly for the workers. I was surprised to see an exception for the EB-5 immigrant investors, but not too surprised, right? If anything, we want people’s money right now. And then of course, it did provide pretty broad exceptions to the ban for family members of US citizens, people who are classified as immediate relatives.

Jacob Tingen: As it is, there will be court battles over this issue, but they won’t be as strong as they could have been had it been a ban on all immigration. And then we’re already seeing one headline today in Politico, Court Upholds Trump’s Coronavirus Immigration Ban. And it looks like based on what the article says, they tried to tie litigation on this issue to another piece of litigation that had already gone through, and the judge wasn’t willing to place an injunction on the ban.

Jacob Tingen: The ban is only 60 days in length. Again, I’m not saying that these are great things, but you can see that the Trump administration, I think, tailored this knowing that that litigation would come. And so for them, it’s an easy way to say, “By the time anything runs its way through the courts, it’s going to be over. It’s going to be a moot point.” So the lawyers made it easy for themselves.

Jacob Tingen: What’s interesting is additionally, as we’ve looked and we’ve looked here on this podcast and on this video stream, we’ve been looking at this issue of these court challenges and the ability of a judge or a district judge to make some kind of temporary injunction in the immigration space, that power is being limited. We’re seeing the Supreme Court say, “Hey, we’re overusing this to just impose a nationwide injunction. Even a temporary one seems a little bit beyond what we as judges should be doing.” And so frankly, even if it were a little bit more broad, I wouldn’t see too many judges willing to stick their necks out and strike it down at this point, based on what the Supreme Court said in recent months.

Jacob Tingen: And that was from a concurrence by Judge Gorsuch in one of the other cases that the Supreme Court took up. It was an immigration case where there had been an injunction. And so I don’t see a lot of judges willing to stick their necks out and even impose even a temporary injunction unless something were overly broad. And I was thinking, “Oh, well this might be it. This might be a really overly broad policy.”

Jacob Tingen: I mean, I think the first mentions that I saw were that it was going to be 120 days and it was going to be all immigration except healthcare workers. It’s 60 days and it’s not all immigration and people who are in the United States, of course, will continue to have their cases processed, so not as expansive as I thought. And that’s a good thing. Still not great because I think that it’s really hiding its true intent under the guise of coronavirus.

Jacob Tingen: And I think that it’s a matter of debate, right? Like we should be talking about what steps the nation can and should do when it comes to trade or immigration or those kinds of issues to protect ourselves in the event of a pandemic. But again, I just think that knowing where this administration comes from on the issue of immigration, the justification is disingenuous. And I just think that people understand that.

Jacob Tingen: Talking about that justification versus real reason, there’s another interesting headline that I’ve read is Trump Wants to Use Coronavirus Aid as Leverage to Force Blue States to Change Their Immigration Policies. And this one stuck out to me because if you’ve listened to this podcast, you know that the whole sanctuary city is a bit of a pet peeve for me, not that we have, but how politicians and pundits use the term to basically malign people in their view.

Jacob Tingen: We’ve gone into this before, but a sanctuary city is essentially a city that won’t honor ICE detainers and there are good, legitimate, legal, constitutional reasons for not honoring an ICE detainer request, mainly because their requests, they’re not mandatory, and if you do, if local jurisdictions do, they end up violating the law, they end up violating constitutional rights and then they end up with liability and people have to compensate immigrants for that and jurisdictions lose money, so there are good reasons that a local jurisdiction might not want to cooperate with ICE when it comes to ICE detainers because lots of judges have looked at this, lots of lawyers are aware of this and we know it’s a bad law, okay? And we know that it leads to violations of constitutional rights.

Jacob Tingen: And so if that’s a jurisdiction’s reason for not honoring ICE holds, well, we should be able respect that, but sometimes people are taking those jurisdictions, calling them sanctuary cities, which I guess they are based on the broad definitions that have been thrown out, and then it just seems kind of strange to me that the administration would even suggest, “Well, we’re not going to give coronavirus or COVID-19 aid to a jurisdiction that isn’t willing to violate the constitutional rights of people that live there,” right? And that’s insane. And yet that’s essentially what’s being said.

Jacob Tingen: This article, it’s on Vox, and I understand that it’s left-leaning and that’s fine, but it points out direct quotes from Trump’s public … I guess he has these coronavirus press conferences, and I’m sure many of us are familiar with them. And so he’s talked about COVID-19 aid and he says, “I guess we want to talk about aid, but we’d want certain things also including sanctuary city adjustments.” He’s not exactly hiding this that he’s tying relief aid to immigration concessions, which is how he works. He’s a businessman. It’s all about leverage. We’ve seen that that’s how he works, whether it’s California or Ukraine. This is just kind of what he does.

Jacob Tingen: Should coronavirus relief be contingent on immigration policy? Gosh, I hope not, right? And that’s why this is a problem that needs to be looked at, and I hope that cooler heads prevail when it comes to saving lives and helping people. And I know that there’s internet trolls and probably even on this video and on our YouTube channel, we’ve seen plenty of the comments. We’ve seen your comments. We read them. We know they’re there. There’s some people who are saying, “Well, I don’t care if some democrat in California dies,” but I just don’t feel that’s the right attitude, right? Life is valuable. Republican lives, democrat lives, American lives. To base relief aid on politics or pandering, or, “Will you violate immigrant civil rights for me?” I definitely take issue with, and I don’t think it’s what we need to be doing.

Jacob Tingen: That’s it for today’s Immigration Roundup here on Nation of immigrants. If you like what you’re hearing on the podcast and on the video blog here, go ahead, visit us at JacobTingen.com. You can donate to the podcast to support us. We’re going to take those funds and pay off immigrants’ legal bills. And then also, you can follow us on social media, on YouTube and everywhere else.

Jacob Tingen: Also, I’m excited to be announcing … I’m going to make another video here in a bit … We’re going to be rolling out something to automate public charge, adjustment of status-based applications or adjustment of status, public charge style applications. We’ve seen a lot of complexity in that area with the new form and the rollout of the public charge standard. And so we’re trying to simplify some things there. More information on that here on the YouTube channel. Visit us at JacobTigen.com, TingenWilliams.com and we’ll have more information about that.

Jacob Tingen: And as always, thanks for visiting, for listening, and we’ll be back soon with more information about what’s happening in immigration here in the US.

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President Obama: America is a nation of immigrants.

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