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SelfLawyer looks at the sweeping changes President Trump has made – or has attempted to make – in U.S. immigration policy.
First Travel Ban: Within a week of taking office, President Trump signed Executive Order 13769 on January 27, 2017. Citing terrorist threats akin to those of September 11th, 2001, this order specified seven countries whose nationals would be denied U.S. entry for 90 days, and would suspend all refugee admissions for 120 days while the immigration screening process is reviewed. The seven banned countries – Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen – are majority Muslim countries, resulting in protests from the general public believing that the ban was based on the President’s religious prejudice.
On February 3, 2017, key parts of the ban were put on hold when a federal district court found the ban unconstitutional because those affected would be denied “employment, education, business, family relations, and freedom to travel” and these harms would be “significant and ongoing.” On February 9, 2017, a federal court of appeals upheld the district court, finding “no evidence” that people from the banned countries had carried out terrorist attacks in the U.S.
Second Travel Ban: President Trump signed a second travel ban on March 6, 2017, as Executive Order 13769. Hoping to survive court challenges, this new order barred entry for some people for 90 days and suspended entry of some refugees for 120 days. While the order still targeted nationals from six predominantly Muslim countries – Iran, Libya, Somalia, Sudan, Syria, and Yemen – the new order carved out exceptions, and thus, was less sweeping than the original ban.
In 2020, President Trump expanded the ban to include most immigrants from Sudan, Tanzania, Eritrea, Nigeria, Myanmar (Burma), and Kyrgyzstan through Presidential Proclamation 9984.
Again, a federal district court barred enforcement, and a federal court of appeals affirmed. However, on June 26, 2017, the United States Supreme Court allowed the ban’s partial enforcement with the exception of those who could prove “bona fide” ties to the U.S.
Third Travel Ban: On September 24, 2017, President Trump signed additional travel restrictions on nationals from Iran, Libya, Somalia, Syria, and Yemen in addition to North Korea and government officials from Venezuela through Presidential Proclamation 9645. This third ban is more sweeping, as it prevents almost all nationals from certain countries from obtaining a green card or visa. To pass constitutional challenges, those already in possession of visas and green cards are exempt. The proclamation also makes waivers available for those who can prove entry does not pose a security threat, would be in America’s national interest, and that denying so will cause “undue hardship.”
The Impact: According to data obtained by SelfLawyer, between 2017 and 2018, the green card approval rate for nationals from Iran, Libya, Somalia, Syria, and Yemen dropped to an average of 34%. Visa approvals declined 73%.
These Bans Remain in Effect: On December 4, 2017, the Supreme Court allowed President Trump’s third travel ban to take effect. The Supreme Court upheld this third ban on June 26, 2018. It remains in effect today.
Ever Changing Asylum Policies
To restrict the flow of immigrants crossing the U.S.-Mexico border, the Trump administration has undertaken several measures to change the criteria of those qualified for asylum under U.S. immigration law. The two most consequential measures include “Remain in Mexico” and “Border Crossing Asylum.”
Migrant Protection Protocols (Remain in Mexico)
On January 24, 2019, the Department of Homeland Security (DHS) implemented the Migrant Protection Protocols (MPP), also known as ‘Remain in Mexico’, under the guise of a “safe and orderly immigration process.” Aimed at reducing fraud, and protecting those vulnerable from smugglers and traffickers, MPP directs U.S. border officers to return non-Mexican asylum seekers back to Mexico while their cases process in U.S. immigration court.
Opposing the policy in federal court, a group of U.S. asylum officers urged for MPP’s overturn, arguing that it “abandons our tradition of providing a safe haven to the persecuted and violates our international and domestic legal obligations.” On March 4, 2020, however, a federal appeals court upheld the law, and MPP remains in effect today.
Asylum Cooperation Agreements
Aimed at Central America nationals who cross through Mexico to seek asylum in the U.S., the DHS enacted Asylum Cooperation Agreements on November 19, 2019. This policy applies specifically to the U.S.-Mexico border, saying that “an alien who enters or attempts to enter the United States across the southern border after failing to apply for protection in a third country outside the alien’s country of citizenship, nationality, or last lawful habitual residence through which the alien transited en route to the United States is ineligible for asylum.” In sum, the measure effectively blocks all asylum seekers at the southern border, except those from Mexico.
The Asylum Agreement brings pressure to Mexico and Guatemala because migrants and refugees from Guatemala, Honduras, and El Salvador – countries that account for a majority of migrants seeking asylum – must pass through these countries to reach the U.S.-Mexico border. As a result, these countries will be forced to process asylum applications and house (at least, temporarily) persons seeking asylum in their country.
Guatemala, Honduras & El Salvador have all signed historic Asylum Cooperation Agreements and are working to end the scourge of human smuggling. To further accelerate this progress, the U.S. will shortly be approving targeted assistance in the areas of law enforcement & security.
— Donald J. Trump (@realDonaldTrump) October 16, 2019
Through figures obtained from the immigration courts and the Mexican government, SelfLawyer and others estimate that between 57,000 and 62,000 asylum seekers from Honduras, Guatemala, and El Salvador had been sent to Mexico to wait for their cases to proceed through the U.S. immigration courts. With U.S. immigration courts understaffed and more than a million cases backlogged, it can take years for these cases to close. In the meantime, the stated purpose of the policy – “safe and orderly immigration process” aimed at reducing fraud, and protecting those vulnerable from smugglers and traffickers – is having just the opposite effect. There are numerous credible reports that the very women, children, and families the policy sought to protect are stranded in dangerous locations in Mexico with little or no money, work, due process, or legal immigration lawyers – with reports of thefts, rapes, and murders rampant among these innocent asylum seekers. These Asylum Procedures Remain in Effect: On September 11, 2019, the Supreme Court allowed the near-total asylum ban to take effect while the legal battle rages. Today, these policies are still in place.
“Zero Tolerance” and Family Separation
In the spring of 2018, there was a surge of border crossings along the U.S.-Mexico border, and many of these crossings included families with children. As a result, then-Attorney General Jeff Sessions announced a “zero tolerance” policy, warning that everyone who crossed the southern border illegally would be referred for criminal prosecution. Sessions warned, “If you are smuggling a child, then we will prosecute you and that child will be separated from you as required by law.” Because the children of these asylum-seeking parents could not be held in federal jail, these children were separated from their parents and put in the care of the Department of Health and Human Services (HHS).
Some within the Trump administration tried to frame family separations as an unforeseen circumstance of enforcing the law. Others, however, plainly stated that separating children was meant to act as a deterrent.
The Impact: A federal district court ordered HHS to identify and reunite all children separated from their parents. To the court, HHS stated that approximately 2,730 children were in HHS custody. But a later audit revealed that “the total number of children separated from a parent or guardian by immigration authorities is unknown,” because “thousands of children may have been separated during an influx that began in 2017.”
The Indefinite Detention of Families Continues: Amid a huge outcry, Trump ended family separation with an executive order on June 20, 2018. On August 21, 2019, however, the administration moved to allow the indefinite detention of families crossing the southern border.
The original January 27, 2017 travel ban, Executive Order 13769, that also suspended the refugee admission program for 120 days and called for a review of the screening and admission process, also lowered the admissions ceiling. President Barack Obama had originally set admissions numbers for the fiscal year 2017 at 110,000. President Trump lowered the admissions to 50,000. President Trump has since repeatedly reset the refugee admissions cap at lower and lower levels.
The Impact: According to SelfLawyer’s research, President Trump set the cap for 2018 at 45,000; however, only 22,491 were admitted. For 2019, the cap was set at 30,000; that cap was reached. The cap set for 2020 is 18,000.
According to the Pew Research Center, this 2020 is “the lowest number of refugees settled by the U.S. in a single year since 1980.”
These historical low admissions caps come at a time when persons displaced by violence and persecution has reached the highest levels since World War II, according to the United Nations Refugee Agency.
United States State Department data shows that the admission of Muslim refugees had drastically declined (91% drop) between 2016 and September 2018 compared to Christian refugees (58% drop) in the same time period.
Status: This policy is still in place.
Defining Public Charge
Since the 1800s, U.S. immigration law has sought to exclude those who were “unable to take care of himself or herself without becoming a public charge.” In 1999, Congress defined a “public charge” as someone who was, or was likely to become, “primarily dependent on the government for subsistence” through cash assistance or long-term institutional care.
On October 15, 2019, President Trump greatly expanded who can be considered a “public charge.” Under this new rule, a legal immigrant is a public charge if that person uses food stamps, subsidized housing, or certain Medicaid benefits for more than a year within a three-year window. Moreover, using two benefits in one month counts as two months. Under the rule, immigrants labeled a public charge are ineligible for green cards or visa extensions. In deciding who may someday be a public charge, the immigrants’ age, health, financial status, and educational background will be considered.
Another Presidential Proclamation went into effect on November 3, 2019. This proclamation states that the U.S. will only accept immigrant visa applications from persons who will be able to obtain health care in the U.S. within 30 days of arrival, or have the resources to pay for “reasonably foreseeable medical costs.”
To What Effect? The Department of Homeland Security estimates that approximately 382,000 green card applicants annually will be subject to review under the new public charge rule. DHS estimates that more than 324,000 will either be dropped or simply not enroll in public benefit programs.
The chilling effects of the rule could impact up to 10 million noncitizens, even those the rule doesn’t apply to, according to the Migrant Policy Institute. Moreover, The Urban Institute found that one in seven adults in immigrant families avoided public benefits in 2018 for fear it may put their green card at risk. A Migrant Policy Institute analysis found that the health insurance requirement could block 375,000 immigrants per year.
Public Charge Blocked: On October 11, 2019, three separate federal district courts blocked the public charge rule days before it would take effect. One federal district court judge wrote, “The harms to children, including U.S. citizen children, from reduced access to medical care, food assistance, and housing support … will compound over time.” The health insurance proclamation is also expected to face legal challenges.
The Ending of Temporary Protected Status
Under U.S. immigration law, Temporary Protected Status (TPS) is a form of relief extended to foreign nationals already in the U.S. if they cannot safely return to their home countries due to conflict, disaster or other extraordinary circumstance.
The Secretary of the Department of Homeland Security has failed to renew the TPS for persons from El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan. As a result, citizens from these countries are subject to deportation, many of whom had been in the U.S. since the late 1990s and early 2000s. According to administration officials, the length of time these individuals have been in the U.S. correlates with who is selected.
Citizens from Somalia, Syria, Yemen, and South Sudan received extensions from the DHS Secretary.
What’s the Impact? According to USCIS data compiled by the Congressional Research Service and obtained by SelfLawyer, ending TPS would affect some 250,000 Salvadorans, 56,000 Haitians, 80,600 Hondurans, 14,500 Nepalis, 4,500 Nicaraguans, and 800 Sudanese.
Status: On October 3, 2018, a federal district court blocked DHS from removing the TPS status for persons from Sudan, Nicaragua, Haiti, and El Salvador while the case is being litigated in the courts. On November 4, 2019, the DHS extended the TPS designations for the citizens of Sudan, Nicaragua, Haiti, and El Salvador through January 4, 2021.
COVID-19 National Emergency
On April 22, 2020, President Trump signed a Presidential Proclamation that suspends immigration into the United States for 60 days on the pretense of an “invisible enemy” – the COVID-19 virus. Neither the President nor the White House has offered any other details.
In light of the attack from the Invisible Enemy, as well as the need to protect the jobs of our GREAT American Citizens, I will be signing an Executive Order to temporarily suspend immigration into the United States!
— Donald J. Trump (@realDonaldTrump) April 21, 2020
Trump only says that he suspended immigration for people seeking green cards for 60 days, and an extension would be evaluated after 60 days based on economic conditions. Trump said the measure was intended to protect U.S. workers. The proclamation contains some exceptions for U.S. citizens’ spouses and children under age 21; health-care workers, particularly those fighting the coronavirus; members of the U.S. military; and others. The New York Times reports that President Trump’s chief adviser on immigration, Stephen Miller, had long tried to halt migration based on public health, without success. With the coronavirus placing the United States (and indeed the world) in a state of emergency, only time will tell if President Trump will use the COVID-19 crisis to further his political immigration policies.
Family-Based Immigration Reform
On May 16, 2019, President Trump put forth his vision of immigration reform. This plan would dramatically change the way green cards are issued and essentially eliminate most family-sponsored green cards for parents, siblings, and adult children of U.S. citizens. For lawful permanent residents, the plan will eliminate sponsored green cards for young children and spouses. The plan would also reallocate all green cards issued under the Diversity Visa program. Today, the U.S. issues about 1.1 million green cards annually. Under President Trump’s proposal, that number would not change. However, the way in which these green cards are awarded would change. According to Trump’s proposal, approximately 500,000 of these family-based green cards would be awarded under a “points-based” system. This point system would reward “extraordinary talent,” “professional and specialized vocations,” and “exceptional academic track records.”
Will It Pass? SelfLawyer has found no indication that Trump’s proposal will pass anytime soon. Neither the Democratic majority in the House or Senate Republicans are eager to take the issue up right now. However, the passage may not be the point.
According to Trump top aides Jared Kushner and Stephen Miller, the proposal sets the official White House line on immigration and Trump is hopeful the Republican Party will eventually follow his lead in the most dramatic rethinking of U.S. immigration policy since President Lyndon Johnson signed the Immigration and Nationality Act in 1965.