Stephen Miller, a senior advisor to Donald Trump, is considered the architect of the recent ... [+]
A new legal action has asked a federal judge to place a temporary restraining order on the Trump administration’s April 22, 2020, presidential proclamation designed to prevent many Americans from sponsoring family members for immigration. The legal action builds on an existing lawsuit that has blocked the Trump administration from implementing a presidential proclamation to bar new immigrants without health insurance. The new filing hopes to stop what plaintiffs see as potential harm to families, including children who could “age out” of the immigration process due to the April 22nd proclamation.
“The Presidential Proclamation issued on April 22, 2020, which suspends the entry of many immigrants to the United States, threatens serious harm to immigrant family members whose chance to reunite after many long years of waiting has been suddenly been curtailed,” according to an emergency motion for a temporary restraining order filed on April 25, 2020, by the Justice Action Center (JAC), the American Immigration Lawyers Association (AILA), and Innovation Law Lab, with pro bono counsel Sidley Austin LLP and Latino Network as the organizational plaintiff.
“The changes made by this Presidential Proclamation, without warning, eliminate the urgent and emergency visa adjudication services that had been available to prevent children, ‘in immigration lingo,’ from ‘ag[ing] out,’” according to the plaintiffs.
On November 26, 2019, U.S. District Judge Michael Howard Simon in Oregon granted a motion for a preliminary injunction that halted an October 4, 2019, presidential proclamation that requires immigrants to possess or show they could buy unsubsidized health insurance. (See here.) The Trump administration appealed. The case is moving forward to the Ninth Circuit Court of Appeals. (“The Ninth Circuit denied Defendants’ [the Trump administration’s] Urgent Motion for an Administrative Stay and has not yet decided the Emergency Motion [for a Stay Pending Appeal]. The case is fully briefed on the appeal, but the Ninth Circuit has not scheduled argument on the merits,” according to a filing.)
The judge certified a class of plaintiffs who would be negatively affected by the health insurance requirement, which was considered an important success by attorneys in the case.
The certified class includes “(1) U.S. Petitioner Subclass: Individuals in the United States who currently have or will have an approved or pending petition . . . to sponsor a noncitizen family member for an immigrant visa; and whose sponsored family member is subject to the Proclamation and unable to demonstrate to a consular officer’s satisfaction that he or she ‘will be covered by approved health insurance’ within 30 days after entry or will be able “to pay for reasonably foreseeable medical costs”; and (2) Visa Applicant Subclass: Individuals who are foreign nationals who (i) have applied for or will soon apply . . . for an immigrant visa; (ii) are otherwise eligible to be granted the visa; but (iii) are subject to the Proclamation . . . ”
The plaintiffs argue, “The Court’s existing injunction protects the members of the Visa Applicant Subclass and their rights to have their immigrant visa applications processed without being subject to the additional requirements that the Healthcare Proclamation would impose, against the irreparable harm of prolonged, and possibly indefinite, family separation.”
“As time ticks by, the denial of access to currently available emergency consular processing services endangers these class members’ immigration status and frustrates the relief afforded in this case,” note the plaintiffs.
“If members of the Visa Applicant Subclass, including children who face an imminent risk of ‘aging out’ of their preference status, become entirely unable to access consular processing and visa adjudication services – even just for 60 days – their current visa eligibility will be extinguished,” according to the filing. “For those class members, the Presidential Proclamation thus undermines the benefits and protections of the Court’s existing order, which allows class members to access the visa adjudication process without being subject to the additional requirements that the Healthcare Proclamation would impose.”
“The TRO [temporary restraining order] was filed as part of the on-going suit against the preliminarily enjoined Healthcare Insurance Proclamation,” said Jesse Bless, AILA’s director of litigation, in an interview. “Our motion seeks to protect certain members of plaintiffs’ certified class, including children of immigrants who could age-out without the opportunity to seek emergency consular interviews due to the latest presidential proclamation. This is the first necessary step to protect our certified class members.”
Per Judge Simon’s order, the Court will hold a telephone oral argument on Wednesday, April 29, 2020, at noon Pacific time.
Note: On April 29, 2020, Judge Simon denied the plaintiffs’ motion for temporary restraining order. “Under Plaintiffs’ interpretation of the All Writs Act, any action that may stop or significantly delay the processing of class member’s immigrant visas would interfere with the Court’s jurisdiction,” ruled the judge. “Plaintiffs contend that there need not be any nexus between the purportedly interfering action and the First Amended Class Action Complaint for the All Writs Act to apply. Thus, under Plaintiffs’ construction of the All Writs Act, simply because the Court issued preliminary injunction and class certification orders relating to one discrete aspect of immigration law, it has authority under the All Writs Act to stop enforcement of every immigration executive order or other action that serves to stop or delay the processing of class members’ immigrant visa applications. The Court rejects this broad interpretation of the All Writs Act.”
Analysis and reporting show the presidential proclamation issued April 22, 2020, is an attempt to use the COVID-19 crisis to accomplish what the administration could not achieve through legislation. The proclamation contains nearly identical provisions on legal immigration to those of a White House-designed bill that the U.S. Senate rejected on February 15, 2018, which it voted down on a “cloture motion” 60-39. The legislation would have eliminated the Diversity Visa lottery and the ability of U.S. citizens to sponsor a parent, as well as adult children and siblings (the family preference categories). (See page S1036 here.)
While its text claims the April 22, 2020, proclamation is necessary due to the higher unemployment caused by stay-at-home orders and related measures to fight the coronavirus, the U.S. unemployment rate in February 2018 was only 4.1% when the Trump administration attempted unsuccessfully to stop immigrants from entering the United States in the same categories as were included in the presidential proclamation.
Economic research does not support the proclamation’s underlying premise that reducing legal immigration would lower the U.S. unemployment rate.
A study for the National Foundation for American Policy by Madeline Zavodny, an economics professor at the University of North Florida (UNF), concluded, “The results of the state-level analysis indicate that immigration does not increase U.S. natives’ unemployment or reduce their labor force participation. Instead, having more immigrants reduces the unemployment rate and raises the labor force participation rate.” Other research supports the view that immigrants do not increase unemployment. (The filing cites an April 21, 2020, article I wrote that analyzed the economic justification for the presidential proclamation.)
“Trump senior policy adviser Stephen Miller told White House supporters in a private call this week that the president’s new executive order curbing immigration will usher in the kind of broader long-term changes to American society he has advocated for years, even though the 60-day measures were publicly characterized as a ‘pause’ during the coronavirus pandemic,” reported Nick Miroff and Josh Dawsey of the Washington Post.
It is likely a broader case against the presidential proclamation would require a new or amended complaint. The latest filing may be only the first step taken against a proclamation that suspends the entry of many new immigrants to the United States. Barring a successful lawsuit, observers expect this “60-day” suspension to prevent the entry of legal immigrants will last so long as Donald Trump is president.
