CMS Migration Update - March 21, 2017

A publication of the Center for Migration Studies (CMS)

CMS Migration Update is a weekly digest of news and other information related to national and international migration. It is designed to educate faith leaders regarding vulnerable immigrant populations, developments in the immigration field, pastoral resources and the religious touchstones of diverse faith traditions on migrants and newcomers. It should not be relied upon to provide advice or counsel in immigration cases. The publication is provided by the Center for Migration Studies of New York (CMS), an educational institute/think-tank devoted to the study of international migration, to the promotion of understanding between immigrants and receiving communities, and to public policies that safeguard the dignity and rights of migrants, refugees and newcomers. CMS is a member of the Scalabrini International Migration Network, an international network of shelters, welcoming centers, and other ministries for migrants.

Thomas J. Shea
Editor

Rachel Reyes
Director of Communications

March 21, 2017

What’s Next for Trump Travel Ban 2.0

The Washington Post (March 16, 2017)

Hours before President Donald Trump's Executive Order 13780, entitled “Protecting the Nation from Foreign Terrorist Entry into the United States,” was set to go into effect on March 16th, US District Court Judge Derrick K. Watson in Hawaii issued a nationwide temporary restraining order (TRO) preventing the US government from implementing a ban on refugee admissions for 120 days and the admissions of nationals of six predominantly Muslim countries for 90 days. US District Court Judge Theodore D. Chuang in Maryland similarly issued an injunction. This article lays out how the Trump Administration may proceed. One option is for the Administration to ask the 9th Circuit Court of Appeals to overturn Judge Watson's restraining order and simultaneously ask the 4th Circuit Court of Appeals to overturn Judge Chuang's decision. The stated purpose of the travel ban is to give the government time to review how the United States screens and admits foreign nationals. Therefore, another possible avenue is for the Administration to move forward with its review of screening and vetting procedures while the ban is on hold. By completing the review and issuing new vetting procedures, the Administration could make the litigation moot. Finally, the Administration could reinstate Trump's original executive order (13769) as the president indicated that he would like to do. Yet, considering the existing court rulings pointing out the legal shortcomings with the previous executive order, some attorneys predict that the first travel ban would not withstand Supreme Court review.

To read more, visit https://www.washingtonpost.com/news/post-nation/wp/2017/03/16/whats-next-for-trump-travel-ban-2-0/?utm_term=.b393c3fb2f81.

Rural Areas Brace for a Shortage of Doctors Due to Visa Policy

The New York Times (March 18, 2017)

US Citizenship and Immigration Service (USCIS) recently announced that it would temporarily suspend its "premium processing" program that permits employers to pay an extra $1,225 to have H-1B temporary visas for foreign nationals with special skills to be processed within two weeks. The change will delay the granting of H-1B nonimmigrant status to foreign nationals, including foreign medical graduates abroad and foreign-born doctors who finished their medical education in the United States. Many of these doctors work in underserved areas such as inner cities and rural areas. According to the article, "[s]mall-town America relies on a steady flow of doctors from around the world to deliver babies, treat heart ailments and address its residents' medical needs." The change in policy may mean that some underserved areas will miss out on receiving a physician or have to wait months for one to arrive.

To read more, visit https://www.nytimes.com/2017/03/18/us/doctor-shortage-visa-policy.html?emc=edit_tnt_20170318&nlid=47251438&tntemail0=y&_r=0.

ICE Agents Make Arrests at Courthouses, Sparking Backlash from Attorneys and State Supreme Court

The Los Angeles Times (March 16, 2017)

In the past several weeks, Immigration and Customs Enforcement (ICE) officers have waited outside courthouses in Arizona, California, Colorado, and Texas, or entered courtrooms to arrest undocumented immigrants. The enforcement actions led California Chief Justice Tani Cantil-Sakauye to ask the Trump Administration to stop ICE officers from "stalking" state court houses searching for immigrants. Cantil-Sakauye wrote: "Enforcement policies that include stalking courthouses and arresting undocumented immigrants, the vast majority of whom pose no risk to public safety, are neither safe nor fair." ICE contends that it only pursues this tactic as a last resort, and that the increase in such activity is due to the refusal of law enforcement agencies to comply with its requests to detain immigrants at jails. Advocates for immigrants fear that courthouse sweeps will dissuade immigrants from showing up to testify as witnesses or to seek restraining orders against abusive spouses.

To read more, visit http://www.latimes.com/local/lanow/la-me-ln-ice-courthouse-arrests-20170315-story.html.

Sanctuary 101, Part I: What Trump’s Executive Order Doesn’t Do, Cannot Do, and Has Little to Do With

Lawfare Blog (March 13, 2017)

On January 25, 2017, President Trump issued executive order 13768, titled, "Enhancing Public Safety in the Interior of the United States" [hereinafter the "Sanctuary Cities" order]. Among other things, the executive order instructs the US Attorney General (AG) and the Secretary of the US Department of Homeland Security (DHS) to ensure that "jurisdictions that willfully refuse to comply with 8 USC 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants" with limited exceptions. The Sanctuary Cities order also provides the DHS Secretary with the authority to designate a place as a “sanctuary jurisdiction” and states that the AG shall take appropriate enforcement actions against sanctuary jurisdictions. In this first post of a four-part blog series on the Sanctuary Cities order, Jane Chong, Deputy Managing Editor of Lawfare, writes that some jurisdictions, like Miami, overreacted to the executive order by instructing their officials to comply with "detainer" requests. A detainer is a request by ICE for state or local law enforcement agencies to continue to detain an immigrant after the law enforcement agency no longer has the authority to detain them, until ICE can take custody of the immigrant. Chong points out that the Sanctuary Cities order does not call on jurisdictions to comply with ICE detainers but instead to NOT restrict state and local agencies and officials from sharing the citizenship and immigration status of immigrants with ICE.

To read more, visit https://www.lawfareblog.com/sanctuary-101-part-i-what-trumps-executive-order-doesnt-do-cannot-do-and-has-little-do.

Sanctuary 101, Part II: What Is a “Sanctuary Jurisdiction”? Let's Stop Mystifying the Answer

Lawfare Blog (March 14, 2017)

In part two of Chong’s four-part series on the Sanctuary Cities order, Chong explains "sanctuary jurisdictions." Colloquially, "sanctuary" could mean many things which contribute to the lack of consensus as to what qualifies as a "sanctuary jurisdiction." For purposes of the Sanctuary Cities order, however, a sanctuary jurisdiction is one that prohibits or restricts the sharing of information by a government agency or official of that jurisdiction with federal officers concerning a person's immigration or citizenship status. This definition excludes cities that prohibit their employees from "(a) personally detaining individuals based on their immigration status, or (b) transporting or facilitating the transfer of individuals in its custody to ICE. Nor does it affect a city's prerogative to prohibit certain kinds of (c) information collection or sharing with ICE outside of citizenship or immigration status, such as information regarding an individual's pending release from city custody." Chong emphasizes that nothing in Trump's executive order requires state or local jurisdictions to comply with federal immigration detainers. She adds that the Sanctuary Cities order also does not provide the DHS Secretary or the AG with "sweeping new authority to cut off funding to states and localities."

To read more, visit https://lawfareblog.com/sanctuary-101-part-ii-what-sanctuary-jurisdiction-lets-stop-mystifying-answer.

Sanctuary 101, Part III: Can Trump Condition Federal Funds This Way?

Lawfare Blog (March 15, 2017)

In part three of Chong’s four-part series on the Sanctuary Cities order, Chong analyzes whether the order is constitutional. She queries: (1) whether Trump can condition the receipt of federal funds by the state or local jurisdiction on that jurisdiction's compliance with 8 USC § 1373, and (2) whether 8 USC section 1373 is lawful. Chong first distinguishes between congressional and presidential authority to condition federal funding since the executive’s power to cut funding to so-called sanctuary jurisdictions depends in part on which authorities allocated the funding and the purpose for which the funds were allocated. For example, the president could not go after congressionally authorized "mandatory" funding programs like Medicaid, which are administered by states. In addition, Trump's ability to condition congressional discretionary funds would have to survive a five-part legal test restricting the government's ability to condition funds. Finally, although the president "can't simply create extra conditions to preclude the distribution of all sorts of discretionary funds in contravention of Congress's will," his Administration could nevertheless exercise "considerable sway" over how funds are allocated. To wit, the allocation process may still provide the Trump administration cover to cut funding to jurisdictions that displease him.

To read more, visit https://lawfareblog.com/sanctuary-101-part-iii-can-trump-condition-federal-funds-way.

Sanctuary 101, Part IV: Does § 1373 Unconstitutionally Commandeer the States?

Lawfare Blog (March 16, 2017)

In the fourth and final segment of the blog series on the Sanctuary Cities order, Chong discusses the constitutionality of 8 USC § 1373, which prohibits states and localities from restricting their agencies and officials from sharing citizenship and immigration status information with federal authorities. Chong examines whether Section 1373 violates the Tenth Amendment of the US Constitution (infringing on state sovereignty) because it forces states and localities to enforce a federal regulatory system. Chong concludes that because Section 1373 does not require states to affirmatively do anything but instead requires states not to prohibit the sharing of information with federal officials, the law may be constitutional. Sanctuary jurisdictions, therefore, that affirmatively require their employees to NOT share information about immigrants' citizenship or immigration statuses with federal authorities stand to have select immigration, law enforcement, or discretionary funding cut under Trump's executive order.

To read more, visit https://www.lawfareblog.com/sanctuary-101-part-iv-does-%C2%A7-1373-unconstitutionally-commandeer-states.

Canada Has Detained More Mexicans in 2 Months than in All of 2016

CBC News (March 19, 2017)

Between January 1 and March 9, 2017, the Canadian Border Services Agency (CBSA) detained 444 Mexican nationals, more than the 410 Mexican nationals arrested in all of 2016. The increase in detention came immediately after Canada eliminated in December a visa requirement for Mexican nationals. According to the article, many Mexican immigrants are looking to travel to Canada instead of to the United States because of President Trump's pledge to stop undocumented immigration and to deport undocumented immigrants living in the United States – “about half of whom are Mexican."

To read more, visit http://www.cbc.ca/news/politics/mexican-refugees-canada-detained-1.4031389.

WASHINGTON UPDATE

On March 16, 2017, the Trump Administration released its blueprint for the Fiscal Year 2018 budget and requested a supplemental budget for FY 2017. The supplemental budget request, which includes $30 billion for the Department of Defense, provides $3 billion for DHS, with $1 billion allocated for the design and construction of a border wall, $1.2 billion to pay for the detention and deportation of undocumented immigrants, and the remainder to be used for various purposes, including the recruitment and hiring of new interior and border enforcement personnel. Notably, $5 million was included to expand the Section 287(g) program.

The blueprint for the FY 2018, known as a “skinny budget,” calls for $4.5 billion additional funding for DHS, including $2.6 billion for border security technology and the construction of a border wall, $1.5 billion for the detention and deportation of undocumented immigrants, with the remainder allocated to hiring and training 1,000 Interior and ICE agents and 500 Border Patrol agents and to the mandatory nationwide expansion of the E-verify program. The total proposed DHS budget for FY 2018 is $44.1 billion.

Both the FY 2017 supplemental funding and the additional funding in the FY 2018 budget are designated to implement President Trump’s executive orders on immigration enforcement. The blueprint did not detail cuts in funding for refugee protection, although reports indicate that the proposed State Department budget would be cut by 28 percent. The Administration will submit full details of its FY 2018 budget sometime in next few weeks.

Congressman Harold Rogers (R-KY), chairman of the House Appropriations Committee, said in an interview that, because of proposed cuts in non-defense, non-discretionary funding, the Administration’s budget was draconian, careless, and counterproductive.

A revised executive order banning travel from certain countries and halting the US refugee program , entitled “Protecting the Nation from Foreign Terrorist Entry into the United States,“ was enjoined by a federal judge in Hawaii on March 15. The judge placed a temporary restraining order (TRO) on all sections of the executive order, including the travel ban on six Muslim-majority countries and the temporary freeze on the US refugee program and reduction in resettlement slots to 50,000. A Maryland judge also issued a restraining order on the travel ban, but not on the refugee program.

The Trump Administration requested the federal court in Hawaii to narrow its stay to the travel ban, but was refused. The Administration intends to appeal the Maryland decision to the Fourth Circuit Court of Appeals. It is likely that the Administration will also appeal the Hawaii decision to the Ninth Circuit, the same court that denied its appeal when its first travel ban order was blocked by a Washington state federal court.

Senator Tom Carper (D-Del) introduced legislation to repeal President Trump’s executive order on border security, which includes construction of the border wall. The legislation has 23 cosponsors.

NEW FROM CMS

Creating Cohesive, Coherent Immigration Policy

Pia M. Orrenius and Madeline Zavodny

US immigration policy has serious limitations, particularly when viewed from an economic perspective. Some shortcomings arise from faulty initial design, others from the inability of the system to adapt to changing circumstances. In either case, a reluctance to confront politically difficult decisions is often a contributing factor to the failure to craft laws that can stand the test of time. This paper argues that, as a result, some key aspects of US immigration policy are incoherent and mutually contradictory — new policies are often inconsistent with past policies and undermine their goals. Inconsistency makes policies less effective because participants in the immigration system realize that lawmakers face powerful incentives to revise policies at a later date. It specifically analyzes US policies regarding unauthorized immigration, temporary visas, and humanitarian migrants as examples of incoherence and inconsistency. Lastly, this paper explores key features of an integrated, coherent immigration policy from an economic perspective and how policymakers could better attempt to achieve policy consistency across laws and over time.

To read more, visit http://cmsny.org/publications/jmhs-creating-immigration-policy/.

Dispatches from the Middle East | The European-Union Turkey Migration Agreement One Year Later: A Victory for Orderly Migration or a Violation of International Law and Protection?

Kevin Appleby

From February 24 to March 6, 2017, CMS’s Kevin Appleby participated in a fact-finding mission to Lebanon, Jordan, Iraq, and Greece to ascertain the situation of Syrian, Iraqi, and other refugee groups in the region. In this dispatch, Appleby reports from his trip to Greece and examines the impact of the migration agreement entered into a year ago between the European Union and Turkey to return and detain in Turkey certain migrants trying to travel through Greece to northern EU countries.

To read more, visit http://cmsny.org/dispatches-eu-turkey-oneyrlater/.

Dispatches from the Middle East | The Battle for Mosul: The Humanitarian Costs

Kevin Appleby

In another dispatch, Appleby reports from visits with internally displaced persons (IDPs) living in Erbil, Iraq. The IDPs fled the city of Mosul which is under attack by the Islamic State in Iraq and Syria (ISIS). Appleby explains the situation in Mosul and the possible future of its present and former residents.

To read more, visit http://cmsny.org/dispatches-battle-for-mosul/.

If you are a migrant or pastoral worker and wish to submit an article or reflection to the CMS Migration Update, please email Tom Shea at tshea@cmsny.org

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