The incompetence and lack of guidance from the Trump administration has left states, local governments, school administrators, and so many others scrambling for their own responses to the virus that causes COVID-19 that, with federal government resources and leadership, could be far more productive. Similarly, we have seen little public leadership and guidance from top homeland security and immigration officials with regard to U.S. citizens seeking to reunite with family members, U.S. businesses with foreign national employees or prospective employees, lawful permanent residents, and immigrants with questions, in light of the COVID-19 crisis, about their applications, their immigration hearings, and their health and safety if they are in detention or required to appear before an immigration judge or other official. Instead, sporadic, uneven action is being taken without clear, uniform guidance from the top that best protects the public and those in the immigration system.
Leadership Failures at the Nation’s Immigration Courts: Last week, while the Seattle immigration court closed, only some hearings were cancelled in some cities and it was unclear what would happen next. On Sunday, immigration judges, ICE prosecutors, and attorneys together called for a nationwide closure of all immigration courts. Although they “applaud the DOJ’s decision to close down the Seattle Court…, the DOJ has provided no scientific or reasoned basis to explain why one locale deserves this type of protection, while the Immigration Courts in the rest of the country are being provided with either partial health and safety solutions, or worse, no health and safety precautions at all.” They added, “[W]e urge the Department of Justice to close the Immigration Courts to ensure the safety of all people involved in the process…Failing to take this action now will exacerbate a once in a century public health crisis.”
Unclear Guidance From Officials Unlawfully Appointed, in Acting Positions, and in Positions Without Proper Authority: The “Senior Official Performing the Duties of the Director” of USCIS/Deputy Secretary of DHS, Ken Cuccinelli, Tweeted on Friday, “NM & AZ courts are suspending certain prosecutions for immigration violations due to concerns about Covid-19.” While this is an important new action, it was announced—not by official government statement— but instead by Twitter and it is unclear what it means for individuals who are currently in the prosecution process and detained, and what DHS will do with others it would like to prosecute in the future. More importantly, the statement comes, not from a Department of Justice official whose responsibility it is to prosecute such cases or a federal court where such cases are tried, but from an official appointed to his USCIS position in violation of the Federal Vacancies Reform Act.
Other officials across the Department of Homeland Security also have not been properly nominated and confirmed by the Senate. Chad Wolf is performing the duties of Secretary of Homeland Security in an acting capacity. Like Ken Cuccinelli, Matthew Albence has two roles, one as “Deputy Director” of ICE and another as “Senior Official Performing the Duties of the Director” of ICE. At Customs and Border Protection (CBP), Mark Morgan is also “acting” in a role as Commissioner.
Failure to Appropriately Disseminate Critical Information the Public Will Hear: Although USCIS appropriately issued a statement that “treatment or preventive services [for COVID-19] will not negatively affect any alien as part of a future Public Charge analysis,” the statement was only released on the website after a request from Representative Pramila Jayapal. There was no USCIS press release and not even a Tweet from the Deputy Secretary of DHS/Senior Official Performing the Duties of the Director of USCIS who often uses Twitter. This, despite clear evidence that failure to obtain proper health screening and treatment by anyone who suspects COVID-19 is a risk to all – insured, uninsured, wealthy, working class, documented or undocumented.
Some Positive Action, But Not on a National Level and Not Uniform: On a positive note, a local Baltimore USCIS community relations officer sent an email stating that Baltimore’s USCIS office is “offering same-day naturalization oath ceremonies to individuals who are 60 years or older, expectant mothers, or to any individual with a compromised immune system or an underlying chronic medical condition.” Despite this positive action, it remains unclear what other USCIS offices will do. The same is happening with regard to other USCIS cases— with lawyers reporting various postponements over Twitter— rather than clear, uniform, public guidance through official DHS notices and press releases for all of the public to see.
So many other questions and concerns remain unanswered:
Ensuring the Health and Safety of Immigrants and Staff in Detention and in the Removal Process: While ICE has suspended visitation and recently announced that there are no confirmed cases of COVID-19 in detention centers, an employee of a contracted ICE detention facility is being tested for COVID-19. The Chairman of the House Judiciary Committee has asked ICE many questions regarding the health and safety of those in detention. The Congressional Hispanic Caucus has called on the Department of Homeland Security and the HHS Office of Refugee Resettlement “to prioritize the health and safety of those in  custody and employment by reducing detention numbers in a safe and swift manner” and to share information with Congress. The American Immigration Lawyers Association has recommended a series steps, including releasing anyone with vulnerabilities from custody, decreasing the number of people in detention, cancelling ICE check-ins, and multiple other steps to limit virus exposure and account for the effects of it.
Immigration Courts: Immigration courts generally remain open when so much else around the country has closed and despite the recent CDC recommendation to postpone gatherings with 50 people or more. And just a day after the CDC recommendation was issued, President Trump recommended avoiding gatherings of more than 10 people. What procedures are in place to protect those inside open courtrooms?
USCIS: There are multiple actions USCIS should take to address COVID-19 concerns:
- More Healthcare Workers: Even before the COVID-19 pandemic, the U.S. was experiencing a healthcare worker shortage, and at this time it is more critical than ever. First and foremost, USCIS should expand its 2015 guidance for the issuance of H-1B specialty occupation visas to nurses, including emergency room and critical care nurses. For those healthcare professionals, including physicians who face expiration of their immigration status, USCIS should issue 180 automatic extensions of stay in the relevant visa category.
- Automatic Extensions: Automatic extensions of all nonimmigrant visa classifications, e.g. H-1B, O-1, F-1, for foreign nationals who cannot timely depart the U.S. as a result of COVID-19, in addition to automatic extension of employment authorization documents (EADs) for immigrants whose in-person interviews and court hearings are postponed or cancelled.
- Foreign Students: Protection of status for F-1 students who fall out of status as a result of the COVID-19 virus.
- Telephonic Meetings: Telephonic adjustment of status (green card) and naturalization interviews.
- Visa Waiver Program: Blanket deferral of departure dates for foreign nationals who have entered the US under the 90 day Visa Waiver Program (VWP).
- Discretionary Tools: Deferred action for foreign nationals who cannot depart due to travel restrictions imposed as a result of COVID-19.
Ur Jaddou, Director of DHS Watch and former USCIS Chief Counsel, said:
The failures of immigration officials to appropriately respond to COVID-19 is a microcosm of the series of failures we’re seeing in the Trump administration’s overall response to COVID-19. With so many in an acting capacity, even one appointed in violation of the law, and a President who regularly contradicts public health experts inside the government, it is no wonder leadership is seriously lacking at the Department of Homeland Security and the Justice Department. What is needed now is leadership from the top at the Department of Homeland Security and the Department of Justice.
David Leopold, Counsel to DHS Watch, Chair of Immigration at Ulmer & Berne and former President of the American Immigration Lawyers Association, said:
The federal agencies responsible for immigration must step up to protect public health and safety. The immigration courts should immediately pause all non-detained hearings throughout the country until it’s safe for all to go back to court. ICE should release detained immigrants where possible and cease all enforcement operations against immigrants whose only immigration violation is not having the right papers. USCIS must do more than quietly announce the Public Charge rule does not restrict immigrants from access to testing, screening, or treatment of COVID-19. To the contrary, the agency should use its website to post links to critical COVID-19 related information and bulletins. In this time of national emergency the federal agencies responsible for implementing immigration policy should marshal resources toward the protection of all those whose mission it is to serve. No immigrant should fear that protecting their health and family will compromise their immigration status.