COVID-19 and Immigration: Health and Legal Implications of Dealing with the System

WASHINGTON – While COVID-19 is amplifying conundrums in many policy areas, perhaps nowhere has this been more manifest than in the area of immigrants and the U.S. immigration system. 

President Donald Trump claimed Wednesday that he had signed an executive order “temporarily suspending immigration into the United States.” 

But once the dust settled, most experts agreed the order will merely delay the issuance of green cards for a minority of applicants.

That’s because it includes a long list of exemptions, including those who are currently in the country, those seeking entry to work as physicians and nurses, wealthy foreign investors, and spouses and minor children of American citizens. 

The 60-day pause also leaves untouched the hundreds of thousands of temporary work and student visas the U.S. issues each year.

Trump said his move was necessary to help Americans find work in an economy ravaged by the coronavirus.

“This will ensure that unemployed Americans of all backgrounds will be first in line for jobs as our economy reopens,” he said.

As in all areas of American life, the cause of the 60-day pause is also a complicating factor.

In mid-March, the U.S. Citizenship and Immigration Services temporarily suspended routine in-person services through at least May 3 to help slow the spread of the virus. Since then, the agency’s staff have continued to perform mission critical duties that do not involve contact with the public, but emergency services have only been available in limited situations. 

But that hasn’t slowed the administration’s efforts to detain and deport those individuals who are in this country illegally, said Ahilan Arulanantham, senior counsel at ACLU, speaking at a virtual conference of the American Constitution Society. 

“It is striking to me at this time that we are paying federal workers to chase immigrants and lock them up with recirculated air … I think people will look back on this time and wonder,” Arulanantham said. 

Among the problems with this practice in the age of the coronavirus is that detention centers are simply not equipped to deal with things like social distancing.

“Populations in vast detention systems can hold almost 50,000 on any given night. People live in really close quarters. At some level, it seems crazy to empty these places out, but it also seems crazy not to do that,” Arulanantham said.

It isn’t just the detainees who are worried.

Ashley Tabaddor, president of the National Association of Immigration Judges, offered a perspective from the bench as some immigration courts remain open for detainee hearings and the DOJ appears to be “committed to wanting to keep business as usual” on detainments and deportations. 

“I want to focus on the impact of the pandemic on support staff,” she said, “as it’s just surreal… the commitment to motives that we can’t quite understand.” 

“Those of us on the inside have had to push back,” she said, indicating that both prosecutors and defense attorneys have spoken out against the DOJ not acknowledging the pandemic, “calling out the agency in a public manner for its failure to provide adequate communication and response … We need to connect the mission of what the court is supposed to be with what is actually happening.”

When it comes to the detained docket, Judge Tabaddor says law enforcement seems to be a primary concern, when perhaps health considerations should be put first. “Goals are being coordinated at an executive level in consideration outside of the health of individuals,” she said, adding that judges and at least one guard have come down with COVID-19 themselves as a result of their work.

“To continue to hold these hearings, you are putting everyone at an extreme disadvantage,” Tabaddor said. She says that even teleconferenced hearings, the DOJ’s response to the in-person hearing predicament, isn’t always the best answer. 

Arulanantham says keeping immigrants in detention centers during the COVID-19 crisis could be considered “cruel and unusual punishment” and is planning to invoke the clause in legal cases he is already preparing. 

“If only we could deport the virus instead [of people],” he said. “To me, it doesn’t make any sense to ban immigration to support [health] or the economy. But this virus brings into stark relief how our system works. It gives us an opportunity to see how expensive immigration reform is, how much harm the system can do… but also gives us the opportunity to reinforce the message of the contributions immigrants make to our nation.”