Immigrants living under a different regulatory regime

Scholars and advocates discuss the regulatory frameworks that govern immigrants without legal status.

More than 46 million immigrants live in the United States, the highest immigrant population in more than a century. But many immigrants lack the legal status to work and live in the United States, subjecting them to a different regulatory framework for access to justice, health care and housing.

A large majority of immigrants without legal status have lived and contributed to their community for many years.

Although the United States benefits from the contributions of immigrants, the United States regulatory framework subjects immigrants without legal status to either over-regulation – as a means of preventing their access to government resources – or under-regulation, as a means of allowing their expulsion or continued exclusion. .

Under the Trump administration’s 2020 public charge rule, for example, the Department of Homeland Security (DHS) explained that “individuals are inadmissible to the United States if they are incapable of caring for themselves without becoming public charges”. The 2020 rule considered immigrants without legal status a “public charge” if they relied or could rely on public benefits such as Medicaid, SNAP or federal housing assistance.

Even though the Trump administration’s public charge rule is no longer in effect, the rule had a lasting effect during the COVID-19 pandemic, when half of immigrant families refrained from applying for public assistance because that they feared potential consequences for their immigration status.

In addition, DHS proposed a change to the 2019 public charge rule that would revert to the previous administration’s interpretation of “public charge.” According to DHS Secretary Alejandro Mayorkas, under this rule change, individuals would not be “penalized for choosing to access health benefits and other additional government services available to them.” Yet DHS will continue to exclude certain non-citizens who may need to access public benefits such as Social Security and the Temporary Assistance for Needy Families program.

DHS continues to deport people often without a hearing before an immigration judge or access to an attorney. Simultaneously, DHS does not get involved in privately funded deportation cases, such as medical deportations, when hospitals contract private plane charters to avoid continued medical care for immigrants without legal status or health insurance. .

In this week’s Saturday seminar, we feature the work of experts who discuss how administrative status differs for immigrants without legal status.

  • In an article published in the Journal of Food Law and Policy, Kimberly Bousquet argues that government actors should pass laws and enact regulations to protect farm workers – many of whom are undocumented immigrants – from excessive exposure to COVID-19. Bousquet notes that agricultural workers are essential to the US economy and as a result they had to show up for work during the pandemic at times when most other workers were encouraged or required to stay home. Bousquet argues that agricultural workers face special hardships, or at least greater hardships than the vast majority of American workers, including cramped housing, extreme poverty, and the inability to take paid sick or sick leave. access unemployment benefits. Because of these hardships combined with having to work throughout the pandemic, Bousquet explains that agricultural workers have contracted COVID-19 at a higher rate than the general population. Bousquet argues that the federal government should require agricultural employers to provide protections for their workers to reduce their rate of COVID-19 infections.
  • Courts should grant tenant rights to tenants in arrangements outside of the typical tenant-landlord relationship, argues Mekonnen Firew Ayano of the University of Missouri Law School. In an article published in the Georgetown Journal of Poverty Law and Policy, Ayano explains that many immigrants find themselves in “informal tenant” relationships – where they rent bedrooms, basements or other rooms converted into living spaces – because they struggle to earn the income and the credit history needed to rent a property. Ayano discusses the legal differences between informal tenant relationships and traditional tenant-landlord relationships. In informal relationships, tenants obtain only those rights granted to them under contract law, while formal tenant-landlord agreements secure additional property rights for both tenants and landlords. Ayano explains the problems often present in informal tenant arrangements, such as overcrowding and instability. He argues that courts should address these issues not by regulating informal housing, but by granting tenant rights to those who have informal relationships with tenants.
  • In an article published in the Russell Sage Foundation Social Science Journal, Amairini Sanchez of the University of Georgia and several co-authors argue that monetary penalties are used to exploit immigrants and tie them into the “crimmigration” system – a term used to describe the intersection of criminal law and civil law in l ‘immigration. They analyze how monetary penalties interact with illegal immigration systems in different states. The authors explain how courts use the opacity of the immigration system to exploit immigrants who fear deportation by imposing legal financial obligations on them. They also argue that judges often use racialized language to justify their immigration decisions, even when awarding sentences they consider lenient. Sanchez and his co-authors conclude that courts use monetary penalties to keep immigrants tied to the criminal justice system.
  • In an article to appear in the California Law Review, Shayak Sarkar, of the University of California’s Davis School of Law, argues that “capital controls” – limits on the movement of funds across borders – work as a form of “migrant control”. Sarkar examines three capital controls: taxation of remittances, refusals to pay social security benefits, and banking rules for customer identification. He writes that these capital controls, which often make distinctions based on immigration status, can “protect against, deport, and marginalize” various immigrants. For example, many immigrants are separated from the formal financial system because they do not have the “specific forms” demonstrating their legal status. Sarkar explores the respective implications of constitutional law and immigration laws, such as which government entities are allowed to control American migration
  • Immigration policy in the United States affects public health, says Polly J. Price of Emory University. In an article published in the Indiana Health Law Review, Price criticizes DHS for treating immigrants’ access to health care in a punitive way. For example, DHS released a proposed rule in 2018 that would effectively require “all aliens requesting an extension of stay or change of status” to demonstrate that they have not received any government-funded healthcare services. She argues that this treatment encroaches on the domain of local health services and could “increase the prevalence of communicable diseases”.
  • In a report published by the Free Migration Project and the University of Pennsylvania Law School Legislative Clinic, David Bennion and several co-authors denounce the practice of medical deportation, which they define as “the physical removal by a nongovernmental entity from a patient immigrating, seriously injured or ill, from one country to another without the informed consent of the patient or their authorized caregiver”. Hospitals often claim that these patients want to return to their home countries to receive care, but this is usually not the case, for Bennion and his co-authors. The authors identify problems with medical expulsion. For example, they claim that it is often not a medically sound decision and can lead to deterioration in the condition or even death of patients. The authors recommend that hospitals and government policy provide greater protection against medical eviction.

The Saturday Seminar is a weekly feature that aims to put into written form the type of content that would be conveyed in a live seminar involving regulatory experts. Every week, Regulatory Review publishes a brief overview of a selected regulatory topic and then summarizes recent research and academic writing on that topic.

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