Immigrants living under a different regulatory regime

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

Over 46 million immigrants inhabit 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 which subjects them to a different regulatory framework for access to justice, health care and housing.

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

Although the United States benefits from the contributions of immigrants, the US regulatory framework subjects immigrants without legal status to overregulation, to prevent their access to government resources – or under-regulation, as a means of To allow their continued expulsion or exclusion.

Under the public charge of the Trump administration in 2020 rulerfor example, the Department of Homeland Security (DHS) Explain that “individuals are inadmissible to the United States if they are unable to care for themselves without becoming public charges”. The 2020 rule judge 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Even though the Trump administration’s public charge rule is no longer in effect, the rule had a lasting effect during the COVID-19 pandemic, when half of immigrant families abstained to seek public assistance because they feared potential consequences to their immigration status.

Additionally, DHS has propose a change to the 2019 public charge rule, which would revert to the previous administration’s interpretation of “public charge.” According to the DHS Secretary Alexander Mayorkasunder 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 Program for Needy Families.

The DHS continues to expel often without a hearing before an immigration judge or access to a lawyer. At the same time, DHS does not receive involved in cases of privately funded deportations, such as medical deportations, when hospitals contract private charter flights 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 a article published in the Journal of Food Law and Policy, Kimberly Bousquet argues that government actors should enact laws and enact regulations to protect agricultural workers – many of whom are undocumented immigrants – from excessive exposure to COVID-19. Bousquet Remarks that agricultural workers are critical to the US economy and as a result they had to report to work during the pandemic at times when most other workers were encouraged or required to stay home. Bousquet argue that agricultural workers face unique challenges, or at least greater challenges than the vast majority of American workers, including cramped housing, extreme poverty, and the inability to take paid sick leave or access to unemployment benefits. Due to these difficulties combined with having to work throughout the pandemic, Bousquet Explain that agricultural workers have contracted COVID-19 at a higher rate than the general population. Bousquet argue 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 University of Missouri Law School. In a article published in the Georgetown Journal of Poverty Law and Policy, Ayano Explain that many immigrants end up in “informal tenant” relationships – where they rent bedrooms, basements or other rooms converted into living spaces – because they have difficulty earning the income and credit history needed to rent a property. Ayano discuss the legal differences between informal tenant relationships and traditional tenant-landlord relationships. In informal relationships, tenants only to have the rights granted to them under contract law, while formal tenant-landlord agreements secure additional property rights for both tenants and landlords. Ayano Explain problems often present in informal tenant arrangements, such as overcrowding and instability. He argue 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 a article published in the Russell Sage Foundation Journal of Social Science, Amairini Sanchez of 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 and civil immigration law. They analyze how monetary penalties interact with criimmigration systems in different states. Writers Explain the ways in which courts use the opacity of the immigration system to exploit immigrants who fear deportation by imposing legal financial obligations on them. They too 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 the courts use monetary penalties to keep immigrants tied to the criminal justice system.
  • In a next article in the California Law Review, Shayak Sarkar of University of California Davis School of Law argues that “capital controls” – limits on the movement of funds across borders – function as a form of “migrant control”. Sarkar examined three capital controls: taxation of remittances, refusal to pay social security benefits, and banking rules for customer identification. He writing that these capital controls, which often draw 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 explore the respective implications of constitutional law and immigration laws, such as which government entities are allowed to control U.S. migration
  • United States Immigration Policy affected public health, explains Polly J.Award of Emory University. In an article published in the Indiana Health Law Review, Price critical DHS for punitive treatment of immigrants’ access to health care. For example, DHS released a proposed rule in 2018 that would effectively allow require “all foreigners applying for an extension of stay or a change of status” to demonstrate that they have not received any government-funded health services. She argue 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 Benion and several co-authors denounce the practice of medical expulsion, which they to define as “the physical movement by a non-governmental entity of an immigrant patient, who is seriously injured or ill, from one country to another without the informed consent of the patient or the patient’s 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. Writers identify medical expulsion issues. For example, they complaint it is often not a medically sound decision and can lead to deterioration in the state of health 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 delivered 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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