On July 29, 2020, the U.S. District Court for the Southern District of New York (SDNY) enjoined the government from enforcing, applying, implementing, or treating as effective, the USCIS Final Rule on Inadmissibility on Public Charge Grounds (84 FR 41292, 8/14/19) for any period during which there is a declared national health emergency in response to the COVID-19 outbreak.

The court also issued a separate order enjoining the Department of State (DOS) from implementing, or taking any actions to enforce or apply, the 2018 FAM Revisions, the DOS Interim Final Rule on Visa Ineligibility on Public Charge Grounds (84 FR 54996, 10/11/19), or the President’s October 4, 2019 Proclamation, Suspension of Entry of Immigrants Who Will Financially Burden the United States Healthcare System in Order to Protect the Availability of Healthcare Benefits for Americans (84 FR 53991, 10/9/19) during the COVID-19 pandemic.
DOS Interim Final Rule on Visa Ineligibility on Public Charge Grounds (84 FR 54996, 10/11/19)
These injunctions have nationwide effect during the COVID-19 pandemic.

USCIS Public Charge Rule

 On July 31, 2020, USCIS issued an announcement in response to the SDNY injunction stating that it will not apply the 2019 Public Charge rule, but rather will apply the 1999 public charge guidance while the SDNY decision is in effect.

USCIS stated that for applications and petitions that USCIS adjudicates on or after July 29, 2020, it will not consider any information provided by an applicant or petitioner that relates to the Public Charge Rule, including information provided on the Form I-944, or information on the receipt of public benefits in Part 5 on Form I-539, Part 3 on Form I-539A or Part 6 on Form I-129.

Moreover, applicants and petitioners whose applications or petitions are postmarked on or after July 29, 2020, should not include the Form I-944 or provide information about the receipt of public benefits on Form I-485, Form I-129, or Form I-539/I-539A.

USCIS also indicated that it will issue guidance regarding the use of affected forms. In the interim, USCIS will not reject any Form I-485 on the basis of the inclusion or exclusion of Form I-944, nor Forms I-129 and I-539 based on whether Part 6, or Part 5, respectively, has been completed or left blank.

On Tuesday , July 28, 2020, the Department of Homeland Security has decided to immediately make the following changes to DACA:

• Reject all initial requests for DACA and associated applications for Employment Authorization Documents (EAD);
• Reject new and pending requests for advanced parole absent exceptional circumstances; and,
• Limit the period of renewed deferred action granted pursuant to the DACA policy after the issuance of this memorandum to one (1) year.

Acting DHS Secretary Chad F. Wolf claims that “ the Department of Homeland Security will take action to thoughtfully consider the future of the DACA policy, including whether to fully rescind the program.” The Acting Secretary Chad F. Wolf further stated that “as the Department continues looking at the policy and considers future action, the fact remains that Congress should act on this matter”.

Lawsuits in federal court are expected as a result of this DHS memorandum.

The European Union will keep its external borders shut to travelers from most countries including the U.S. for at least two more weeks.

The EU’s travel “white” list who have the green light to visit the bloc  includes Algeria, Australia,  Canada, China, Georgia, Japan, Morocco, New Zealand, Rwanda, South Korea, Thailand, Tunisia and Uruguay.

The external-border recommendation covers 30 European countries: all EU member states except Ireland plus Iceland, Liechtenstein, Norway and Switzerland because they are part of the bloc’s passport-free travel area.

President Trump issued a memorandum today, July 21, 2020, ordering the US Census to exclude undocumented immigrants from the population totals. The position of the Trump administration is in conflict with the U.S. Constitution which requires that that the “ whole number of persons” be counted in each state. The ACLU announced that it will immediately file a lawsuit.

The Trump administration has granted ICE’s request to be designated a “security/sensitive” agency when it comes to the Freedom of Information Act (FOIA).The designation limits the public’s ability to obtain vital information about ICE. The move further shields ICE from public accountability, allowing them to withhold even more information. This is a blow to government transparency and now the agency and its personnel will be less accountable to the public. The designation places ICE on the same level as officials with the Federal Bureau of Investigations (FBI) and Secret Service. But unlike ICE, these agencies arguably need some level of secrecy and privacy around individual officials due to the often sensitive nature of their operations.
Earlier this year, Customs and Border Protection (CBP) was given the same high-level security designation. These designations are disconcerting given the heightened public concern around law enforcement accountability.

FOIA is an important tool that provides people the right to access information from the federal government, which includes ICE. While the objective of the Act is disclosure, not secrecy, FOIA includes categories of information that are unavailable to the public. Agencies can also apply exemptions to withhold certain types of information. Immigration agencies have long applied these exemptions liberally, so those requesting the information are forced to obtain it through litigation.

Previously, some information about ICE officials in “sensitive” occupations—such as field agents or law enforcement officers—would be withheld but other information could be released in response to FOIA requests. That changes with the designation, granting protections that arguably are not within the statutory exemptions outlined in FOIA.
The memo claims that the designation ensures that “all relevant personally identifiable information (PII) of all ICE personnel” will be withheld, or redacted, when processing FOIA requests. PII includes information like names, duty stations, and salaries.This information is key when investigating complaints or allegations of abuse by certain officers or patterns of such in specific offices or areas. That becomes much harder to do if the information is kept secret.

The designation places ICE on the same level as officials with the Federal Bureau of Investigations (FBI) and Secret Service. But unlike ICE, these agencies arguably need some level of secrecy and privacy around individual officials due to the often sensitive nature of their operations.

Unfortunately, this is part of a trend under the current administration to protect and elevate the interests of individual officials at the expense of the public interest.
Earlier this year, Customs and Border Protection (CBP) was given the same high-level security designation. These designations are all the more troubling given heightened public concern around law enforcement accountability.

ICE—and CBP for that matter—tried to justify the need for the higher designation by claiming that its personnel have experienced more threats and intimidation in recent years. Yet, the memo provides no examples of this. The agency has also not established that any such incidents resulted from information being released through FOIA.
In fact, the memo closes with a reminder to employees that they should not reveal their ties to ICE. This raises an important question. Why has FOIA become the culprit when ICE employees themselves may be the ones revealing personal information?

The memo reads:
“I would ask that we all remain vigilant in our own online interactions. Irresponsible use of social media and needless identification of our positions or affiliation with ICE can create the very same type of risk that this requested OPM designation was intended to avert.”
FOIA is one of few precious tools available to help hold the government accountable and transparent to the people. This decision further strips away the strength of this tool—and without strong justification. This makes the government less transparent for fear of a security threat that doesn’t actually exist.

FILED UNDER: FOIA, Immigration and Customs Enforcement

U.S. District Judge Allison Burroughs in Boston announced on Tuesday, July 14, 2020 that the ICE policy that would have forced international students to leave the U.S. amid the coronavirus pandemic has been rescinded after an agreement was reached by the federal government and several Massachusetts universities, including Harvard and MIT.

Immigration and Customs Enforcement initiated a policy last Monday on July 6, 2020 that said international students can’t live in the U.S. and take all of their classes online during the pandemic.

The federal government will “return to the status quo as established by the March 9, 2020 policy directive,” — which allows international students to take classes online and remain in the U.S.

The Trump Administration is expected to move once again and refile paperwork this week to rescind the Deferred Action for Childhood Arrivals (DACA) program.

The new filing has been widely expected after the U.S. Supreme Court ruled that the administration failed in 2017 to provide adequate justification for terminating the Obama-era program. But the Supreme Court ruling, written by Chief Justice John Roberts, left the door open for the Trump administration to try again to rescind the program.White House chief of staff Mark Meadows hinted in a media interview earlier Monday, July 6, 2020 that the president was readying executive action on immigration issues.

The new filing would likely be challenged again in court.It’s unlikely that a new rescission would abruptly end benefits for current DACA recipients.