Court Case Against Trump Immigration And Visa Ban Moves Forward
A lawsuit has moved forward that may decide the fate of hundreds of thousands of immigrants and temporary visa holders. These are individuals blocked by two sweeping presidential proclamations issued earlier this year. The plaintiffs seek a preliminary injunction to stop the Trump administration’s proclamations.
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On April 22, 2020, Donald Trump issued a presidential proclamation to “suspend” the entry of nearly all immigrants to the United States. If the entry bans in the presidential proclamation continues, which might be for another four years if Trump is reelected, then virtually no employment-based or family immigrants (except for the spouses and children of U.S. citizens) or Diversity Visa immigrants can enter America. The proclamation claimed the action was necessary due to the high U.S. unemployment rate. However, no serious economic arguments or data were presented to support the contention that allowing in fewer immigrants would lower the unemployment rate.
On April 28, 2020, the American Immigration Lawyers Association (AILA), Justice Action Center and Innovation Law Lab challenged the April proclamation. The lawsuit was filed on behalf of a (putative) class of family-based sponsors of visas for relative children who were about to “age-out” and lose the ability to be issued a visa as a result of the proclamation, according to Jesse Bless of AILA.
On June 22, 2020, the Trump administration issued another presidential proclamation. The new proclamation suspended the entry of foreign nationals on H-1B, L-1, H-2B and (most) J-1 temporary visas until at least December 31, 2020. Once more the proclamation argued that preventing the entry of foreign nationals would improve the U.S. unemployment rate.
On July 17, 2020, AILA, Justice Action Center and Innovation Law Lab filed an amended complaint on behalf of families, employers and organizations to challenge the June 22nd proclamation. The complaint included family-based sponsors of immigrant visas, Diversity Visa applicants, J-1 sponsor organizations and employers sponsoring H-1B and L-1 employees.
On July 31, 2020, the plaintiffs filed a motion for a preliminary injunction to enjoin the presidential proclamations. “This includes the enforcement and implementation of the proclamations by the Department of State, which has interpreted the suspension of entry as precluding the issuance of visas,” said Jesse Bless in an interview. (The case is Domingo Arreguin Gomez, et al., Plaintiffs v. Donald J. Trump, et al., Defendants.)
“The court will hold a hearing on Plaintiffs’ Motions for Preliminary Injunction and Temporary Restraining Order on August 27, 2020, at 1:00 p.m.,” according to the scheduling order of District Court Judge Amit P. Mehta, in the United States District Court for the District of Columbia.
“The statute invoked as authority for the proclamations, 8 U.S.C. § 1182(f), requires that the president ‘find’ that entry into the country by certain foreign nationals would be ‘detrimental to the interests of the United States,’” argue the plaintiffs in the motion for a preliminary injunction. “As the Ninth Circuit concluded in refusing to stay a preliminary injunction barring enforcement of an indistinguishable proclamation in Doe v. Trump . . . this findings requirement is not satisfied by mere assertion or guesswork unsupported by evidence or rational analysis: the Executive Branch must investigate the issues before it, and find in good faith that the entry of specific classes of individuals would be detrimental to the national interest. That is how the president saved the proclamation at issue in Trump v. Hawaii . . . conducting a worldwide multiagency review and issuing detailed reasons for finding that nationals of particular nations should be barred from entry.
“But the proclamations at issue in this case do not indicate any such analysis and contain neither detailed findings nor support for such findings. They gesture to the economic downturn, but supply no support for their central premise that admitted foreign nationals take Americans’ jobs. Nor could the president have found such support, for the overwhelming weight of the evidence contradicts his supposition. Immigration creates jobs and grows the economy, improving job prospects and working conditions for U.S. workers. . . . The proclamations do not withstand the slightest scrutiny, and are invalid under the plain language of the very statute purporting to authorize them.”
The motion for a preliminary injunction includes declarations from economists who state that research shows there is no economic basis for the proclamations. It also cites a National Foundation for American Policy analysis of Bureau of Labor Statistics data that found the unemployment rate in computer occupations, in which most H-1B visa holders work, had remained stable since January 2020, based on information available at the time of the June 22, 2020, proclamation.
The plaintiffs include Carmen Ligia Pimentel, who sponsored her husband to immigrate from the Dominican Republic: “Ms. Pimentel is pregnant with the family’s first child, who is due to be born around the time of this filing. The proclamations deprive Ms. Pimentel of her husband’s companionship and support in caring for their child.”
Twenty-two states and the District of Columbia filed an amicus brief in the case that cites economic research and argues the proclamations harm their residents. “By providing child care and other forms of caretaking work, immigrants support U.S. residents in their work,” according to the brief.
“The proclamations’ sweeping ban will also disrupt numerous industries that are critical to dealing with the Covid-19 crisis, including medical care, science, and technology,” continued the amicus brief. “[T]he proclamations will in fact exacerbate the pandemic’s destructive economic effects. In addition to depriving Amici of the many economic contributions of immigrants and other foreign-born workers, the proclamations will harm Amici’s residents by compelling the prolonged separation of families . . . hundreds of thousands of parents, grandparents, children, and siblings of United States citizens and legal permanent residents will be unable to obtain visas to reunite with their loved ones in this country.”
Charles H. Kuck of Kuck Baxter Immigration LLC, and Gregory H. Siskind and Johnna J. Main Bailey of Siskind Susser, PC, filed an amicus brief on behalf of the National Foundation for American Policy (NFAP) that addressed likely violations of U.S. treaty obligations due to the presidential proclamation barring L-1 visa holders. The brief, which cites a previous NFAP legal analysis, notes that under the General Agreement on Trade in Services (GATS) the United States commits to admit L-1 visa holders, who are intracompany transferees (managers, executives and employees with specialized knowledge).
“The June proclamation impacts tens of thousands of workers from countries around the world and it is very possible a large number of countries will seek redress for the U.S. violation of the treaty,” according to the brief.
“Should the dispute result in impacted countries retaliating against the U.S. per the WTO’s [World Trade Organization’s] dispute resolution process, the consequences for Americans working abroad and U.S. companies operating around the world could be severe,” the brief argues. “The Trump administration is citing helping U.S. workers as the sole basis for the June proclamation. However, the proclamation clearly runs counter to our obligations under the GATS and it is quite foreseeable that we will eventually find U.S. workers overseas being terminated and deported and U.S. companies forced to close their operations or run them at great risk with no oversight from American executives and managers.”
To argue against the Trump administration’s economic rationale for the proclamations, the plaintiffs cite an unusual source that supports the view that immigrants and temporary visa holders help the U.S. economy. The source? The Trump administration.
In the final version of its recent fee rule, the Department of Homeland Security (DHS) wrote: “DHS knows that immigrants make significant contributions to the U.S. economy . . . DHS agrees that immigrants are an important source of labor in the United States and contribute to the economy. . . . DHS agrees that immigrants are crucial for agriculture, construction, healthcare, hospitality, almost all industries, immigrants are a source of future U.S. labor growth, many immigrants are successful entrepreneurs, and that welcoming new citizens helps the U.S. economy. . . . DHS knows that immigrants make important contributions in research, science.”
It appears the Trump administration may not support the economic rationale behind the presidential proclamations either.
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