Building Migrant Women’s Resilience to Violence and Trauma

This paper highlights the many levels of violence and trauma experienced by migrant women: from the complex, multiple conditions of violence and trauma that can cause people to migrate, to violence at the hands of those assisting movement (smugglers, pirates, and human traffickers), to the impact of separated and unstable families, to gender-based violence. Violence is often experienced with other conditions such as poverty, lack of economic opportunities, and substandard living conditions.

Migrant women (including refugees, legal immigrants and undocumented immigrants) in the U.S. often reside in neighborhoods and communities where violence continues to be pervasive, with similar conditions to those they left, resulting in continuing trauma and re-traumatization. And those that are repatriated/deported often return to the same conditions of violence and trauma that they fled originally.

Migrant women who experience violence and trauma should not be seen merely as “victims” in need of services; they can become self-advocates, and agents for social change. Building and reinforcing individual, family, and community resilience could be one approach for overcoming violence and trauma. A community and systems approach to resilience at a population level would focus on the family, neighborhood, social network, service providers, and government policies that support migrant women both individually and collectively. These would include policies and practices such as expanded educational opportunities for girls and women, access to contraception and reproductive health education and services, independent economic and business opportunities for women, and safe spaces for social support. Finally, these approaches also must include broader and more long-term changes in cultural and social norms that justify, condone, excuse, stigmatize, and cover up violence against women.

These and other potential interventions and solutions should continue to be explored to better understand and be more responsive to the needs of migrant women who have experienced life-long violence and trauma.

The paper was commissioned by the Ford Foundation through a contract with NEO Philanthropy.

Link to PDF to download or share

Posted in Author, Ignatius Bau: Policy Analysis, Immigrant and Refugee Health, Immigration Law Reform, The iBau Blog | Leave a comment

Exposing Corporate Profiteering from Immigration Detention and Enforcement

There has been little attention paid to the significant financial incentives that fuel harsh and punitive migration policies, what might be called the “financialization of migration.” What are the financial interests and profit incentives that contribute to bad policies and bad outcomes for migrants to the U.S.?

This analysis focuses on corporations profiting from private immigration detention and from increases in U.S. federal budget expenditures on immigration enforcement, e.g. construction of a “wall” on the southwestern border, and expenditures on border surveillance and other technologies. For example, the privatization of the detention of immigrants has been a growing trend, creating direct and substantial profits for a small number of private, for-profit prison corporations.

Every election cycle, these private prison corporations make millions of dollars in political contributions. These corporations also spend millions of dollars on lobbying since their contracts with federal agencies such as Immigration and Customs Enforcement are such an important line of business. These private prison and immigration detention corporations also have had direct influence on federal and state legislation that would increase the levels of immigration detention, which would create additional business, contracts, and profits.

The Trump administration’s plans to build a wall will create profiteering opportunities for additional corporations. Construction corporations already have profited from these federal government contracts.

There also is a significant relationship between increased federal government spending on immigration enforcement and additional business opportunities and profits for the multi-billion dollar U.S. defense contractor industry. Spending on immigration enforcement has included surveillance technologies, drones, heat sensors, radiation-based monitors, and iris and face recognition technologies.

For the FY2019 budget, the Trump administration has requested $2.7 billion for immigration detention, $1.6 billion for additional border wall construction, $571 million for 2,000 additional ICE personnel, $211 million for 750 additional Border Patrol personnel, and $182 million for additional border surveillance technology. Regardless of how many and where new private immigration detention facilities are built, and what specific border “wall” or other immigration enforcement expenditures are ultimately authorized by Congress, private, for-profit companies are poised to continue to gain multi-million dollar contracts and make significant profits from immigration enforcement.

 The paper was commissioned by the Ford Foundation through a contract with NEO Philanthropy.

Link to PDF to download or share

 

 

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U.S. Department of Homeland Security Proposes Sweeping Changes to “Public Charge” Test

Late on Saturday night September 22, 2018, the U.S. Department of Homeland Security (DHS) posted a draft of a proposed regulation with sweeping changes to the “public charge” test under U.S. immigration law, impacting millions of immigrant families.[1]

Link to Original Source

Overview

+ IMPORTANT: this preliminary analysis is based on the draft of the proposed public charge regulation posted by DHS (“DHS draft”); this is still not the “official” proposed regulation, which still could be edited before it is officially published in the Federal Register (which will take several days, and up to several weeks)

+ there will be a 60 day public comment period on the proposed regulation before DHS can finalize the regulation; the “clock” for the 60 day comment period does not begin until official publication in the Federal Register (so the deadline for comments will probably be last week of November 2018, or later)[2]

+ while there are significant changes in the DHS draft from the earlier drafts leaked to/obtained by the media in February and March 2018, the DHS draft is a radical and significant expansion of the public charge test that will impact millions of immigrant families

 + the DHS draft does not change, and actually codifies, the exemptions from the public charge test for refugees and asylees, victims of domestic violence/human trafficking, and certain other applicants for lawful permanent residence (“green cards”); this proposal does not apply to such applicants

+ the proposed changes do not apply to lawful permanent residents applying for citizenship (“naturalization”)

+ the proposed changes do not apply to deportation proceedings; lawful permanent residents will not be deportable for receiving public benefits (except in extremely rare circumstances; in addition,, the proposal notes that the Department of Justice may issue a parallel proposed regulation that would expand the basis for deportation)

 Proposed Changes to Public Charge Test

+ while advocates have been focused on the expansion of the list of public benefits that would be considered as part of the public charge test, the DHS draft focuses on and re-defines the “totality of circumstances” factors (age, health, family status, assets, resources, financial status, education, and skills) for the public charge test; these are defined as positive or negative factors, and will be considered for EVERY applicant for lawful permanent residence/green cards, regardless of whether the applicant has received any public benefits

+ currently, only receipt of cash public benefits – Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), and General Assistance (GA) – or receipt of government-paid long-term institutional care – triggers the public charge test

+ as a matter of practice, most applicants meet the public charge test with an affidavit of support from a “sponsor” (usually a family member)[3]

+ according to the DHS draft, the current receipt of any public benefit (as defined in the proposed regulation) will be a “heavily weighted negative factor” in the totality of circumstances public charge test (page 211)

+ the DHS draft adds the Supplemental Nutrition Assistance Program (SNAP) and Housing and Urban Development (HUD) Section 8 housing assistance (in addition to SSI, TANF, and GA) to the list of public benefits received that would be considered a heavily weighted negative factor under the proposed changes to the public charge test

+ in addition, another heavily weighted negative factor will be if the “monetized value” of SSI, TANF, GA, SNAP, and Section 8 housing benefits received by an applicant in the past 12 months is more than 15% Federal Poverty Guidelines (FPG)[4] for a one-person household, i.e., the applicant ($1,821 under the 2018 FPG)

+ the DHS draft also adds as a heavily weighted negative factor the receipt of “non-monetized” public benefits[5] such as Medicaid (except emergency Medicaid, Medicaid payment related to education of disabled children, and Medicaid for non-U.S. citizen children of U.S. citizen parents), Medicare Part D prescription drug plan premium and cost-sharing subsidies, and living in HUD public housing, in addition to government-paid long-term care), for more than 12 out of the past 36 months – or 9 months if any “monetized” public benefit also was received during that 36-month period[6]

+ the DHS drafts request public comment on whether the Children’s Health Insurance Program (CHIP) should be added to this list of non-monetized public benefits that receipt would be a negative factor (pages 140-141)

+another negative factor will be if the applicant’s income is below 125% FPG (for the applicant’s entire household[7])

+ on the other hand, a heavily weighted positive factor will be showing income at least 250% of the FPL for the applicant’s entire household (page 221)(but it is not clear whether this would sufficient by itself to outweigh any negative factors)

+ while children, including U.S. citizen children, will be included in an applicant’s household for the purposes of determining the 125% or 250% FPGs, only the monetized value of the public benefits received by the applicant will be considered (page 144); accordingly, benefits received by children, including U.S. citizen children, will NOT be considered; monetization of benefits received will be prorated according to the number of those eligible in the household

+ the Supplemental Nutrition Assistance Program for Women, Infants, and Children (WIC), Affordable Care Act marketplace subsidies, low-income energy assistance, the Earned Income Tax Credit (EITC) and other government programs are NOT on the list of public benefits that would be considered for public charge in the DHS draft (although they were included in the March leaked draft)

+ according to the DHS draft, other state and local programs not explicitly listed (such as state-only Medicaid?) will NOT be considered for the public charge test (pages 138-139)[8]

+ the DHS draft references the 1996 Personal Responsibility and Work Opportunity Act (PRWORA) exemption for community level programs and services, including: “medical and public health services (including treatment and prevention of diseases and injuries) and mental health, disability, or substance abuse assistance necessary to protect life or safety” (which we have always understood as including Federally Qualified Health Centers); according to the DHS draft, these community level programs and services will NOT be considered under the public charge test (pages 44-48)

+ the “totality of circumstances” test will focus on employability of those over age 18 and under age 62 (earliest retirement age for Social Security) (pages 163-167); education and limited English proficiency will be considered as part of employability; lack of employability will be a heavily weighted negative factor (page 208)

+ accordingly, just being under age 18, or age 62 and older will be a negative factor (Table 33, page 234)

+ “health” will also be a factor in the totality of circumstances test: a heavily weighted negative factor will be if the applicant “has any physical or mental condition that, although not considered a condition or disorder that would render the alien inadmissible under the health-related ground of inadmissibility, is significant enough to interfere with the person’s ability to care for him- or herself or to attend school or work, or that is likely to require extensive medical treatment or institutionalization in the future” (pages 167, 214); medical conditions will be considered for their potential cost (the applicant will have to show assets and resources to cover estimated health care costs without using government programs such as Medicaid); DHS will get evidence about health from the civil surgeon exam (with expanded questions as part of the exam) and from a new form I-944 that will be required for applicants for lawful permanent residence (page 294)(the new form will likely include questions about medical history, use of medical care, and health insurance but we haven’t seen the form/questions yet)[9]; lack of private health insurance (or financial means to pay for medical care) for applicants with medical conditions will be a heavily weighted negative factor (page 214)

+ in summary:

Current Public Charge Test DHS Draft Proposed Changes to Public Charge Test
As a matter of practice, having the required affidavit of support from a sponsor is sufficient to meet the public charge test Affidavits of support still required but now only a positive factor (to be weighed against any negative factors)
However, if additional inquiry about public charge test is triggered because of receipt of cash benefits (SSI, TANF, GA) or government payment for long-term institutional care, then the applicant could overcome inadmissibility based on public charge with positive factors from totality of circumstances: age, health, family status, assets, resources, financial status, education, and skills(e.g. applicant was on TANF, but is now no longer on TANF and employed) Apply totality of circumstances test to all applicants for lawful permanent residence, and now, mainly as negative factors

 

Such factors were rarely used as negative factors
Age: negative factor if under age 18, or age 62 and older
Education: negative factor if less than high school degree or equivalent
Education: college and graduate education, and professional licenses and certifications are positive factors
Employability: heavily weighted negative factor if not either a full-time student or not currently employed
Employability: negative factor if limited English proficient
Employability: positive factor if speak languages in addition to English and improves employability
Financial status: household income less than 125% Federal Poverty Guidelines (FPG) is a negative factor (“household” includes all dependents, including U.S. citizen children)
Financial status: is employed and has household income more than 250% FPG is a heavily weighted positive factor (household includes all dependents, including U.S. citizen children)
Assets and resources: having financial assets and resources at least 250% FPG for the applicant’s household is a heavily weighted positive factors
Public benefits: receipt of “monetizable” public benefits (defined as Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), and General Assistance (GA), plus new additions of Supplemental Nutritional Assistance Program (SNAP) and HUD Section 8 housing assistance) at any time within past 12 months is a heavily weighted negative factor
Public benefits: Receipt of more than 15% FPG ($1,821 in 2018) in monetizable public benefits within past 12 months is an additional heavily weighted negative factor
Public benefits: Receipt of any “non-monetizable” public benefits (defined as non-emergency Medicaid, Medicare Part D prescription drug premium and cost-sharing subsidies, and living in public housing, in addition to government-paid long-term institutional care) for 12 months or more in past 36 months (“look-back” period) is a heavily weighted negative factor; however, receipt for 9 months or more in the past 36 months is a heavily weighted negative factor if applicant also received any monetizable public benefits
Health: heavily weighted negative factor if applicant has any medical condition that might require extensive medical treatment and does not have private health insurance or financial resources to pay for reasonably foreseeable medical costs [we can call these “pre-existing conditions”]
A lower/poor credit score/negative credit history is a negative factor
Receiving a fee waiver for an immigration benefit is a negative factor

Impact of Proposed Regulation

+ all the meetings that advocates and stakeholders had with the Office of Management and Budget (OMB) were effective in changing DHS’ finding that this proposed regulation would have economic impacts over $100 million, requiring the additional detailed analysis of economic and regulatory impact now provided in the DHS draft (page 276)

+ DHS estimates that 382,000 applicants for green cards would be subject to this new public charge test each year (mainly those seeking “adjustment of status” who are already living in the U.S.)(Table 40, page 300); this is a very low estimate that does not account for any chilling effects

+ DHS estimates that immigrants would lose up to $22.7 billion in federal and state benefits (over 10 years) because they dis-enroll from programs they are eligible for ($1.5 billion in federal benefits,[10] $0.76 billion in state benefits each year, Table 1, page 20); these also are low estimates

+ DHS estimates costs of up to $129 million each year for immigrants and non-immigrants to complete the new paperwork and documentation requirements (page 13); for example, DHS estimates that applicants will need to pay $7.6 million/year for the now-required credit reports (Table 47, page 332)

+ there is language throughout the DHS draft of the proposed regulation that the public benefits being added to the list are programs for which applicants are eligible for, and relate to “basic necessities of life” and a “basic living need” such as nutrition, medical care, and housing (pages 97,118, 121, 134)

+ the DHS draft admits that the proposed regulation “may decrease disposable income and increase the poverty of certain families and children, including U.S. citizen children” (page 387), and lead to “worse health outcomes, including prevalence of obesity and malnutrition, especially for pregnant and breastfeeding women, infants, or children, and reduced prescription adherence; increased use of emergency rooms and emergent care as a method of primary health care due to delayed treatment; increased prevalence of communicable diseases, including among members of the U.S citizen population who are not vaccinated; increases in uncompensated care in which a treatment or service is not paid for by an insurer or patient; increased rates of poverty and housing instability; and reduced productivity and educational attainment” (pages 370-371)

+ DHS also admits that the proposed regulation “might result in reduced revenues for healthcare providers participating in Medicaid, pharmacies that provide prescriptions to participants in Medicare Part D low-income subsidy program, companies that manufacture medical supplies or pharmaceuticals, grocery retailers participating in SNAP, agricultural producers who grow foods that are eligible for purchase using SNAP benefits, or landlords participating in federally funded housing programs” (pages 366-367)

Other Proposed Changes Related to the Public Charge Test

+ increases scrutiny and requirements for affidavits of support from “sponsors” of applicants for lawful permanent residence (still required in addition to all the other changes); questions will include closeness of relationship to applicant, whether living with the applicant, how many other affidavits of support have been filed by the sponsor, and calling in the sponsors for interviews and requiring responses to requests for more documentation (page 207)

+ the DHS draft includes changes to the public charge bond, which DHS may require for applicants who “fail” the public charge test (where negative factors outweigh positive factors);[11] these bonds will be a minimum of $10,000 each (bonds in higher amounts could be required); such bonds are “breached” and the entire amount of the bond is forfeited if the immigrant receives any of the expanded list of public benefits after posting the bond

+ the proposed public charge test also would be used for applications, extensions, and changes in status for “non-immigrants” (e.g. foreign students, temporary workers, etc.); however, most of these non-immigrants are either outside the U.S., or are not eligible for the listed public benefits

For more information and resources on this issue, please consult the national Protecting Immigrant Families campaign.

[1] https://www.dhs.gov/news/2018/09/22/dhs-announces-new-proposed-immigration-rule-enforce-long-standing-law-promotes-self

To highlight how complicated this all is, DHS estimates that it would take 8 to 10 hours just to read the proposed rule (page 17)

[2] However, in providing example scenarios of how the new public charge test would be used, the DHS draft uses an effective date of January 1, 2019 (page 226+), which is only about 3 months from now, shorter than 60 days for public comment + some number of days/weeks to review and respond to the public comments and prepare a final regulation + effective date 60 days after publication of final regulation; while January 1, 2019 would be too early for an effective date, it indicates that DHS intends to move to finalize this proposed regulation as soon as it can

[3] In January 2018, the Department of State made changes in its Foreign Affairs Manual (FAM) to broaden the inquiry about public charge for applicants for lawful permanent residence who are applying for their green cards from outside the U.S. (at U.S. embassies and consulates): https://www.nilc.org/wp-content/uploads/2018/02/PIF-FAM-Summary-2018.pdf

While there have been some requests for more documentation from applicants at some consulates, the full impact of these changes is still being analyzed; additional analysis also is needed on how the DHS draft aligns with the changes in the FAM

[4] https://aspe.hhs.gov/poverty-guidelines

[5] There is an exemption to this negative factor for active duty military servicemembers and their families (pages 137-138)

[6] It is not clear how this 36 month look-back period will be implemented when there is other language in the proposed regulation that the change would only be prospective, effective 60 days after the publication of a FINAL regulation (this will be very confusing)

[7] The proposed regulation creates a new definition of “household” that is different than the definitions used by the Internal Revenue, U.S. Department of Agriculture (for SNAP), and the Department of Housing and Urban Development (page 149-152); this will be unnecessarily confusing and complicated

[8] If true, this will create opportunities for state-level responses, both to oppose the proposed regulation as a cost-shift to the states, and to put in place contingency state-only programs)

[9] There will be no additional filing fee for the new form I-944 but DHS estimates that it will take four and half hours to complete (page 333) so we can expect many questions about all the totality of circumstances factors and receipt of any public benefits

[10] In extremely detailed analysis, DHS estimates that 142,000 individuals would dis-enroll from Medicaid, 129,000 from SNAP, and 26,000 from Medicare Part D subsidies each year, at an estimated dis-enrollment rate of 2.5% of those now eligible and receiving these public benefits (pages 361-336; Table 51, page 363); the methodology for these very conservative estimates needs additional analysis

[11] Curiously, DHS estimates that it will only offer 960 applicants a year the opportunity to post such public charge bonds (page 350); this very low number means that DHS intends to deny admission to most applicants who “fail” the proposed public charge test rather than offering them the opportunity to post a public charge bond

Posted in Ignatius Bau: Policy Analysis, Immigrant and Refugee Health, Immigration Law Reform, The iBau Blog | Leave a comment

Trump v. Hawaii: U.S. Supreme Court Upholds Trump’s Muslim Travel and Immigration Ban

In a divided 5-4 decision, the U.S. Supreme Court has upheld President Donald Trump’s Muslim travel and immigration ban. Chief Justice John Roberts authored the majority opinion, reversing the multiple rulings in lower federal courts that the Muslim ban exceeded the executive branch’s authority under immigration law and was an unconstitutional policy based on discrimination against Muslims. While quoting President Trump’s statements and tweets both during his presidential campaign and as President clearly stating that he intended to ban all Muslims from the U.S., the Chief Justice disregards all these statements and tweets:

“Plaintiffs argue that this President’s words strike at fundamental standards of respect and tolerance, in violation of our constitutional tradition. But the issue before us is not whether to denounce the statements. It is instead the significance of those statements in reviewing a Presidential directive, neutral on its face, addressing a matter within the core of executive responsibility. In doing so, we must consider not only the statements of a particular President, but also the authority of the Presidency itself. ”

What the Chief Justice finds is, that as long as there are other rationales eventually proffered by executive departments such as the Department of Homeland Security, however weak or belated, the President’s own statements should not be considered as evidence of intent for an executive order.

In her dissent, Justice Sonia Sotomayor critiques this undue deference to executive authority:

“The United States of America is a Nation built upon the promise of religious liberty. Our Founders honored that core promise by embedding the principle of religious neutrality in the First Amendment. The Court’s decision today fails to safeguard that fundamental principle. It leaves undisturbed a policy first advertised openly and unequivocally as a ‘total and complete shutdown of Muslims entering the United States’ because the policy now masquerades behind a façade of national security concerns.

But this repackaging does little to cleanse Presidential Proclamation No. 9645 of the appearance of discrimination that the President’s words have created. Based on the evidence in the record, a reasonable observer would conclude that the Proclamation was motivated by anti-Muslim animus. That alone suffices to show that plaintiffs are likely to succeed on the merits of their Establishment Clause claim. The majority holds otherwise by ignoring the facts, misconstruing our legal precedent, and turning a blind eye to the pain and suffering the Proclamation inflicts upon countless families and individuals, many of whom are United States citizens. Because that troubling result runs contrary to the Constitution and our precedent, I dissent.”

Justice Sotomayor also pointed out the hypocrisy of the majority that recently ruled in the Masterpiece Cakeshop v. Colorado Civil Rights Commission that “even slight suspicion” of religious animus toward a Christian (who refused service to a gay couple because of his anti-gay religious beliefs) was enough to be unconstitutional:

“…unlike in Masterpiece, where a state civil rights commission was found to have acted without ‘the neutrality that the Free Exercise Clause requires,’ the government actors in this case will not be held accountable for breaching the First Amendment’s guarantee of religious neutrality and tolerance. Unlike in Masterpiece, where the majority considered the state commissioners’ statements about religion to be persuasive evidence of unconstitutional government action, the majority here completely sets aside the President’s charged statements about Muslims as irrelevant. That holding erodes the foundational principles of religious tolerance that the Court elsewhere has so emphatically protected, and it tells members of minority religions in our country ‘that they are outsiders, not full members of the political community.’ ”

And then Justice Sotomayor concludes her dissent by drawing the stark parallels between today’s decision and the “gravely wrong” Korematsu v. U.S. decision that upheld the incarceration of 120,000 Japanese Americans based on dubious, and ultimately disproven, national security rationales:

“Today’s holding is all the more troubling given the stark parallels between the reasoning of this case and that of Korematsu v. United States (1944). In Korematsu, the Court gave ‘a pass [to] an odious, gravely injurious racial classification’ authorized by an executive order. As here, the Government invoked an ill-defined national security threat to justify an exclusionary policy of sweeping proportion. As here, the exclusion order was rooted in dangerous stereotypes about a particular group’s supposed inability to assimilate and desire to harm the United States. As here, the Government was unwilling to reveal its own intelligence agencies’ views of the alleged security concerns to the very citizens it purported to protect. And as here, there was strong evidence that impermissible hostility and animus motivated the Government’s policy….

In the intervening years since Korematsu, our Nation has done much to leave its sordid legacy behind. Today, the Court takes the important step of finally overruling Korematsu, denouncing it as ‘gravely wrong the day it was decided.’ This formal repudiation of a shameful precedent is laudable and long overdue. But it does not make the majority’s decision here acceptable or right. By blindly accepting the Government’s misguided invitation to sanction a discriminatory policy motivated by animosity toward a disfavored group, all in the name of a superficial claim of national security, the Court redeploys the same dangerous logic underlying Korematsu and merely replaces one ‘gravely wrong’ decision with another. Our Constitution demands, and our country deserves, a Judiciary willing to hold the coordinate branches to account when they defy our most sacred legal commitments. Because the Court’s decision today has failed in that respect, with profound regret, I dissent.”

Link to Original Source

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United States of Care: Bipartisan Leaders Launch New Health Care Reform Organization

Over 50 bipartisan health care leaders, including many former elected and appointed federal and state officials, have launched a new non-profit organization called the United States of Care to support continued health care reform, including former Health and Human Services Secretary Mike Leavitt and former Centers for Medicare and Medicaid Services (CMS) Administrator Mark McClellan under President George W. Bush, former Health Care Financing Administrator Gail Wilensky under President George H. W. Bush, former Republican Senate Majority Leader Bill Frist, former Vermont Governor Jim Douglas (Republican); and former Office of Management and Budget Director Peter Orzag, Senior Health Care Advisor Chris Jennings, and former Acting CMS Administrator Andy Slavitt under President Barack Obama, former Democrat Majority Leader Tom Daschle, and former Kentucky Governor Steve Beshear (Democrat).

The mission of the organization is “to lead a movement to ensure that every single American has access to quality, affordable health care regardless of health status, social need, or income.” Its three core principles are: 1) every American should have a regular source of affordable care; 2) no American should face financial devastation due to illness or injury; and 3) solutions must be fiscally responsible and have broad political support.

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University of California v. Department of Homeland Security: District Court Orders Temporary Reinstatement of Deferred Action for Childhood Arrivals (DACA) Program

In two written opinions issued last week, the U.S. District Court in Northern California has ordered the temporary reinstatement of the Deferred Action for Childhood Arrivals (DACA) program while pending further litigation. The DACA program was rescinded by President Donald Trump on September 5, 2017, and the University of California; the states of California, Minnesota, Maine, and Maryland; the city of San Jose, the county of Santa Clara and the Service Employees International Union Local 521; and six individual DACA recipients, filed lawsuits challenging the rescission.  The five lawsuits were consolidated and heard together by U.S. District Court Judge William Alsup. (There are additional lawsuits challenging the rescission of the DACA program being litigated in New York and the District of Columbia, with none of those lawsuits yet to reach any decisions.)

In the first order issued last Tuesday, Judge Alsup reviewed the history, beginning in 1975,  of the use of “deferred action” to provide discretionary relief from deportation to both groups and individuals by the Department of Homeland Security (DHS), and the specific establishment of the DACA program by President Obama in 2012. Judge Alsup noted that both Congress and the U.S. Supreme Court had recognized and referred to deferred action status. The Department of Justice (DOJ) had provided its legal analysis that such a program was within the discretionary authority of the DHS to establish immigration enforcement priorities, including who NOT to pursue for deportation. It also is significant that the Secretary of Homeland Security in 2012, Janet Napolitano, is currently the President of the University of California, which is the named lead organizational plaintiff in one of the four consolidated lawsuits being heard by Judge Alsup.

Judge Alsup noted that President Trump’s first Secretary of Homeland Security (now White House Chief of Staff) John Kelly twice reviewed and twice left the DACA program in place while reviewing all immigration policies from the prior administration in February 2017 and in formally rescinding the 2014 Deferred Action for Parents of Americans (DAPA) program in June 2017. There has been extensive litigation already about whether the DHS needed to provide additional documentation to the plaintiffs (and the court) about the rationale for rescinding the program, beyond a short memorandum by current Attorney General Jeff Sessions stating that there was no statutory authority for the program and citing the injunction and subsequent litigation against the DAPA program, which blocked its implementation. The DOJ and DHS resisted such discovery and instead identified but withheld 84 documents from the plaintiffs and the court, claiming executive privilege. The court ordered the DOJ and DHS to provide the documents (which the Ninth Circuit Court of Appeals upheld on emergency appeal) but in an extraordinary ruling in early December, the U.S. Supreme Court overturned that discovery order (with four justices dissenting).

In his opinion and order, Judge Alsup first finds that the court has jurisdiction over the case and that the plaintiffs have standing to bring the legal challenges (except for two states not having standing on one claim). The court then finds that Attorney General Sessions’ memorandum cannot reverse decades of agency practice and policy, recognition by Congress and the U.S. Supreme Court of DHS’ authority to provide deferred action, and the DOJ’s prior legal analysis; and that Sessions had made a “mistake in law”. Judge Alsup also rejects the federal government’s post-hoc rationalization that it was seeking to minimize litigation risks since the states that had successfully challenged the DAPA program had threatened to now challenge the DACA program as well.

Finally, Judge Alsup finds that the plaintiffs are likely to succeed in their argument that the rescission was arbitrary, capricious, and abuse of discretion, or otherwise not in accordance with law (in violation of the Administrative Procedure Act); that the DACA recipients and plaintiffs would suffer irreparable harms from the implementation of the rescission; and that the balance of equities and public interest favor the plaintiffs. Judge Alsup notes the irony of President Trump’s tweets in support of the DACA recipients, while his administration’s actions have created the harms he tweets against. Accordingly, the court orders the provisional reinstatement of the DACA program, pending full litigation of all the claims, which is unlikely to be completed by March 5, 2018, when current DACA recipients would begin to lose their protection from deportation and work authorizations.

In a follow-up order issued last Friday, Judge Alsup dismissed some claims and is ordering further litigation on the remaining claims (denying the federal government’s motion to dismiss those claims). In this second order, Judge Alsup relies even more explicitly on the President’s statements and tweets as relevant to the litigation, including as evidence of impermissible racial animus towards Mexicans (who are 93 percent of DACA recipients), which would support the plaintiffs’ claims of racial discrimination in violation of the equal protection clause of the Fourteenth Amendment.

The Trump administration has yet to file an appeal, or seek a stay, of these district court orders at the Ninth Circuit Court of Appeals (and all the way to the U.S. Supreme Court), but it is certain to do so (the district court itself identifies a number of issues that would be subject to appeal).

Meanwhile, on Saturday, the U.S. Citizenship and Immigration Services (USCIS) announced that it would resume acceptance of renewals of DACA status (for those whose status had technically lapsed after the September 5 rescission announcement), but would not be accepting any new applications for the DACA program. The announcement is also available on the USCIS website in Spanish.

Given the ongoing Congressional proposals and negotiations about the status of DACA recipients and President’s Trump’s racist statements about Haitians and Africans on Thursday, there will continue to be more developments about the future of these hundreds of thousands of young immigrants.

 

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Centers for Medicare and Medicaid Services: Nearly 9 Million Americans Obtained Health Insurance in Shortened Open Enrollment Period

The Centers for Medicare and Medicaid Services (CMS) has released preliminary data on the recently-concluded shortened open enrollment period for Americans to obtain health insurance through the health insurance marketplaces established by the Affordable Care Act: over 8.8 million Americans will now be insured in 2018, including nearly 2.4 million Americans who did not use the marketplace in 2017. These numbers are particularly impressive given the shortened 7-week open enrollment period, a 90% reduction in marketing and outreach activities, a 41% reduction in contracts for community navigators to assist individuals with the enrollment process, and the continued political attacks on the ACA by the White House and political appointees at the U.S. Department of Health and Human Services who are statutorily charged with implementing the law.

Not surprisingly, the press release issued by CMS downplays the number of Americans benefitting from the ACA-established health insurance marketplace, and instead focuses on the cost savings in reducing the expenditures on marketing and outreach, and highlights data on wait times to the call center.

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Congressional Budget Office: Repeal of Individual Mandate in Tax Reform Bill Would Result in 13 Million Americans Becoming Uninsured

The Congressional Budget Office (CBO) has issued this updated analysis of the impact of the repeal of the Affordable Care Act’s individual mandate, which was included in H.R. 1, the Tax Cuts and Jobs Act passed by the U.S. House of Representatives on November 16, 2017. The CBO estimates that the repeal of the individual mandate would result in an additional 13 million Americans becoming uninsured over the next ten years, by the year 2027. Moreover, without a requirement to purchase health insurance, less Americans would do so, and health insurance plans would increase premiums to account for a less healthy overall risk pool (with less healthy, lower cost individuals in the market).  Accordingly, the CBO also estimates that health insurance premiums in the individual health insurance market would increase about 10% each year. Those increases in premiums also will disincentivize Americans to maintain or purchase health insurance, which also will increase the number of uninsured.

The Senate is expected to vote on the tax reform bill sometime this week.

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Congressional Budget Office: Bipartisan Health Care Stabilization Act Would Reduce Federal Deficit by $3.8 Billion

The Congressional Budget Office (CBO) has published its analysis of the Bipartisan Health Care Stabilization Act, co-sponsored by Senators Patty Murray (D-WA) and Lamar Alexander (R-TN). Since the CBO had already done analysis of other legislation that either continued or discontinued the cost-sharing reduction payments to health insurance plans participating in the health insurance marketplaces, there is no new analysis of fiscal impacts from restoring those payments through 2019. However, the provisions in the bill that require states to certify financial benefit to the federal government and consumers from the payments would likely result in some rebates to consumers and lower payments to the health plans. In addition, the provision in the bill that expands the availability of “copper” plans with basic catastrophic coverage (at lower premiums) means lower costs for federal premium subsidies. Accordingly, the CBO also estimates that, over ten years, the bill would lower federal expenditures and reduce the federal deficit by $3.8 billion.

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Text of Bipartisan Health Care Stabilization Act

Here is the text of the Bipartisan Health Care Stabilization Act, co-sponsored by Senators Patty Murray (D-WA) and Lamar Alexander (R-TN), that would appropriate funding for cost sharing reduction (CSR) reimbursement payments to health insurance plans participating in the health insurance exchanges established under the Affordable Care Act (ACA). A federal district court had agreed with House Republicans in May 2016 that the payments had to be appropriated each fiscal year and a federal appeals court has been waiting for the Trump administration to formally reverse its position in the litigation since the Obama administration had defended the legality of continuing to make the payments without annual appropriations. On October 12, the Trump administration finally announced that reversal in legal position and that it would no longer make those payments, effective immediately. California, 17 other states, and the District of Columbia have requested a federal court injunction to continue the payments.

The Murray-Alexander bill is also sponsored by Senators Tammy Baldwin (D-WI), Richard Burr (R-NC), Tom Carper (D-DE), Bill Cassidy (R-LA), Susan Collins (R-ME), Bob Corker (R-TN), Joe Donnelly (D-IN), Joni Ernst (R-IA), Al Franken (D-MN), Lindsey Graham (R-SC), Charles Grassley (R-IA), Maggie Hassan (D-NH), Heidi Heitkamp (D-ND), Johnny Isakson (R-GA), Angus King (I-ME), Amy Klobuchar (D-MN), Joe Manchin (D-WV), John McCain (R-AZ), Claire McCaskill (D-MO), Lisa Murkowski (R-AK), Mike Rounds (R-SD), and Jeanne Shaheen (D-NH).

The bill would provide funding for the CSR payments through 2019 , and states accessing the payments would be required to certify that both health care consumers and the federal government are financially benefiting from the payments of the CSRs that are made to health insurance plans participating in the ACA health insurance marketplaces, to avoid the criticism that the payments are “bailouts” to the health plans. Most health economists agree that the CSRs keep more Americans insured by making health insurance more affordable, which expands the overall risk pool of insured, which allows the health plans to keep premiums and cost-sharing lower. Conversely, without the CSRs, more Americans would become uninsured because they could not afford the premiums and cost-sharing, with shrinks the risk pool, which results in higher premiums and cost-sharing for the remaining insured, and more Americans needing the ACA tax credits to pay for those higher premiums (which results in a net increase in federal spending rather than any savings).

In a direct legislative override of President Donald Trump’s executive actions, the bill also would require that the Department of Health and Human Services (HHS) engage in outreach and education activities to support enrollment in the ACA’s health insurance marketplaces, and to report back to Congress about those activities. The Trump administration is reducing the amount spent on these outreach activities by 90% when the fifth, much shortened, open enrollment period (for health plan coverage year 2018) begins on November 1 (and ends on December 15), with the federal website unavailable for 12 hours every Sunday evening, when many applicants would ordinarily be using the website.

The bill also would make numerous amendments to section 1332 of the ACA, which allows “waivers” to states to implement alternate health insurance rules, as long as levels of coverage and affordability are maintained. The amendments would provide more flexibility than the original ACA (for example, to use a ten-year period to show cost neutrality rather than having to demonstrate cost neutrality every year) and would streamline and expedite the review, approval, renewal of such waivers.

The bill also would expand the availability of so-called “copper” level, or catastrophic coverage plans with lower premiums (since they provide only catastrophic coverage), and would instruct HHS to issue regulations about selling health insurance products “across state lines”, a favorite proposal of many Republicans (that ironically, almost all national, regional, and state health plans have never requested, or supported).

The bill does not reference any specific sources of federal revenues for the CSR payments; presumably since section 1332 waivers would still have to be cost-neutral, there would be no additional costs from expanding the number or types of those waivers.

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The Senate Health, Education, Labor, and Pensions Committee has prepared this section-by-section summary of the bill:

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A vote on the bill has yet to be scheduled in the Senate.

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