Archive for category: Immigration
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The letters are desperate.
“Please, help us obtain our freedom. … It’s so dangerous these days, we find ourselves between life and death. We don’t want to be the victims of this ruthless virus, and here, in these conditions, really it’s just a matter of time.”
“I’m going to ask to be deported. Because being locked in this place there’s no peace, not psychologically or emotionally.”
“The fact that we are migrants doesn’t give them the right to treat us like criminals. … I’ve been detained for five months in this center with my lung condition and problems with my liver. Do you think that proper nutrition for a sick person is bread and ham every day?”
“I’ve seen things and lived things that no other person should have to live through. They put me into quarantine to see if I was carrying Covid-19 and from there, they only took us out for 20 minutes to bathe and make a phone call … 14 days of quarantine.”
In June, women held at Eloy Detention Center, a private immigration prison in Arizona owned and operated by CoreCivic, began to write down what they were going through. The letter writers did so despite the threat of retaliation, because, they said, people had to know what was happening. “You can’t speak freely here,” one woman wrote.
The letters have gone out to clergy, lawyers, volunteers, and family members. At neighboring La Palma Correctional Center, advocates collected mass letters describing horrible conditions, fear of contagion, and reprisal by guards. Bob Kee has visited detainees at Eloy for years and gives out his number and address to many of the people he meets. When bimonthly community volunteer visits to the prison were suspended in early March, he got occasional phone calls from friends inside. Their accounts of the conditions alarmed him. He asked one woman he knew, “Will you write me a letter, and she said, ‘I will,’ then two weeks later I got this big manila envelope with 40-odd letters.” Kee and other advocates shared many such letters with me, on the condition that the women’s names not be used.
The mostly handwritten notes represent an archive of an ongoing crisis in immigration detention facilities in Arizona, where hundreds of immigrants and correctional staff have been infected with Covid-19. According to CoreCivic, 159 employees, or 50 percent of the total workforce at Eloy, have tested positive to date. One correctional officer has died of the disease.
Thirty-four detainees at Eloy are currently being monitored after testing positive, according to ICE statistics; in total, 252 people held at the facility have contracted the disease. That puts Eloy among the ICE facilities with the highest number of infections. La Palma, which is also operated by CoreCivic, has had 105 reported cases. The actual number may be higher: The Arizona Republic obtained internal emails saying that as of June 22, 270 detainees at Eloy had tested positive. CoreCivic said the figure was a typo.
“I’m going to ask to be deported. Because being locked in this place there’s no peace, not psychologically or emotionally.”
The letters were mostly written in mid-June and describe a spiraling panic beginning in late May. Many of the complaints were also outlined in a lawsuit lodged in early June arguing for the release of medically at-risk detainees at Eloy and La Palma: lack of medical attention and cleaning supplies, and guards reusing protective equipment and punishing people who speak out. The problems were compounded because so many guards were infected. The facility was so short-staffed that women — even those who were not being monitored for coronavirus symptoms — spent hours locked in their cells, denied hot food and any kind of freedom of movement.
When the guards locked them in, a woman who was recently released told me, they’d say, “You have to protect yourselves.” But, she said, “we don’t go anywhere, we’re locked in a cell. You’re the ones that are in the street, you’re the ones that have to be careful with people coming into the center. Obviously you’re the ones bringing in the virus, not us.”
A spokesperson for CoreCivic, Amanda Gilchrist, responded to a detailed list of the women’s claims, saying: “These are baseless allegations, and the claims simply do not reflect the affirmative, proactive measures to combat the spread of COVID-19 our facility has been taking for months. We care deeply for our hard-working, dedicated employees, as well as individuals in our care, and we’re committed to their safety.” ICE declined to comment.
Conversations with several currently detained women and with volunteers and advocates who are in touch with people still at Eloy confirmed that while the lockdowns have eased and conditions have improved a bit, at least for people who aren’t quarantined, people remain fearful and desperate for release.
“It’s still scary because what if someone is still sick?” one woman told me by phone this week. “We’re getting mixed together. The other day, everyone in the unit was in the yard together.”
A Cuban asylum-seeker in Eloy was put in a section of the prison with people who had tested positive earlier this month, after she went to the doctor with trouble breathing. She insisted that it was her asthma, and she responded to asthma medication, but her cellmate had tested positive, so she was forced to wait for her results with people who had been infected. ICE has refused to grant her parole on humanitarian grounds, despite several attacks in the last month.
“My health is not the best,” she wrote in a letter to a local advocate in Arizona a few weeks ago. “My fear is I’ll keep having these attacks. I just ask God to give me health.”
The Eloy Detention Center, a private prison owned by CoreCivic, houses detainees waiting the outcome of their deportation proceedings, July 9, 2019.
Photo: Norma Jean Gargasz/Alamy
“All the Workers Were Sick”
The spread of the coronavirus at Eloy seemed inevitable to the women held there.
“We can’t maintain social distancing because we have 50 women in each pod,” one woman wrote. “We touch the same things, the showers, microwave, chairs, tables, telephone.”
Keeping things sanitary was difficult. “We had to clean the cells with shampoo as chemicals were not provided to us,” one letter said. Several others added that the cleaning products they were given were diluted and ineffective. Correctional officers went from pod to pod, between the areas where people who had tested positive were being held in quarantine and the rest of the prison, without changing their protective gear. At mealtime, the food cart went between quarantined and nonquarantined areas. Multiple guards would reuse the same gloves and other gear, giving it a spray with disinfectant between rounds, the letters allege.
Medical attention, the women said, was terrible; there was none unless it was for Covid-19 symptoms, and in those cases, people were afraid that if they were thought to be infected, they’d be put into solitary. “When you get sick there, the only thing they tell you is ‘drink water,’ and ‘drink water,’ and ‘drink water,’ or maybe ‘take an ibuprofen and a lot of water,’” one woman told me.
“From what I’ve heard secondhand, you get no care when you get [Covid-19] in there,” said Kate MacNeil, a retired nurse who is a community advocate for people detained in Arizona. “It’s like being in solitary.” Multiple volunteers said they’d heard from people at Eloy and La Palma that even if they had symptoms, they would stay quiet about it because of how they’d be treated. A man held at Eloy told Mother Jones recently that while he was sick with the virus, he was held in isolation, had his temperature checked only sporadically, and was given only Tylenol and cough syrup after a week in isolation.
“Due to lack of staff to watch us the lockdowns are more frequent and longer. Many of us suffer from anxiety and claustrophobia.”
Setting aside the fear of contagion, women at Eloy suffered because of constant lockdowns and other deprivations because there were not enough staff. After the first positive cases were reported in late May, “everything seemed paralyzed during that time, no kitchen workers, no laundry workers, no maintenance, etc,” a Mexican woman wrote. The women were often locked in their cells for hours on end, with no access to the yard, commissary, library, telephones, or showers. “Saturday we were locked down 23 1/2 hours because there were only 2 officers for the whole unit, day and afternoon,” the Mexican woman reported.
“Due to lack of staff to watch us the lockdowns are more frequent and longer,” wrote another woman. “Many of us suffer from anxiety and claustrophobia.”
“They would tell us it was so we didn’t get infected, that it was better if we were in our cells,” said a Cuban woman, whom I will call Julia, who was released at the end of June. She asked not to be identified for fear of jeopardizing her asylum case. “But the truth was that they didn’t have workers. All the workers were sick.”
The women were told that they couldn’t have hot meals and received ham and cheese sandwiches, sometimes with an apple or some cookies, for three meals a day. A boiled egg in the morning, maybe a packaged burrito. Julia said that for two months she ate nothing but sandwiches.
“Sometimes they don’t even have ham, only cheese and bread. Sometimes they give us the bread with mold on it,” a letter writer noted. She also took issue with the guards’ lack of precautions moving between different parts of the prison. “When they bring the food cart knowing Charlie 100 has people with Covid-19 why would they put the food cart in their tank and then bring it in 200, 300, 400, 500?”
Two women I spoke with last week said that kitchen workers had just started up again, and that they now had one hot meal a day. “We’re still getting the boxes in the morning and for dinner,” one of them said. (CoreCivic said that hot meals had resumed on July 16.)
People who complained or pushed back faced retribution, several of the letters allege. Women were sent to solitary after refusing to take food they believed could have been contaminated because it came from an area under quarantine.
The letters echo the alarms raised by correctional staff at Eloy in recent weeks. A correctional officer who resigned in June following the death of his co-worker told the Arizona Republic that officers were told to ration masks and gloves, to wear garbage bags with holes cut in them as protective gear, and to keep working when they showed symptoms. The officer said that staff “who showed signs of fever were told to sit in a tent next to a swamp cooler until their temperature came down.” Many of the details of the guards’ allegations line up with the detainees: short-staffing, reused gear, watered-down cleaning products. There was little transparency, the guards said, when a staff member or detained person tested positive, putting those who had been in contact with them at risk.
“There was no information given in any of the briefings that we had about any of the pods that had positive cases in them,” Nicholas Berg, a guard who quit in early June, told the Republic. The guards also said the same things as the detainees about slow medical attention due to staff shortages, and that they often just told people to drink water.
“They take pictures when they hand out shampoo but things aren’t really like that.”
CoreCivic denied almost every detail of both the guards’ and detainees’ accounts, saying that there were adequate cleaning supplies, masks, and gloves, and that guards were required to remove their protective gear when leaving units housing people who had tested positive. The company disputed the women’s description of lockdowns, saying that they had not been confined to their cells or had their movement and privileges restricted for long periods of time.
Speaking to Congress on July 13, CoreCivic CEO Damon Hininger explained the outbreak at Eloy as reflective of “a little bit of an uptick” in overall cases in Arizona. He also denied that pepper-spray had been used at CoreCivic facilities, despite several well-documented incidents. He then had to walk back the claim.
“Have we been perfect? Absolutely not,” Hininger said, but added, “I feel good that we’ve made the appropriate investments along the way.”
Multiple letters insisted that ICE and CoreCivic were not telling the truth about conditions at the center. “The people from ICE say that everything that’s been happening is under control, but it’s a lie, because every day there are more people infected,” one woman wrote. “They take pictures when they hand out shampoo but things aren’t really like that.”
Private prison operators and their federal clients tend to play a game of passing the buck, with people inside as with the media. A woman held at Eloy wrote that when she tried to complain to a visiting ICE officer, the official said, “Well good luck, because we ICE officers are in charge only of your cases, and CoreCivic is in charge of your safety.”
At least 15 people have died while in custody at Eloy since 2003, including five suicides. “The food, the lack of medical care has always been a problem at Eloy,” said Kee, who organizes a fund to provide bond, supply commissary accounts, and buy phone cards for people detained there. “Care has always been horrible, and now it’s even worse.”
A boy wearing a mask waits inside a truck with a banner reading “free them all” after a caravan protest around Immigration and Customs Enforcement El Paso Processing Center to demand the release of ICE detainees due to safety concerns amidst the COVID-19 outbreak on April 16, 2020 in El Paso, TX.
Photo: Paul Ratje/AFP via Getty Images
“They Don’t Want to Release People”
According to the agency’s latest figures, 3,780 people have tested positive for Covid-19 while in ICE custody, and three people have died. Advocates say ICE’s tally of positive tests likely undercounts the virus’s spread, given the lack of large-scale testing and frequent detainee transfers.
There are 22,142 people in ICE custody in facilities around the country. That’s a drastic drop from prepandemic levels, which ICE attributes to a combination of factors, including fewer people taken into custody along the border. The U.S. has invoked the pandemic to justify pushing almost everyone, including children, immediately back into Mexico. As The Intercept has reported, continuing deportations have certainly helped spread the coronavirus to the Caribbean and Latin America.
ICE claims that it takes medical vulnerabilities into account when determining whether to detain someone and that it has released hundreds of people who are at heightened risk. But in many cases, it’s taken lawsuits to force the agency’s hand.
For the people inside, ICE can’t move fast enough. Cecilia Valenzuela, who does humanitarian work at Eloy and La Palma, said that a Venezuelan woman she is helping was granted withholding of removal — a status that keeps her from being returned to a country where she fears persecution — three months ago. But ICE had appealed the judge’s decision and so she simply has to wait in jail.
“The people who have bond, give them their bond,” said Julia, the Cuban woman. “Get them out. The sick people, give them humanitarian parole.”
“I had my bond hearing on June 11. And my partner, thank God, was already out. He got out before I did, and he paid my bond. He had to call and call because 13 days went by, and they didn’t put me in the system because everyone was in quarantine,” she told me.
“The problem is that they don’t want to release people. They always try to keep them in,” her partner added.
Julia said she was in touch with family members of some of the women she knew at Eloy. “It’s still bad,” she said. “Just yesterday I heard about a woman who was with us, and she had her court date in July. For asylum. She had her court date in July and they moved it to August, and yesterday I learned that she has coronavirus.”
Julia and her partner are free now, staying with friends in Arizona, and they wish the same for all the other immigrants they were held with. “They should give them a chance,” Julia’s partner said. “Inside, when one person gets infected, they’re going to all get infected, because everyone is hermetically sealed in there.”
“Breathing the same air. Everyone,” Julia finished his sentence.
The post Letters From ICE Detainees Expose Desperate Prison Conditions Amid Coronavirus Pandemic appeared first on The Intercept.
Founded with CIA money, Palantir is the paragon of surveillance capitalism — and is finally ready to cash in
In a recent report, the Ohio Immigrant Alliance stated that the Morrow County Correctional Facility in Mt. Gilead is the first county jail in the state to be 100 percent COVID-positive. The jail, holding local prisoners as well as Immigration and Customs Enforcement detainees, is also the first 100 percent COVID-positive ICE detention center in the U.S.
The Alliance accuses jail authorities of failing to follow their own protocols as well as ICE standards.
According to the Alliance report, “None of the inmates and detainees at Morrow County have been seen by a doctor in the facility, despite their COVID diagnoses. Nursing staff are not present at the jail overnight or on the weekends, and even when they are there, they often decline to provide health care, including Tylenol. Jail staff have repeatedly refused to call an ambulance for detainees in serious distress.
The post Release The Prisoners: Ohio Jail 100 Percent Positive For Covid appeared first on PopularResistance.Org.
NEW YORK—When Soraida and her husband experienced Covid-19 symptoms in mid-March, no one at the New York City hotlines, meant to direct residents to testing sites, answered their calls for support. After several days, an operator finally offered them a testing appointment in Queens—miles away from their Bronx apartment—on the condition they get there by car, rather than public transportation. But they didn’t have a car.
“We didn’t have money at the time,” says Soraida, an immigrant who arrived in the Bronx 20 years ago from Mexico. “None of us were working, and we’ve had to pay for the Tylenols and the remedies we needed to fight off the virus out of our own pocket.” Soraida and her family eventually recovered, but their story is distressingly common.
The pandemic has exacerbated the United States’ underlying inequalities, right down to who has the means and ability to get tested for Covid-19. Poor people and people of color have been disproportionately impacted.
In response, local and grassroots groups are filling a healthcare void too often left by governments.
Various nonprofits and churches throughout the country, for example, are offering free Covid-19 testing—necessary to control the spread of the disease—to anyone who wants it. The country’s overall testing capacity has lagged throughout the pandemic. By the third week of April, the United States was performing about 150,000 tests per day; experts had said several times that figure would be needed to curb the spread.
Testing has ramped up sharply since April, but experts are still warning that a lack of national coordination is hampering a recovery. The federal government still has not introduced a national contact-tracing program to inform people of their potential exposure, a key mechanism to slow the spread of the coronavirus.
Project Vida is a health nonprofit in Chicago’s Little Village neighborhood, home to the city’s largest Mexican immigrant community. Latinos have the highest Covid-19 infection rate in Illinois. Seeing an urgent need to test in Little Village, Project Vida members threw themselves into the work. “Our first day of testing was April 16, and I felt that it was already too late,” says Jerome Montgomery, the group’s executive director.
While Project Vida does not ask for its clients’ immigration status, Montgomery estimates nearly 75% of the 3,000-plus people tested so far are undocumented. There are now at least 10 testing sites near Little Village, but hundreds of testing sites are needed to stop the spread of the virus in Chicago, Montgomery says. Chicago has fewer than 100 total testing sites.
Up to 60% of the individuals who have tested positive by Project Vida have been asymptomatic, illustrating the importance of widespread testing—because people can spread the disease without knowing they have it.
According to the Centers for Disease Control and Prevention, one of the primary factors fueling coronavirus disparities is the institutional racism inherent in housing segregation. People of color tend to reside in neighborhoods far from medical facilities, which drives contagion and hinders access to care.
This reality is deeply felt in places like Brooklyn, one of the country’s largest Covid-19 hotspots. Starrett City, a series of Brooklyn housing projects primarily home to African Americans, is New York’s hardest-hit neighborhood. Already battered by one of the highest crime rates in New York, Starrett City has also been left behind in the pandemic response.
New York opened the closest testing site for Starrett City residents April 17, long after the pandemic had begun ravaging the community—and it’s a half hour away by public transportation.
Two area churches (Key to Heaven Tabernacle Church and the Franco-Haitian Ministries) have tried to fill the testing gaps in Brooklyn—receiving support from Northwell Health, a large nonprofit health provider—by offering free testing for one week in June. But they are still about a half hour away by bus from Starrett City. (A total of 49 churches in New York are included in the overall program.)
People of color are still testing positive for Covid-19 at two to three times the rate of New York City’s average, according to Debbie Salas-Lopez, spokesperson for Northwell Health. Clearly, more intervention is needed.
Considering that many experts expect a second wave of coronavirus in the coming months, people of color will remain the most affected by the pandemic as states ease their coronavirus restrictions. Members of immigrant families like Soraida’s will still get sick, and possibly die, with little federal support for testing and contact-tracing programs.
Photograph by Nathaniel St. Clair
The spread of COVID-19 to immigrant detention facilities poses a mortal danger to everyone who is unjustly detained. For months now advocates, organizers and those detained have urged elected officials and governmental agencies to take affirmative steps to prevent needless deaths and suffering inside immigrant detention facilities.
Despite the spread of COVID-19 in these facilities, and the threat it poses to those detained, facility staff, and surrounding communities, U.S. Immigration and Customs Enforcement (ICE) has refused to exercise its legal discretion to release those detained and save lives. By some estimates ICE has chosen to release less than 2% of those held in its inhumane jails. In California the situation is compounded as the majority of those detained are held in facilities operated by for-profit corporations with an egregious record of negligence and misconduct.
In an attempt to shed light on these horrific circumstances, immigrants in detention in California have launched coordinated hunger strikes, calling attention to their plight, the death of their fellow detainees, and support for the Black Lives Matter movement. These acts of heroic resistance have been coordinated with and supported by community members, advocates and organizers.
In response, ICE and their for-profit henchmen have undertaken a vicious campaign against activists in detention, retaliating against them with acts of violence and seeking to delegitmize their words and actions in the press. This includes using pepper spray against detainees who have peacefully protested or refused to sign a legal waiver in order to obtain masks, as well as threatening those who have taken part in hunger strikes.
In addition to threats of violence against detainees, ICE has sought to undermine resistance in detention facilities by making outlandish claims that detainees have been coerced into hunger strikes or that advocacy on the issue “exploits the plight of detainees”. In recent weeks ICE has blocked phone calls between local advocates and those in detention in order to sever communication and coordination with the outside world.
These actions are a blatant attempt to silence the free speech and expression of those detained, and a cruel attempt to sever the strong ties and solidarity that has developed between those in detention and their community of supporters. These cruel acts demonstrate just how desperate ICE is to stamp out the flames of organized resistance.
The simple truth is that ICE will do everything in its power to avoid admitting the most basic truth, that its detention system is unnecessary, unjust and inhumane. ICE’s unwillingness to release individuals is based solely on the fact that it does not want to acknowledge that it has the power to do so, and has always had this power, and does not need to detain immigrants in the manner and at the rate in which it does. ICE would rather facilitate mass deaths in its detention facilities than threaten the multibillion-dollar detention infrastructure it has built.
We condemn ICE’s retaliation against detainees who have organized in resistance and who continue to lead a brave struggle to protect their lives and assert their humanity. We demand that ICE cease all forms of retaliation against those detained, restore phone access at the Otay Mesa detention facility, and free all those who are unjustly and needlessly detained.
We call on elected officials to intervene to protect the civil and human rights of those in ICE custody, and demand a full and independent investigation into the cruel and inhumane actions that continue to take place in these facilities.
Bianca Sierra Wolff is the Executive Director of the California Collaborative for Immigrant Justice.
Lisa Knox is the immigrant rights managing attorney at Centro Legal de la Raza.
The post ICE is Leaving Immigrants to Die in Detention, and Retaliating When They Speak Out appeared first on CounterPunch.org.
On Monday, President Donald Trump extended a near-total ban that he had first announced in April on entry into the United States by immigrants seeking “green cards” for permanent residency. This policy is the most sweeping ban on immigration in American history. Even during earlier crises, such as the Great Depression, the two world wars, and the horrific flu pandemic of 1918–19, the U.S. did not categorically ban the entry of virtually all migrants seeking to settle here permanently. The newly expanded version of the policy also severely restricts temporary work visas.
The official justifications for these policies are the prevention of the spread of the coronavirus pandemic and the protection of American workers from wage competition. Neither rationale can justify such a sweeping restriction on immigration. Even more troubling, the order is a large-scale executive-branch power grab that sets a dangerous precedent. It makes a mockery of conservative jurists’ insistence that there are constitutional limits to the amount of authority Congress can delegate to the executive.
Although the administration’s initial ban was presented as temporary, lasting for only 60 days, many officials, led by Stephen Miller, the administration’s most influential adviser on immigration policy, would like to continue it indefinitely. On June 22, Trump extended the green-card ban until the end of the year, and expanded it to cover H-1B visas as well as other temporary-employment visas. The same reasoning that supposedly justified the initial 60-day ban has now been used to justify a much longer and more wide-ranging one that can easily be extended still further.
Among the victims are American citizens who have already waited years to be reunited with relatives who are now trapped abroad. While the measure exempts spouses and children of U.S. citizens (if the children are under the age of 21), it still bars siblings, parents, and other relatives. The administration has compounded the injustice by blocking almost all asylum applications from refugees trying to cross the border, despite the fact that such a measure violates both American and international law, which forbid the expulsion of refugees facing persecution based on race, religion, political opinions, and other similar categories in their countries of origin. Recently issued regulations compound the injustice by categorically denying asylum to women fleeing gender-based persecution and indefinitely extending a rule mandating virtually automatic expulsion of unaccompanied minors crossing the border, including many fleeing horrific violence and abuse.
Combatting the coronavirus pandemic does not require a sweeping ban on immigration. Travel restrictions have done little to stop the spread of COVID-19, and United States already has extensive domestic “community spread.” Many potential immigrants would be coming from nations where the disease is actually less widespread than it currently is in the U.S.
In cases of would-be immigrants from nations where there has been a serious coronavirus outbreak, a less draconian and more effective alternative to blanket exclusion exists: Impose a 14-day quarantine on entrants from potentially dangerous areas. South Korea, which has done a far better job of constraining COVID-19 than the U.S. has, has adopted exactly that policy. Immigrants can be isolated until it is clear they do not have the virus.
A 14-day quarantine may be a deal breaker for tourists. But for immigrants, it is a small price to pay for the chance to live in a society that offers greater freedom and opportunity. And unlike migration restrictions, a regime of free migration with some targeted quarantine measures does not create a large population of undocumented immigrants, who in turn have strong incentives to avoid testing for the coronavirus, thereby facilitating the disease’s spread.
Severe restrictions on migration actually damage public health in the long run. Immigrants contribute disproportionately to medical care and innovation. The Trump order includes an exemption for current medical professionals, but not for scientists or those who might become medical workers after entering the country.
The wage-competition rationale for the new policy is equally specious. Economists consistently find that most Americans’ wages actually benefit from immigrant labor. That is the case even during times of severe recession and unemployment, such as the present. A study by the National Bureau of Economic Research found that the mass deportation of Mexican workers during the Great Depression did not result in increased wages for American workers, and may even have lowered them. Far from helping American workers, barring immigrants is likely to make the economy less productive. The recent expansion of Trump’s immigration ban to cover a wide range of work visas will damage to the economy further, particularly by reducing innovation, to which H1-B-visa recipients are important contributors.
At the very least, neither the coronavirus crisis nor the supposed wage effects can justify a categorical ban that applies to virtually all immigrants seeking permanent residency, regardless of their circumstances and regardless of whether the individuals in question pose any kind of public-health or economic risk.
Trump’s new immigration restriction is also a dangerous constitutional power grab. Like Trump’s earlier, more limited “travel bans,” the new policy relies on 8 U.S.C. Section 1182(f), which gives the president the power to bar entry into the U.S. by any foreign national he deems “detrimental to the interests of the United States.” In Trump v. Hawaii, the 2018 Supreme Court ruling that upheld Trump’s travel ban targeting several Muslim-majority nations, Chief Justice John Roberts’s majority opinion interpreted this language as giving the president virtually unconstrained power to exclude any foreigners for any reason, so long as he claims—even without evidence—that their entry might harm American “interests.”
Trump v. Hawaii did not consider the possibility that this view of Section 1182 violates the “nondelegation” doctrine: the principle that Congress cannot delegate sweeping lawmaking power to the executive. In last year’s ruling in Gundy v. United States, both liberal and conservative justices indicated the real limits on that delegation of power. In a dissenting opinion joined by two other conservatives, Justice Neil Gorsuch emphasized that the Constitution does not allow the president to exercise “the power to adopt generally applicable rules of conduct governing future actions by private persons.” Only Congress may do that. Justice Elena Kagan’s plurality opinion for the Court held that Congress may not give the president “‘unguided’ and ‘unchecked’ authority” to determine the scope of a law, especially when violations carry criminal penalties. Trump’s use of Section 1182 to impose a sweeping ban on immigration pretty obviously makes “generally applicable rules of conduct” for private parties—many millions of them. The recent extension and expansion of the policy applies these rules to even more people. Just as clearly, the idea that the president can exclude any potential immigrant for any reason, subject to the imposition of criminal penalties for violators, is a case of “‘unguided’ and ‘unchecked’ authority,” if anything is.
If we are serious about nondelegation limits on presidential power—as conservatives, in particular, claim we should be—then the courts must either strike down Section 1182 or rethink the broad interpretation of the law adopted in Trump v. Hawaii. For its part, Congress should consider repealing Section 1182, or at least imposing tighter limits on its scope. Unless and until that happens, Trump’s green-card and employment-visa bans will remain dangerous precedents for future presidents.