On June 22, President Donald TrumpDonald John TrumpIntelligence suggests Russian bounties led to deaths of several US troops in Afghanistan: report Obama called Philonise Floyd before brother’s memorial service: NYT President Trump tries to cover his tracks by attacking the rule of law MORE issued a proclamation that suspended the entry of nonimmigrant aliens who present a risk to the U.S. labor market following the coronavirus outbreak.
The proclamation also extended a previous proclamation that he had issued on April 22, which suspended the entry of certain aliens coming here to be admitted as lawful permanent residents (LPRs) who present a risk to the U.S. labor market. “Admitted as an LPR” refers to an alien who is not yet in the country and does not yet have LPR status, but who is eligible, has the paperwork ready and — if all goes well when inspected on entry — will be admitted as an LPR. The suspension does not apply to aliens who already have the status. The April proclamation had created a problem for children of lawful permanent residents who were getting ready to attain that status themselves.
The proclamations will expire at the end of the year, but they may be continued as necessary.
According to Trump, COVID-19 has significantly disrupted Americans’ livelihoods. The overall unemployment rate has nearly quadrupled between February and May. Millions of Americans are out of work. The proclamations are intended to reduce competition with foreign workers for scarce jobs; American workers compete against foreign nationals for jobs in every sector of our economy.
Also, an influx of new LPRs and alien visitors could strain the finite limits of our healthcare system at a time when we need to prioritize providing medical care for Americans and the existing immigrant population.
The April 22 proclamation does not suspend the entry of children seeking admission as LPRs if they have a U.S. citizen parent, but it does suspend the entry of children seeking admission as LPRs if their parents just have LPR status.
This is a serious problem for children of LPR parents who may reach the age of 21 before the suspension is lifted. If that happens, they would no longer be eligible for LPR status as a child — and would have to change their application to a category for which the wait for a visa is very long.
8 U.S.C. §1101(b)(1) defines the term “child” to mean an unmarried person under 21 years of age for immigration purposes; consequently, if the “child” of an LPR reaches the age of 21 or gets married while he is waiting for the suspension to be lifted, he would lose his eligibility for admission to the United States as a child.
On April 25, a motion for a Temporary Restraining Order (TRO) was filed to restrain the implementation of the provision in that April 22 proclamation that prevented the children of LPRs who are about to reach the age of 21 from entering the United States.
The motion was denied — which left it up to Trump to decide whether to help these children.
Meanwhile lawsuits seeking to terminate the two proclamations were added to a class action lawsuit that initially only applied to an earlier proclamation that Trump had issued on Oct. 4, 2019, which suspended the entry of immigrants who could become a financial burden to our healthcare system.
Without getting into the weeds of that litigation, suffice it to say that an argument was made to that court in a motion for a TRO that it should restrain provisions of the April 22 proclamation related to the children of LPRs in danger of aging out of eligibility to enter the U.S.
The court rejected that argument, so the fate of the children was again entirely up to Trump.
Both proclamations included a “national interest” provision that states the suspension does not apply to any alien whose entry would be in the national interest as determined by the Secretary of State and the DHS Secretary.
Trump was able to eliminate the problem by requiring the Secretary of State and the Secretary of Homeland Security to use the national interest exception in the two proclamations to exempt alien children from the suspension if suspending their entries would cause them to age out of eligibility for a visa.
Consequently, section 4(a)(i) of the June 22 specifically states “The Secretary of State and the Secretary of Homeland Security shall exercise the authority … to exempt alien children who would as a result of the suspension in section 2 of this proclamation or the suspension in section 1 of Proclamation (of April 22) age out of eligibility for a visa.”
Trump fixed the problem faced by immigrant children of lawful permanent residents.
What does this act of compassion mean?
I don’t think it means that Trump has changed his immigration enforcement policies, but it does demonstrate a willingness to help immigrant children — which bodes well for the prospect of negotiations on a DACA legalization bill.
In fact, Trump initiated several attempts to negotiate a deal with the Democrats on a DACA legalization program when he terminated the program, and I expect him to attempt again.
The Democrats rejected Trump’s proposals, but they could have cut a deal with Trump that would have been acceptable to both sides.
And that is still possible, however unlikely due solely to the politics of an election year and popular Democratic animus to anything Trump supports.
Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow him on Twitter @NolanR1 or at https://nolanrappaport.blogspot.com.