The Regulatory Review

Immigrants Living Under a Different Regulatory Scheme

Scholars and advocates address regulatory frameworks that govern immigrants without legal status.

More than 46 million immigrants live in the United States, the highest immigrant population in more than a century. But many immigrants lack the legal status to work and live in the United States which subjects them to a different regulatory framework for accessing justice, health care, and housing.

A vast majority of immigrants who lack legal status have lived in and contributed to their communities for many years.

Although the United States reaps benefits from immigrants’ contributions, the US regulatory framework subjects immigrants without legal status to either overregulation––as a way to prevent their access to government resources––or underregulation, as a means to allow their continued deportation or exclusion .

Under the Trump Administration’s 2020 public charge rule, for example, the Department of Homeland Security (DHS) explained that “individuals are inadmissible to the United States if they are unable to care for themselves without becoming public charges.” The 2020 rule deemed immigrants without legal status a “public charge” if they relied on, or could rely on, public benefits such as Medicaid, SNAP, or federal housing assistance.

Even though the Trump Administration’s public charge rule is no longer in effect, the rule had a lasting effect during the COVID-19 pandemic, when half of immigrant families abstained from seeking public assistance because they feared potential consequences on their immigration status.

In addition, DHS has proposed a change to the 2019 public charge rule, which would walk back the previous Administration’s interpretation of “public charge.” According to DHS Secretary Alejandro Mayorkas, under this rule change, individuals would not “be penalized for choosing to access the health benefits and other supplemental government services available to them.” Yet, DHS will continue to exclude certain noncitizens who might need to access public benefits such as Social Security and the Temporary Assistance for Needy Families program.

DHS continues to deport people often without a hearing before an immigration judge or access to legal counsel. Simultaneously, DHS does not get involved in instances of privately-funded deportations, such as medical deportation, when hospitals contract private charter planes to avoid the continued medical care of immigrants without legal status or health insurance.

In this week’s Saturday Seminar, we feature the work of experts who discuss how the administrative state differs for immigrants who lack legal status.

  • In an article published in the Journal of Food Law and Policy, Kimberly Bousquet argues that government actors should pass laws and adopt regulations to protect agricultural workers—many of whom are undocumented immigrants—from excessive exposure to COVID-19. Bousquet notes that agricultural workers are essential to the US economy, and as a result, they have had to report to work during the pandemic at times when most other workers were encouraged or mandated to stay home. Bousquet argues that agricultural workers face special difficulties, or at least greater difficulties than the great majority of American workers, including cramped housing, extreme poverty, and the inability to take paid sick leave or access unemployment benefits. Because of these difficulties combined with having to work throughout the pandemic, Bousquet explains that agricultural workers have been contracting COVID-19 at a higher rate than the general population. Bousquet argues that the federal government should require agricultural employers to provide protections for their workers to reduce their rate of COVID-19 infections.
  • Courts should grant tenants’ rights to renters in arrangements outside the typical tenant-landlord relationship, argues Mekonnen Firew Ayano of the University of Missouri School of Law. In an article published in the Georgetown Journal on Poverty Law and Policy, Ayano explains that many immigrants find themselves in “informal tenant” relationships—where they rent bedrooms, basements, or other rooms converted into living spaces—because they face difficulty earning the income and credit history needed to rent property. Ayano discusses the legal differences between informal tenant relationships and classic tenant-landlord relationships. In informal relationships, tenants only get the rights granted to them under contract law, while formal tenant-landlord arrangements guarantee additional property rights for both tenants and landlords. Ayano explains the problems often present in informal tenant arrangements, such as overcrowding and instability. He argues that courts should solve these problems not by regulating informal housing, but by granting tenants’ rights to those in informal tenant relationships.
  • In an article published in the Russell Sage Foundation Journal of the Social Sciences, Amairini Sanchez of the University of Georgia and several coauthors argue that monetary sanctions are used to exploit immigrants and tie them to the “crimmigration” system—a term used to describe the intersection of criminal law and civil immigration law. They analyze how monetary sanctions interact with the crimmigration systems in different states. The authors explain the ways that courts use the opacity of the crimmigration system to exploit immigrants who fear deportation by imposing legal financial obligations. They also argue that judges often use racialized language to justify their immigration decisions, even when granting sentences that they view as lenient. Sanchez and her co-authors conclude that courts use monetary sanctions to keep immigrants tied to the criminal justice system.
  • In a forthcoming article in the California Law Review, Shayak Sarkar of the University of California Davis School of Law argues that “capital controls”—limits on moving funds across borders—operate as a form of “migrant control.” Sarkar examines three capital controls: remittance taxation, refusals to pay Social Security Benefits, and bank rules for customer identification. He writes that these capital controls, which often make distinctions based on immigration status, can “guard against, expel, and marginalize” various immigrants. For example, many immigrants are segregated from the formal financial system because they lack the “particular forms” demonstrating their lawful status. Sarkar explores the respective implications in constitutional law and immigration statutes, such as which government entities are entitled to control US migration
  • Immigration policy in the United States affects public health, explains Polly J. Price of Emory University. In an article published in the Indiana Health Law Review, Price criticizes DHS for treating immigrant access to health care punitively. For example, DHS published a proposed rule in 2018 that would effectively require “all aliens seeking an extension of stay or change of status” to demonstrate that they have not received any government-funded health services. She argues that this treatment encroaches the domain of local health departments and might “increase the prevalence of communicable diseases.”
  • In a report published by the Free Migration Project and the University of Pennsylvania Law School Legislative Clinic, David Bennion and several coauthors denounce the practice of medical deportation, which they define as “the physical removal by a non-government entity of an immigrant patient, who is critically injured or ill, from one country to another without the informed consent of the patient or the patient’s authorized caretaker.” Hospitals often claim these patients want to return to their home country to receive care, but this is usually not the case, to Bennion and his coauthors. The authors identify problems with medical deportation. For example, they claim it is often not a medically sound decision and can result in worse health outcomes or even death for patients. The authors recommend both hospitals and government policy offer greater protection from medical deportation.

The Saturday Seminar is a weekly feature that aims to put into written form the kind of content that would be conveyed in a live seminar involving regulatory experts. Each week, The Regulatory Review publishes a brief overview of a selected regulatory topic and then distills recent research and scholarly writing on that topic.

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