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Performance or policy: Late-night tweet on the invisible enemy | Kelly Goldthorpe

Thursday, April 30, 2020 @ 12:45 PM | By Kelly Goldthorpe

Kelly Goldthorpe %>
Kelly Goldthorpe
“In light of the attack from the Invisible Enemy, as well as the need to protect the jobs of our GREAT American Citizens, I will be signing an Executive Order to temporarily suspend immigration into the United States!” — @realDonaldTrump at 10:06 p.m. April 20, 2020.

So, was the pronouncement merely performance or was it policy? With such sweeping language, this late-night tweet caused much anxiety and confusion for members of the immigrant community and their advocates.

For almost two days, many people were left holding their breath, waiting for details on who would be affected, for how long and under what authority. This action was unfortunately, not unprecedented. Since taking office in January 2017, President Donald Trump has tried to block immigration including a ban on arrivals from several predominantly Muslim countries and more recently, a travel ban on Europeans in February 2020.

On April 22, 2020, the president signed an executive order to “pause” the issuance of green cards for 60 days. He is describing this action as an effort to protect Americans from competition from foreign workers during the COVID-19 pandemic since there are now millions of people out of work in the U.S.

The order does not apply to spouses and minor children of U.S. citizens. It does not prevent people from obtaining non-immigrant visas such as agricultural or specialized workers. Likewise, doctors, nurses and other medical professionals or researchers are exempt since they could be entering to help in the containment of COVID-19. In addition, EB-5 investor visa applicants are exempt. On this basis, immigrants who invest $900,000 and create jobs are OK to enter. Other immigrants, not so much.

The ban therefore affects anybody outside of the U.S. who are non-U.S. residents and those who do not have a valid immigrant visa, travel document, advanced parole document or similar documentation. Among others, the ban affects parents, adult children or siblings of U.S. citizens from getting a green card. Similarly, green card holders are temporarily prohibited from sponsoring their spouse or child.

Essentially, the order formalizes suspensions already in place. Due to the effects of the COVID-19 pandemic, immigration services were already on hold. Since March 2020, COVID-19 has ground legal immigration to a halt, with closed borders and air traffic largely suspended globally. Around the world, routine visa processing for visitors, tourists and workers has been suspended. Restrictions are in place for non-essential travel. In the U.S., new border crackdowns include turning migrants away and halting refugee admissions. Moreover, Citizenship and Immigration Services field offices in the U.S. are closed until at least June 4, which means appointments and naturalization ceremonies aren’t taking place.

The president claims the authority to issue this order is s. 212(f) of the 1952 Immigration and Nationality Act, which gives him broad authority to block the “entry” of categories of people he deems “detrimental” to U.S. interests. The order is under the pretext of helping U.S. workers and health systems negatively impacted by COVID-19. However, it is unclear how refusing an immigrant visa to an elderly parent of a U.S. citizen or to a minor child of a green card holder protects U.S. workers.

Is the “invisible enemy” that President Trump is referring to really COVID-19? Or is it actually an easy excuse to scapegoat a population that will appeal to his base at a time when his handling of the pandemic has been largely seen as a failure? Like many other pronouncements of policy by tweet, his initiatives are bold and threatening, only to be narrowed down and are often subject to legal challenges. In 38 words, President Trump threatened to bring the U.S. immigration system to a precipice.

Kelly Goldthorpe is an immigration lawyer at Green and Spiegel, LLP.

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