Farmworker Justice Immigration Update: 06/16/17

35th Anniversary of Plyler v. Doe Decision on Right to Education for Immigrant Children

Yesterday (June 15, 2017) marked the 35th anniversary of the Plyler v. Doe decision, a seminal Supreme Court case that established the right to public education for immigrant children, regardless of their status. Several of the courageous parents who brought the case against a school district in Tyler, Texas worked in agriculture, including in the area’s then-famous rose industry. In spite of this landmark decision, some states and localities continue to enact policies attempting to weaken immigrant children’s access to school using the same arguments the Court rejected in 1982. For guidance on how to help ensure that immigrant children exercise this important right, please see NILC’s Model Campus Safe Zones Resolution Language and The Leadership Conference’s Resources to Protect Immigrant Children in School (available in English and Spanish). Protecting immigrant children’s right to an education remains as essential today as it was 35 years ago.

5th Anniversary of Deferred Action for Childhood Arrivals (DACA) Program

Yesterday also marked five years since the enactment of the Deferred Action for Childhood Arrivals (DACA) program, established by President Obama in 2012. Since its creation, more than 780,000 young people have enrolled in the program. A 2014 study estimated that about 100,000 farmworkers and children of farmworkers are eligible for DACA. U.S. Citizenship and Immigration Services (USCIS) processed thousands of DACA applications and work permits during the first quarter of 2017, showing that the program has continued at a robust pace despite concerns about its fate.

Last night, the Department of Homeland Security (DHS) announced the rescission of the Deferred Action for Parents of Americans (DAPA) program, which had not gone into effect due to legal challenges. It is important to note that the DHS announcement on the rescission of DAPA makes clear that the DACA program remains in place. In fact, in its accompanying guidance, DHS explicitly states that “rescission [of DAPA] will not affect the terms of the original DACA program.” These recent developments offer a somewhat optimistic prospect for DACA enrollees, but it is imperative that immigrant rights advocates and lawmakers continue to monitor the issue and push back against attacks on the program.

Secretary Perdue Announces Possible Changes to Agricultural Labor Policy

During a visit to Idaho earlier this month, Agriculture Secretary Sonny Perdue told reporters that he has spoken to President Trump repeatedly about the role of immigrant workers in agriculture. Perdue specifically highlighted dairy producers’ year-round need for workers and stated that there are agricultural jobs that U.S. workers are not willing to fill. According to reporting by Politico Pro, Perdue also signaled that Kristi Boswell, one of his advisors and a former American Farm Bureau Federation lobbyist, is working on the issue. Secretary Perdue did not give any indication about when the proposal would be made public.

On June 15, Secretary Perdue convened the first meeting of a new interagency task force on agriculture and rural America. During the meeting, Secretary Perdue noted the importance of a “reliable farm supply of agricultural workers,” but did not elaborate on the statement. Wayne Palmer, current chief of staff at the Department of Labor (DOL), was also present at the meeting, but was silent on the issue. One of the task force’s stated objectives is to “develop a reliable workforce” and it plans to issue its recommendations in October. As we noted when Trump signed the Executive Order on Rural Prosperity, the farmworker voice was ignored by the Administration in the meeting leading to the Executive Order and in the Executive Order itself. That shortcoming should not continue.

Department of Labor (DOL) – Mixed Messages on Labor Rights/H-2A Enforcement

Labor Secretary Alexander Acosta has stated that the DOL will vigorously enforce laws involving fraud and abuse in guestworker visa programs, as part of an effort to protect American workers. In his statement, Acosta highlighted the DOL’s recent legal action against “G Farms,” an H-2A program employer accused of housing and wage violations. Although Farmworker Justice believes that this enforcement action is a positive step, we are concerned about another recent announcement by the DOL rescinding its guidance on joint employment. Withdrawing the agency’s informal guidance does not change the law. However, it raises questions about the Secretary’s views on holding growers accountable for labor violations when utilizing farm labor contractors, a prevalent practice generally and in guestworker visa programs. DOL’s mixed messaging is also apparent from reports that some local DOL investigators are not questioning growers about joint employment relationships, as well as reports that they are conducting fewer workplace audits. Another sign of a more employer-friendly approach appears in the Trump Administration’s budget, which calls for more compliance assistance to employers and less money overall for enforcement. The direction of DOL’s enforcement will depend significantly on key personnel appointments, which are still pending.

Lee Francis Cissna Nominated for USCIS Director Position

President Trump has nominated Lee Francis Cissna for the position of Director of U.S. Citizenship and Immigration Services (USCIS). Cissna’s nomination has been approved by the Senate Judiciary Committee, paving the way for a confirmation vote by the Senate. Cissna volunteered on President Trump’s campaign team and has stated that he provided technical expertise to those drafting President Trump’s immigration policies. The Congressional Hispanic Caucus and various immigrant rights organizations are urging Senators to vote against Cissna’s nomination.

Current Litigation Challenging President Trump’s Immigration Executive Orders

Although the issues discussed below may not directly affect farmworkers, the outcome of these ongoing cases related to President Trump’s immigration orders will likely determine the limits of the President’s authority on immigration policy, as well as the extent of constitutional guarantees that protect states and individuals.

“Sanctuary Jurisdictions” – One of President Trump’s January 2017 executive orders on immigration, entitled “Enhancing Public Safety in the Interior of the United States,” included a provision calling for the withdrawal of funding for “sanctuary jurisdictions.” As the result of lawsuits brought by the counties of San Francisco and Santa Clara in California, on April 25, 2017, a District Court judge ordered an injunction of this provision (Section 9(a) of the Executive Order). Last month, Attorney General Jeff Sessions issued a memorandum clarifying that the provision only applies to certain federal grants. Last week, the government filed a motion to dismiss the challenge to its policy. A hearing on the government’s motion to dismiss has been tentatively scheduled for July 12.

“Muslim Ban” – Another executive order on immigration issued in January, entitled “Protecting the Nation from Foreign Terrorist Entry into the United States,” called for a temporary ban on the admission of individuals from certain Muslim-majority countries, as well as refugees. The implementation of the order led to chaos, protests and lawsuits all around the country. In response, President Trump issued a revised version of the Executive Order in March. Most recently, two Appeals Court decisions (in the 4th Circuit and 9th Circuit) upheld existing injunctions against the Executive Order. The Trump Administration has asked the Supreme Court to address the issue, and the Court is expected to announce whether it will take the case later this month.