ADVOCACY

On July 21, 2020, President Trump, issued a memo to the Secretary of Commerce, directing the Secretary, to not include undocumented immigrants as part of his statutory duties to conduct and report the decennial census. SABA North America believes this insidious memo will harm immigrant communities throughout the country.  SABA North America is deeply alarmed by the administration’s ill-conceived, last-minute attempt to not count undocumented immigrants as part of the 2020 census.

Legal scholars and activists are already casting the memo as being unconstitutional under Section II of the Fourteenth Amendment which addresses that the House of Representatives would be apportioned by “counting the whole number of persons in each State…”

This latest attempt to change the 2020 census procedures is unconstitutional, outlandish and reinforces the xenophobic atmosphere which is already heightened due to this administration’s recent policies targeting immigrant communities.  As the President referenced in this latest memo, the Trump administration attempted to add a citizenship question to the 2020 Census questionnaire last summer.  This effort was ultimately unsuccessful after a unanimous ruling by the Supreme Court denying the government’s request.  Further, as a practical matter, per the Census’ Bureau’s own website, over 62% of households have already responded to the 2020 Census questionnaire.  The logistics of confirming which of the collected responses were from undocumented immigrants seems unwieldy at best.

Moreover, the President’s actions will have a chilling effect on active participation in the Census by both undocumented and legal immigrants as they will likely fear some form of retaliation and action by a government that they already distrust to a great degree.  The attempt by the administration to cast aside a significant voice of the U.S. population cannot and should not be tolerated by the American electorate.  Not only will Census data be used to confirm appropriation of members in the House of Representatives, but this data is also used as a basis for the disbursement of many Federal grants and programs.

SABA North America reiterates that participating in the Census is critically important to getting our families and communities the resources and representation we deserve.

The decision to not count undocumented immigrants is in clear contravention of the Constitution and only serves to make America a less inclusive society.  SABA North America will continue to stand alongside immigrant communities and our community-based partners in their efforts to maintain a just system to effectuate the 2020 Census.

SABA North America is deeply disturbed by the issuance of yet another Presidential Proclamation by President Donald J. Trump, which further restricts lawful immigration into the United States.  The Proclamation went into effect on June 24, 2020 and will suspend the entry of certain foreign nationals on various employment-based nonimmigrant visas into the United States until the end of the calendar year.  Those foreign nationals will be barred from entry through at least December 31, 2020 if they, on the effective date of the Proclamation, are physically outside of the United States, not in possession of a valid nonimmigrant visa stamp in their passport or other permissible travel documents, and are seeking entry based on the issuance of a new H-1B visa, H-2B visa, L-1 visa, or J visa.  Furthermore, the foreign national’s accompanying family members will similarly be barred from entry.  The Proclamation also extends through December 31, 2020 the restrictions on the entry of certain immigrant visa holders, which was made effective through an earlier proclamation issued on April 22, 2020.

The Proclamation will not apply to lawful permanent residents, the spouse or child of a U.S. citizen, and certain individuals may be eligible for a national interest exception subject to the discretion of consular officers.  The American Immigration Lawyers Association and the American Immigration Council have prepared a thoughtful summary available here.

It is important to note that no other President in the history of the United States has consistently limited the entry of foreign nationals utilizing this “emergency power” provision of the Immigration and Nationality Act (“INA”), which provides the purported basis of the Proclamation under Section 212(f).  Traditionally, immigration law, and the allotment of visas, has been in the purview of United States Congress under the plenary power doctrine.  The primary justification the Administration makes for such drastic measures is an alleged need to spur economic growth and protect U.S. workers as a result of the devastation caused by the COVID-19 pandemic.  However, this justification and many of the assertions underpinning this rationale have been called into serious doubt by various prominent business executives, legal scholars, and policymakers.  SABA is very concerned that restricting the ability of highly talented, skilled professionals to come into the United States will actually hinder the post-COVID-19 recovery efforts, and inhibit innovation and America’s global competitiveness.  A recent Forbes article analyzes this aspect of the Proclamation as well.

SABA further echoes the sentiments of prominent business leaders, including Apple CEO Tim Cook, Google and Alphabet Inc. CEO Sundar Pichai, Tesla and SpaceX CEO Elon Musk, who   have all made their opposition to the Proclamation publicly known.  In fact, U.S. Chamber of Commerce CEO Thomas J. Donohue, stated “Putting up a 'not welcome' sign for engineers, executives, IT experts, doctors, nurses and other workers won’t help our country, it will hold us back. Restrictive changes to our nation’s immigration system will push investment and economic activity abroad, slow growth, and reduce job creation."

This Proclamation is also expected to have a significant negative humanitarian impact – SABA is concerned about immediate family members of temporary visa holders who are now unlikely to be able to enter the United States and join their families simply because they happened to be outside the United States on the day this Proclamation went into effect.  Many notable immigration practitioners also believe that the Proclamation’s intended consequence is to separate families and instill additional barriers on immigrant communities in the United States.  For instance, another recent Forbes article examines the plight of a 7-year old child who, due to the restrictions of the Proclamation, is unable to unite with his parents in the United States and is forced to remain in India.

The Proclamation raises an additional worry for foreign nationals in that it directs the Secretary of Labor in consultation with the Secretary of Homeland Security, as soon as it is practicable, to review and recommend any measures to restrict EB-2 or EB-3 immigrant visas or an H-1B nonimmigrant visa if they are found to disadvantage U.S. workers, even if they are in the United States. Similarly, the Proclamation directs government agencies to develop methods to limit access to asylum seekers if the alleged primary purpose of the applicant is to obtain employment authorization. This statement is particularly important in that it is possible that further restrictions may be forthcoming from this Administration that will adversely affect members of the South Asian community that are already physically present in the U.S.

Separately, the Administration has taken additional steps impacting students on visas.  On July 6, 2020, the U.S. Immigration and Customs Enforcement Agency (ICE), issued this press release which will adversely impact scores of international students studying in the U.S.   The agency plans to amend its temporary measures implemented as a result of the COVID-19 pandemic, which allowed foreign students flexibility of attending online classes through their college or university since in-person classes were suspended.  ICE plans to suspend these pandemic related accommodations to foreign students that are enrolled in programs that are entirely virtual this Fall semester, forcing students and institutions to make difficult trade-offs between their public health and enrollment at U.S. Universities.

It is no secret that the South Asian community in the United States will be disparately impacted by the Proclamation and the more recent action impacting F-1 students  Per a report submitted to Congress on March 5, 2020 by the United States Citizenship and Immigration Services, 71.7 percent of H-1B approvals in FY 2019 were filed for workers born in India.  Indian students are among the largest group of international students in the U.S.

SABA stands in solidarity with the South Asian community in the United States, and other affected communities, and will work to ameliorate the significant economic, social, and cultural harm which will likely result from these actions.  These actions are the pinnacle of the Administration’s attempts to restrict the ability of immigrants to continue pursuing the American dream.  The Muslim ban, the public-charge rule, and the COVID-19 travel bans are an affront to immigrant communities at large and have heightened the level of xenophobia throughout the country.  SABA will monitor any litigation efforts against the Proclamation and provide any updates that are deemed appropriate.

The South Asian Bar Association of North America

June 5, 2020

Statement on the Death of George Floyd and Racial Injustice in the U.S. and Canada 

The South Asian Bar Association of North America (“SABA North America”) stands with George Floyd’s family, Ahmaud Arbery’s family, Breonna Taylor’s family, and Regis Korchinski-Paquet’s family, along with Black communities throughout the United States and Canada.  We grieve alongside their families and our brothers and sisters, and we recognize the persistent plight of Black people suffering at the hands of deep-rooted systems of institutionalized racism.  As the death of Regis Korchinski-Paquet in Toronto shows, these systems are not limited to the United States alone.  For decades, Black communities in the United States and Canada have faced unjust persecution and brutality at the hands of law enforcement, and been unjustly targeted purely because of the color of their skin.  The latest examples of George Floyd, Ahmaud Arbery, and Breonna Taylor, as well as the Central Park incident involving Amy Cooper, are just a few of too many.  This must stop.  To our brothers and sisters of the Black Community, we see you, we hear you, and we are with you.  We pledge not only our support, but also a call to action, to combat the institutionalized racism, inequality and injustice that you have faced for far too long. 

Long after the protests end, this must remain a time for action, and this time must be different.  We urge the U.S. Department of Justice (“DOJ”) to effectively investigate pattern and practice violations by police departments and hold them accountable.  We urge Congress to consider expanding the Violent Crime Control and Law Enforcement Act of 1994 to give State Attorneys General the authority to enforce “pattern or practice” violations when the DOJ is unwilling or unable to act, as requested by 18 State Attorneys General in a recent letter.[1]  We must not allow another George Floyd to be killed due to our failure to act.  We must act now. 

To the members of SABA North America, and the greater legal community, too many of us have become comfortable with the status quo.  It is critical that we use the present crisis to understand what it means to be Black in the United States and Canada today.  We call upon you to engage in peaceful activism, locally and nationally.  SABA North America commits to working to support these activities.

• Put pressure on State and Federal officials to appropriately respond to the Nation’s call to dismantle the systems and institutions that marginalize Blacks in the United States and Canada. 
• Urge your local officials to institute police reform and review policing practices, ensure accountability through independent oversight, and rethink community interaction.
• Vote.
• Challenge your knowledge and preconceptions about race and how it has affected the Black community. 
• Challenge the biases within our own communities and speak up.  Do not shy away from conversations that make you uncomfortable, especially with your family.  
• Donate.
• Put the needs of others above your own fears.
• Do not be silent.

While we recognize that our community has also faced its own racial and ethnic challenges, we must also remember that many of us have benefited from the model minority construct.  While it is true that many People of Color have experienced discrimination and injustice, the legacy and history of oppression against Black Americans and Canadians is far too institutionalized and runs deeper than any discrimination and injustice faced by any other community.  We must acknowledge that, and we must fight for change.

We applaud the recent actions taken by members of the South Asian community in allyship and solidarity with protesters.  As his restaurant in Minneapolis burned to the ground after a night of protests, Ruhel Islam stated, “Let the building burn… Justice needs to be served.”  Similarly, Rahul Dubey of Washington, D.C. welcomed dozens of protestors desperately seeking refuge from the police into his home and sheltered them overnight saying, “I hope that my 13-year old son grows up to be just as amazing as they are.”  These community members put the needs of others above your own fears.  This is true strength, courage and commitment.

SABA North America understands that a moment like this requires more than words.  As such, SABA North America is committing now to focusing on efforts like those listed above, to combat the systemic racism present in the legal systems and culture of the United States and Canada.  SABA North America has a platform to engage with the South Asian legal community and the South Asian community at large, and it will use that platform to work on these initiatives.  We will incorporate activism into our programming, participate in education and outreach efforts to confront racism in our South Asian community directed against the Black community and other ethnic minorities, and join together with our sister bar associations to lobby and advocate for reform including in our Lobby Day initiative in 2021.

This fight for equality and justice will not be short-lived; however, in a matter of weeks or months, the media coverage may stop, donations might slow, and social media posts will likely return to normal.  Our countries will attempt to move on and to leave the wrongful deaths of George Floyd and countless other Black Americans and Canadians in the past, as has been done many times before.  We urge you, do not let that happen.  The systemic oppression and persecution of our Black brothers and sisters is an inescapable reality in America and Canada.  We beseech you - continue to say their names, continue to speak up and continue to fight until justice is served. 

Please consider joining and supporting organizations actively engaged in fighting for justice.  A few are listed below.

Campaign Zero - https://www.joincampaignzero.org/

NAACP Legal Defense Fund - https://www.naacpldf.org/

Equal Justice Initiative - https://eji.org/

Finally, we want to recognize the various chapters of SABA across North America that have issued thoughtful reflections and calls to action in the last few days.  We have been listening and learning from our members, and our statement is informed by their expressions of frustration with the status quo and demands for racial justice.  The events of the last few weeks, and the persistent lack of justice and accountability over the years, are galvanizing for our organization.  We cannot solve these problems unless we solve them together, and have faith that our members will answer the calls to action outlined above, and will continue to stand up for justice in meaningful ways.

SABA North America (formerly NASABA/North American South Asian Bar Association) is a voluntary bar organization and serves as an umbrella organization to 29 chapters in the United States and Canada. SABA North America is a recognized forum for professional growth and advancement for South Asian attorneys in North America and seeks to protect the rights and liberties of the South Asian community across the continent. Learn more at www.sabanorthamerica.com.