How The Trump Administration Uses 'Workarounds' To Reshape Legal Immigration

Oct 10, 2019
Originally published on October 10, 2019 6:07 pm

Earlier this year, the State Department quietly rolled out new limits on one of President Trump's favorite targets: the diversity visa lottery.

The White House made ending the program one of the "pillars" of its immigration policy proposal last year. But those proposals went nowhere on Capitol Hill.

So the administration tried something different: It is restricting who can apply for the diversity visa, in a way that advocates say will make it much harder for low-income immigrants to apply.

"This particular backdoor approach to getting rid of the program — rather than going through Congress, just making it very difficult for people to apply — that was something we didn't see coming," said Amaha Kassa, the executive director of African Communities Together, a nonprofit that helps African immigrants and their families.

To immigrant advocates, the diversity visa is a small example of a larger pattern. They say the Trump administration is trying to use rules, regulations, executive orders and proclamations — what one administration official calls "workarounds" — to make sweeping changes to the legal immigration system without approval or input from Congress. And they warn that these backdoor changes will make it harder for immigrants who are poor and from developing countries to resettle in the U.S.

The diversity visa has long been a favorite target at the president's campaign rallies.

"The country puts the name in the basket, and you pick people out of the lottery. Well let's see this one's a murderer. This one robbed four banks," Trump said at an event in Cincinnati earlier this year.

Several things about the president's descriptions are misleading or simply wrong. It's the U.S. State Department that conducts this lottery, not foreign governments. Applicants themselves decide whether to enter, not the governments of their native countries. And applicants are carefully vetted and screened before they're allowed into the U.S.

But the program's track record isn't perfect. Two years years ago, an immigrant from Uzbekistan who had come to the U.S. years earlier on a diversity visa was accused of driving a truck down a crowded bike path in Manhattan, killing eight people.

Despite pressure from the White House, Congress has not moved to end the program, which admits about 55,000 immigrants a year, largely from Africa and Europe, and gives them a path to a green card. Advocates say those immigrants tend to have higher levels of education and speak better English than other immigrants, and they come from countries that haven't historically had high levels of immigration to the U.S.

But the Trump administration didn't back down. In June of this year, the State Department announced a new rule: To be eligible for the diversity visa lottery, people must have a passport at the time they apply. The rule is designed to prevent fraud, officials said.

That may not sound like a big deal. But in many countries, obtaining a passport is difficult and time-consuming, says Kassa, whose organization is suing to block the new rule.

"One of the plaintiffs on this lawsuit, he is a mechanic in a small town in Ethiopia. And in order to go to the place where he can apply for a passport he has to take three different buses. It's going to take him a full day to travel there. And the fees for acquiring a passport might be as much as a week's wages for him," Kassa said. "So what we're saying is, that is a huge burden."

It wasn't long ago that Republicans accused the Obama administration of making immigration policy without input or approval from Congress. Now it's the Trump administration that has gotten tired of waiting for Congress.

"Time is our opponent," said Ken Cuccinelli, the acting director of U.S. Citizenship and Immigration Services, which handles legal immigration. Cuccinelli was interviewed last month at the Center for Immigration Studies, a think tank in Washington that advocates for lower levels of immigration. He was asked about efforts to tighten up the rules governing high-tech visas, among other things.

"We start all these discussions with the assumption of the law not changing, which is a sad place to start a discussion. I mean, the right way to decide policy is for Congress and the president to decide policy. That's the way the government was set up," Cuccinelli said. "In the alternative, we talk about what amount to workarounds to that. Of course, they have to be within the boundaries of the law."

The Trump administration has turned to workarounds for many of its top immigration priorities — including the "four pillar" framework the White House laid out at the beginning of 2018.

The first pillar was border security. The White House wanted $25 billion for a wall on the southern border and other security enhancements. But Congress appropriated only $1.4 billion. So the Trump administration is seeking to use an additional $8 billion in military funding.

The second and third pillars were the cancellation of the diversity visa lottery and the end of "chain migration" — the phrase critics use to describe the current immigration system, which gives priority to family members of immigrants already in the U.S. The White House wants to move toward a "merit based" system, one that favors immigrants with more skills and more education.

Critics say the administration is still trying to achieve those goals — but in ways that don't require approval from Congress.

They point to the "public charge" rule, set to take effect next week, which would make it harder for immigrants to get green cards if they use a wide range of public benefits, such as food stamps. The rule also adds new income requirements for immigrants, favoring those who make more than 250% of the poverty line.

Advocates are also concerned about the impact of an executive proclamation on health care issued last Friday night. It requires immigrants coming from abroad to prove that they will have health insurance within 30 days or that they can afford to pay for their own medical care. That could potentially bar as many as 375,000 immigrants annually, according to an analysis by the nonpartisan Migration Policy Institute.

Trump administration officials say the idea that immigrants should be self-sufficient has been part of U.S. law for a long time. In an interview with NPR's Morning Edition in August, Cuccinelli defended the public charge rule by revising the poem engraved at the base of the Statue of Liberty: "Give me your tired and your poor who can stand on their own two feet and who will not become a public charge," Cuccinelli said.

But to critics, it appears that the Trump administration is doing more than just revising that poem — it's trying to reshape how the country defines itself as a nation of immigrants.

"This administration is trying to keep out lower-income immigrants. They're trying to keep out immigrants from Africa, Asia and the developing world," said Kassa with African Communities Together.

Immigrant advocates remember Trump's reported rant about "s***hole" countries. And Kassa says the administration is trying to keep out immigrants from the Caribbean and African countries.

"They're trying to keep out anyone who doesn't fit with their particular vision of who's American. And they're doing it by selling, you know, a myth, a lie that people are criminals or that they're dependent. When the reality is these are exactly the types of immigrants and their families who've helped build America," he said.

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MARY LOUISE KELLY, HOST:

Go way back to the days before Donald Trump was President Trump and he was promising to keep out certain immigrants.

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PRESIDENT DONALD TRUMP: They're sending people that have lots of problems, and they're bringing those problems with us.

KELLY: That's from 2015. Well, four years later, Congress has not gone along with most of President Trump's proposed changes, so instead, the president and his administration have issued new regulations, executive orders, proclamations - all aimed at reshaping legal immigration into the United States. NPR's Joel Rose is here in the studio to talk about how the administration has been successful in using what they call workarounds.

Hey, Joel.

JOEL ROSE, BYLINE: Hey, Mary Louise.

KELLY: Let me start by setting the stage because it does seem as though almost every day it's - every time you turn around, there's some new immigration twist making headlines. It can be hard to keep track. So start with - what's the latest twist? Where do things stand?

ROSE: Well, I want to talk about one specific Trump administration proposal that has not gotten a whole lot of attention in this torrent of immigration news that you mentioned. This proposal is targeting a program that gives out visas by lottery. This is something President Trump loves to hate, and it has actually become kind of one of the greatest hits at his rallies.

(SOUNDBITE OF ARCHIVED RECORDING)

TRUMP: What kind of a system is that? They come in by a lottery.

The country puts the name in the basket, and you pick people out of the lottery. They're giving us their worst people, and so would you, and so would I.

ROSE: There is a lot in the president's descriptions of this program that is misleading or just plain wrong. It is called the Diversity Visa Lottery, but it is not entirely random. All of the immigrants are carefully vetted before they're allowed into the U.S. The Trump administration has been trying to get rid of this diversity visa but cannot get Congress to go along with that because these tend to be well-educated immigrants from countries that historically have not gotten a lot of visas to come to the U.S.

KELLY: OK. This prompts a question - if the president can't get Congress to go along with this, how is the president planning to (laughter) get his way on the Diversity Visa Program?

ROSE: So the Trump administration has gone through the State Department, which issued a rule back in June that said in order to even apply for this Diversity Visa Lottery, you have to have a passport. The Trump administration says this is in order to prevent fraud. But immigrant advocates say it is just a way to discourage poor immigrants from developing countries from even applying. I talked to Amaha Kassa. He's the executive director of a group called African Communities Together. This is a nonprofit that helps immigrants from Africa and is suing to block this rule.

AMAHA KASSA: One of the plaintiffs on this lawsuit, he is a mechanic in a small town in Ethiopia. And in order to go to the place where he can apply for a passport, he has to take three different buses. It's going to take him a full day to travel there. And the fees for acquiring a passport might be as much as a week's wages for him. That is a huge burden.

KELLY: All right. So, Joel Rose, that is one view there on the Diversity Visa Lottery, which you're pointing to as the latest twist. But put this - the latest twist in what? I mean, what is the larger pattern that you are seeing as you report on immigration?

ROSE: Well, if you talk to Kassa and to other immigrant advocates, they would say this is part of a bigger pattern, that the Trump administration is trying to use rules and regulations to make pretty sweeping changes to the legal immigration system through the back door, changes that it could not get from Congress, which of course has been gridlocked on this issue for years.

KELLY: Right. If I'm recalling - Republicans used to complain back when it was President Obama in the White House, saying he was trying to get things done - make decisions on immigration without having input from Congress.

ROSE: Well, right. This administration, very much like the last one, has gotten tired of waiting for Congress. Ken Cuccinelli talked about this recently. He is the acting director of U.S. Citizenship and Immigration Services.

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KEN CUCCINELLI: We start all these discussions with the assumption of the law not changing, which is a sad place to start a discussion. I mean, the right way to decide policy is for Congress and the president to decide policy. That's the way the government was set up.

ROSE: So Cuccinelli is essentially complaining here that the administration feels stuck. And he also said in that interview that the administration has very little time, really, before the end of President Trump's first term and that, quote, "time is our opponent," unquote. So Cuccinelli says they're doing what they can without Congress.

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CUCCINELLI: We talk about what amount to workarounds to that. Of course, they have to be within the boundaries of the law.

KELLY: Joel we heard that word there - workarounds. Give me some more examples of what kind of things we're seeing.

ROSE: So you can go, really, down the list of what the White House wanted from Congress back in 2018, when they were calling them the pillars of immigration reform. Let's take them sort of one by one. One of them was ending the Diversity Visa Lottery, which we've already talked about; they want to tighten the rules for applicants. No. 2 - they wanted border security - build the wall.

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TRUMP: (Chanting) Build that wall. Build that wall. Build that wall.

ROSE: No. 3 was a shift to a so-called merit-based immigration system and away from our current system that gives priority to family members of the immigrants who are already here, what critics would disparage as chain migration.

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TRUMP: And how about chain migration? How about that? Somebody comes in. He brings his mother and his father and his...

ROSE: And pillar No. 4 was a path to citizenship for DACA recipients, the so-called Dreamers. Except for DACA, the administration has been trying to get all of these things done without help from Congress.

KELLY: Right. And that's what I'm still trying to get my head around. How do you do all this without Congress either changing the law or coughing up money for this stuff?

ROSE: Well, on the border wall, the White House did not get the money they wanted from Congress, but instead they are trying to take money out of the Pentagon's budget. When it comes to reshaping legal immigration, the administration has been busy on a lot of fronts. Just last week, they issued a proclamation that will make it harder to get a visa, unless you can prove that you can pay for your own medical expenses once you're in the U.S.

There's also this so-called public charge rule, which would make it harder for immigrants to get green cards if they use a whole range of public benefits - things like food stamps. That is set to take effect next week. And Ken Cuccinelli, who we just heard from a moment ago, defended the public charge rule on Morning Edition over the summer by revising the poem at the base of the Statue of Liberty.

(SOUNDBITE OF ARCHIVED NPR BROADCAST)

CUCCINELLI: Give me your tired and your poor who can stand on their own two feet and who will not become a public charge.

KELLY: Your tired and your poor who can stand on their own two feet. I remember when that aired, and it caused this uproar with people saying, hang on - is that Cuccinelli not just rewriting the poem but perhaps opening the door to rewriting how we define ourselves as a nation of immigrants? Is that what this administration is trying to do?

ROSE: Well, the president has denied that.

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TRUMP: I love immigrants. This country is based on immigrants.

ROSE: The Trump administration would say that it is just following the law here. The idea that immigrants have to be self-sufficient has been in various U.S. laws for a long time.

KELLY: Right. But those laws, as we've noted, haven't changed for the most part. So what is happening - the administration is interpreting them in new and novel ways?

ROSE: For sure. They are taking a much more restrictive approach than past administrations. And immigrant advocates say that's part of their broader strategy. Here's Amaha Kassa with African Communities Together again.

KASSA: This administration is trying to keep out lower-income immigrants. They're trying to keep out anyone who doesn't fit with their particular vision of who's American, and they're doing it by selling a myth, a lie, that people are criminals or that they're dependent when the reality is these are exactly the types of immigrants and their families who've helped build America.

ROSE: They think he's trying to keep out immigrants from the Caribbean and African countries and that his administration is using these rules and regulations to make that happen.

KELLY: That prompts our last question - is it working? Are we seeing fewer immigrants from those countries?

ROSE: We are definitely seeing dramatic reductions in the number of refugees. The administration has cut the number of refugees it will allow in next year to just 18,000, which is the lowest level in decades. But for many of these policies, we likely won't know how they affect the number of immigrants coming into the country or where they're coming from for months, maybe even years.

KELLY: NPR's Joel Rose reporting there on a little bit of what's going on behind all of the immigration headlines.

Thank you, Joel.

ROSE: You're welcome.

(SOUNDBITE OF LIAI'S "BRUNNEN") Transcript provided by NPR, Copyright NPR.