Justices skeptical of Trump bid to exclude all undocumented immigrants from census

Removing immigrants from the count would affect seats in Congress, federal funds

By subtracting millions of immigrants from the census total, Trump hopes to shape the apportionment of congressional seats, the allocation of billions in federal funds and the contours of the nation’s electoral map for at least the next decade. If he succeeds, it would be the first time in 230 years that the process would exclude large swaths of people inside the U.S.

“A lot of the historical evidence and longstanding practice really cuts against your position,” Justice Amy Coney Barrett told Trump acting Solicitor General Jeffrey Wall during oral arguments.

“There’s evidence that in the founding era, an inhabitant was a dweller who lives or resides in a place,” Barrett said. “If an undocumented person has been in the country for 20 years, even if illegally, as you say, why would such a person not have settled a settled residence here?”

Wall argued that Trump has discretion to exclude “at least some illegal aliens,” especially those without deep ties to the country such as those caught recently crossing the border or others in ICE detention slated for removal. But Wall could not specify how Trump might draw the line or how many undocumented immigrants fall into each subcategory proposed by the administration.

The uncertainty challenged the justices as they tried to chart a resolution.

“I find the posture of this case quite frustrating,” said Justice Samuel Alito. “It could be that we’re dealing a possibility that is quite important. It could be that this is much ado about very little. It depends on what the Census Bureau and the Department of Commerce are able to do.”

Some justices suggested the court should possibly wait to rule until after the count is complete and apportionment of congressional seats comes into focus.

“We don’t know what the president is going to do, how many aliens will be excluded. We don’t know what the effect of that would be on apportionment. All these questions would be resolved if we wait until the apportionment takes place,” Chief Justice John Roberts said.

Dale Ho, the ACLU attorney challenging the Trump order, countered that there is “at least a substantial risk of a shift in the apportionment now” that warranted immediate action by the court.

“Couldn’t he substitute a new policy,” Kavanaugh said, “by saying we’re going to exclude some subsets (of undocumented immigrants) and then there’ll be litigation on that and we’ll be right back here?”

“Whether or not that particular policy would be lawful is a different question,” replied Ho.

Justices Breyer, Kagan and Sotomayor suggested that they see the text of the Constitution and federal law as clearly requiring a fully inclusive census count for purposes of apportionment.

“The census says ‘where you’re living,'” said Sotomayor. “I’m not sure how you can identify any class of immigrant that isn’t living here in a traditional sense. This is where they are.”

New York Solicitor General Barbara Underwood agreed.

“You cannot declare them to be gone,” she said of undocumented immigrants. “Their undocumented status doesn’t remove their presence.”

New York is one of 20 states asking the court for a swift decision before Trump, by law, must deliver his apportionment report to Congress in early January.

“So apportionment already begins,” Sotomayor said of the rapidly progressing timeline. “We’d have to unscramble the egg” if the court waits.

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Supreme Court Will Review Trump’s Plan to Exclude Undocumented Immigrants in Redistricting

A three-judge panel of the Federal District Court in Manhattan ruled that the new policy violated federal law. In an unsigned opinion, the panel said the question was “not particularly close or complicated.”

“The secretary is required to report a single set of figures to the president — namely, ‘the tabulation of total population by states’ under the ‘decennial census’ — and the president is then required to use those same figures to determine apportionment using the method of equal proportions,” the panel wrote, quoting the relevant statutes.

Two of the judges on the panel, Richard C. Wesley and Peter W. Hall, were appointed by President George W. Bush. The third, Jesse M. Furman, was named by President Barack Obama.

Much of the panel’s opinion concerned whether the plaintiffs had suffered the sort of injury that gave them standing to sue. It concluded that the new policy made it less likely that undocumented immigrants and others would participate in the census, harming its accuracy. Census data is used for many purposes, including how hundreds of billions of dollars in federal spending are distributed.

The case, Trump v. New York, No. 20-366, was complicated by the order on Tuesday allowing the administration to end the census count, which may undercut the three-judge panel’s reasons for finding standing.

In asking the Supreme Court to step in, the Trump administration, represented by the acting solicitor general, Jeffrey B. Wall, defended the new policy, saying that the term “persons in each state” can be understood to require “a sovereign’s permission to remain within the jurisdiction.”

In response, Barbara D. Underwood, New York’s solicitor general, representing state and local governments, said the administration was asking the court to endorse a stunning departure from the nation’s traditions. “Since the Founding,” she wrote, “the population base used to apportion seats in the House of Representatives has never excluded any resident based on immigration status.”

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B.C. migrant, undocumented workers rally for permanent residency program

Migrant workers and advocates called for a “just recovery” from the COVID-19 pandemic during a digital rally on Saturday based out of Vancouver.

The pandemic has shown how heavily Canada relies on migrant and undocumented workers to perform essential jobs, said Chit Arma, who chairs the Migrant Workers Centre’s board of directors in Vancouver.

“The pandemic has also exposed the extent to which these essential workers do not enjoy essential rights, and the long-standing systemic problems with the temporary foreign work program that puts workers in an extremely precarious position,” she said during the video conference.

The rally is part of the Amnesty for Undocumented Workers Campaign led by the Migrant Workers Centre.

The campaign calls on the federal government to create a new permanent residency program for all essential migrant and undocumented workers, and to allow the workers to apply for an open-work permit while waiting for their applications to process.

No one at the Department of Immigration, Refugees and Citizenship Canada could immediately be reached for comment.

On July 31, the federal government announced $58.6 million in funding that it said would boost protections for temporary foreign workers and address COVID-19 outbreaks on farms.

Of that, $35 million was earmarked to improve health and safety on farms and in employee living quarters to prevent the spread of COVID-19. About $7.4 million would support the workers, including $6 million for direct outreach delivered through migrant support organizations, the government said.

‘Recognizes precarious status’

The government also said it was working to develop mandatory requirements to improve living conditions in employer-provided accommodations.

In August, Immigration Minister Marco Mendicino announced a temporary measure to provide a pathway to permanent residency for asylum claimants working in health-care during the pandemic.

Under the measure, the front-line workers would be able to apply for permanent residency if they met certain criteria, including having made an asylum claim before March 13 and having been issued a work permit after their claim.

“This approach recognizes those with precarious immigration status who are filling an urgent need and putting their own lives at risk to care for others in Canada,” the government said in a news release.


Natalie Drolet, executive director of the Migrant Workers Centre, said the measure excludes other front-line workers like grocery store clerks, truckers and care workers.

“While this is a positive step, it leaves too many migrant workers and undocumented workers behind who have also been on the front lines in the pandemic,” Drolet said.

Migrants and undocumented workers play key roles as health-care workers, grocery store clerks, cleaners, care workers, truckers and agricultural workers, Arma said.

More than 1,300 migrant workers in Ontario alone have been infected with COVID-19, she said. Three have died, including one undocumented worker, she said.

‘Fear of being removed’

Arma came to Canada in 2005 to work as a caregiver. Her temporary status in Canada gave her stress and anxiety, she said.

“I had papers, I had documents, and yet I had that fear of being removed, a fear of speaking up because I might be deported,” she said.

“I can imagine how undocumented workers are experiencing even worse because of the lack of documents they have.”

Demonstrators called for paid sick days and better protections for migrant workers at a rally in Halifax on Labour Day. (Jeorge Sadi/CBC)

Maria Cano arrived to work as a caregiver in 2017 through the temporary foreign worker program. She said the experience showed how disempowering the experience could be, even before the pandemic struck.

Cano worked for four different families and moved to three different cities in her first few years. They expected her to work long hours without compensation, she said.

“When I spoke up, I lost my job,” she said. “That entire process was very stressful and financially draining.”

She finally found a “nice Canadian family” who treated her with respect and sponsored her but said others shouldn’t hope for the same luck — they should be protected with recognized rights instead.

“The COVID-19 pandemic makes it more difficult and stressful for all the undocumented and migrant workers in Canada,” she said.

Beginning Dec. 15, the B.C. government will require employers wishing to hire foreign workers through federal programs to register with the province.

The government said in a news release Saturday that the measures would ensure the workers are paid for the hours they work, have accurate job descriptions and ensure their rights and safety are protected on the job.

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Coronavirus: Undocumented workers an ‘invisible public health risk’

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“Clara” said she was too scared to call the 111 helpline if she gets sick

There are an estimated one million undocumented workers in the UK. The coronavirus pandemic has presented them with a new set of challenges and fears over how to maintain an income, remain healthy or even stay alive.

On an old square television in a shared house in a suburb of London, Filipina nanny Carla watches the government coronavirus daily briefings well aware the updates are not intended for her.

Carla, whose name – along with others in this article – has been changed to protect her identity, is among an estimated one million undocumented workers living in the UK.

Of the 12 tenants living in the house, only one has the right to work in the country – a nurse working for the NHS on the front line of the pandemic.

“We are worried for her and worried for ourselves,” Carla said over an encrypted messenger app.

‘I fear for my family’

She was speaking over her six-month-old baby’s cries and sporadically broke down in tears herself.

“I fear for my family. If I get sick I won’t have anywhere to self-isolate,” she told the BBC.

For seven years Carla has worked illegally as a domestic worker in London’s grey economy, caring for the elderly and working as a nanny for various families.

Before the lockdown she would send part of her salary to her relatives in the Philippines.

With no access to the financial assistance announced by the UK government, Carla found herself down to her last £3.

“If I get sick, I’m afraid to phone the 111 helpline. They will find out that I don’t have papers,” she said.

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PA Media

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Many undocumented workers fear seeking medical help fearing they will face immigration enforcement if identified

As the lockdown eases across England, charities have said they fear London’s undocumented workers could be among the most vulnerable in society.

Despite reassurances from the government that the NHS would not carry out immigration checks in hospitals, many undocumented workers have worried about seeking medical help.

“The consequences have been tragic,” said Susan Cueva, from Kanlungan Filipino consortium, an alliance of Filipino nationals in the UK.

“Some refuse to get help despite the fact their situation is deteriorating.”

Risk of starving

Ms Cueva estimated there could be as many as 10,000 undocumented Filipino carers and domestic workers in the country.

Charities fear they represent an invisible public health risk.

Undocumented workers are at risk not only of contracting Covid-19, but also starving because of the crisis created by the pandemic.

“We are also front-line workers,” said Shell, an undocumented carer from the Philippines.

“We know it’s against the law. We do the work people don’t want to do.

“We try our best not to be a burden for the country. If they give us a chance to work we will pay taxes.”

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Many undocumented workers enter the UK on legal visas

There are no exact numbers of undocumented workers living in the UK.

In 2017, Pew Research Centre claimed there may have been between 800,000 and 1.2 million unauthorised migrants living in the UK.

“The government lost count a long time ago and never wanted to confront the question of numbers,” said Dr Rhetta Moran from Rapar, a human rights charity.

She has been campaigning for the government to provide housing and healthcare for all during the pandemic, irrespective of their status.

Undocumented workers have varied back stories and experiences.

Some have overstayed their visas and begun working in the illegal economy.

Many travelled to the UK to seek asylum but had their applications rejected. Some have been smuggled into the country.

“I was trafficked multiple times and finally boarded a ship which took me to the UK,” said Mrs Zhao, a restaurant worker, who has lived in the UK for 12 years.

She spoke to the BBC through the Chinese Information and Advice centre, under the condition of anonymity.

During the lockdown many have been relying on communities for financial support.

“I am glad that I managed to get this far,” she said.

“Most of the time my mind is blank but luckily my friends who are in similar situations are being very supportive and caring.”

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Getty Images

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Undocumented workers could become more vulnerable to modern-day slavery because of lockdown

Jean has been self-isolating in a west London house since the lockdown began in March.

The Jamaican national has been living in the UK for more than a decade and pays rent to a family of five who sublet her a tiny room.

She entered the country on a student visa and worked part time to support her studies but when she changed colleges her visa application was rejected and Jean became an undocumented worker.

Via WhatsApp she tells me: “I sometimes feel like I’m British. I talk like them.

“Now I feel if I could run away from here I would, but borders are closed and there are no flights.

“Even if there were flights and if I went home they would treat me so badly and say ‘you brought the virus into the country’.”

‘I don’t know how to survive’

As the lockdown eased Jean said she became aware of the risks of returning to work.

“I think now I am becoming more vulnerable to everything,” she said.

Last month the domestic worker was called by her long-term employer and asked to return.

She was paid one day’s wages for three days of work. After complaining she was asked not to return.

“I don’t know what to do. I don’t want to get trapped again. I don’t know how to survive.”

She now faces a greater risk of exploitation and fears she could fall victim to modern-day slavery.

With no income for the duration of the lockdown and no government support, she says she must now accept more risky work.

Jean said she felt unsafe in her own home and her landlord was demanding she paid a lump sum of rent owed that she did not pay during the lockdown.

“He keeps banging on my door and asking me to give him money,” she said.

Charities have said illegal workers faced new risks of exploitation when returning to employment.

And charity groups fear undocumented migrants would now face challenges beyond the coronavirus.

“As the coronavirus pandemic continues to unfold, many workers have already lost their jobs,” said Matt Friedman from Mekong Club, an anti-slavery charity.

Natural disasters around the world usually lead to a rise in modern-day slavery and human trafficking, Mr Friedman says.

He expects to see a rise in the number of people trafficked into cities like London once borders reopen while illegal migrants face greater exploitation.

Mr Friedman says: “With few options available to them, these people often become desperate.

“This combination of factors significantly increases the potential for human traffickers to take advantage of this vulnerability.”

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