Trump’s aggressive stance with visa holders and legal immigrants breaks with conservative principle

Earlier this month, Michelle Gutierrez was coming to the U.S. to visit her mother and stepfather in Maryland. This was a trip she had made frequently, never overstaying her visa and always returning home to Mexico. But on August 4, Customs and Border Protection agents denied her entry to the country during a Houston stopover and barred her from the U.S. for five years. The agents decided that Gutierrez, traveling with her U.S.-born infant, was likely to try and stay in the country illegally. They cited her use of U.S. government benefits in 2016 as one factor in her exclusion.

Gutierrez’ experience is instructive because she is not an immigrant. She is a businesswoman from Mexico who was trying to visit her aging relatives.  In ways both small and large, her case provides a glimpse of how the Trump administration is reshaping immigration policy. It illuminates the fundamental cruelty of this administration when it comes to anything related to immigration – as well as how Trump’s policies can break apart even law-abiding families. 

{mosads}Border officials have significant discretion in determining who is allowed to come into the U.S. In Gutierrez’s case, agents judged her to be an “intending immigrant” – a visitor likely to overstay their visa and remain in the country without authorization.  This determination overlooked the facts that Gutierrez’s business and husband are in Mexico, and that she had previously used her tourist visa to enter (and exit) the U.S. in full compliance with the law.

Under past administrations, Gutierrez probably would not have found herself in this predicament.  What’s different now is that her experience reflects a new policy being formulated by Trump advisor Stephen Miller that could deny visas, green cards, or citizenship to applicants if they – or anyone in their household – are found to have used some government benefits.

In Gutierrez’s case, on a 2016 visit to the U.S. while pregnant, she was diagnosed with pre-gestational diabetes. With her valid tourist visa, she was eligible for and used Medicaid and CHIP. Two years later, her legal use of these programs was named as one reason to bar her from the country.

While Miller’s proposal has already negatively impacted Gutierrez, on a broader scale such a change in immigration policy could have enormous consequences.  Experts told NBC News that Miller’s plan represents the biggest change to legal immigration in decades, and that it could affect more than 20 million immigrants.

What Miller is trying to do is expand the definition of “public charge” under U.S. law.  For decades, the likelihood of someone being a “public charge,” or dependent on the government for subsistence, has been grounds for denying a potential immigrant permanent residency or citizenship. Under Miller’s plan, the definition of “public charge” would be broadened to include anyone who has used subsidies available under the Affordable Care Act, some forms of Medicaid, the Earned Income Tax Credit, food stamps, or the Children’s Health Insurance Program (CHIP).

To be clear, Miller’s plan is not aimed at undocumented immigrants. It targets legal immigrants and people like Gutierrez, who are valid visa holders. That marks a break with the traditional conservative principle of only being against illegal immigration.  His proposal is troubling because it doesn’t just take into account a potential immigrant’s use of government benefits. It also takes into account benefits used by any member of their household. This could include citizen children, family members, or perhaps even roommates. 

Miller’s plan is not yet law. However, according to the Washington Post, the State Department’s foreign affairs manual is instructing consular officials to consider the use of public benefits in deciding whether to issue visas. 

It’s hard to see what policy goal is served by a crackdown on legal immigrants. According to data from U.S. Citizenship and Naturalization Services, immigrants and native-born citizens use government services at roughly the same levels, although immigrants face limits on which services they can access. Holding the use of Obamacare or CHIP against prospective immigrants means that they will be discouraged from using these programs, which could endanger the health of non-immigrants as well.  And when Congress set the eligibility requirements for programs like CHIP, it could have excluded the children of immigrants but did not.  So Miller’s proposal can be seen as an improper end-run around congressional authority. 

True, no one likes the idea of immigrants scamming off of our welfare system at taxpayer expense.  Yet that trope is largely a myth, while there is ample evidence that immigrants are net positive to our economy and our country. Besides, closing off legal channels of immigration may well have the unintended consequence of increasing illegal immigration.

Gutierrez should not have been turned away at the Houston airport. Neither she, nor other lawful visa-holders or immigrants, deserve to be punished for accessing benefits to which they are entitled by law.  

Raul A. Reyes is an immigration attorney and member of the USA Today Board of Contributors.  A graduate of Harvard University and Columbia Law School, he is also a contributor to NBCNews.com and CNN Opinion. You can follow him on Twitter at @RaulAReyes, Instagram: raulareyes1.