by Steffani Powell
The last four years have seen a relentless attack on immigrants and our immigration system. President Trump may not have succeeded in building his promised physical wall, but he was remarkably successful at building a bureaucratic wall around the country. Every part of our immigration system has been affected, and in many cases, almost completely undone. Although many of the policy changes took place before 2020, Trump used the pandemic to justify an accelerated destruction of our structures and policies on legal immigration, naturalization, refugees and asylum.
Immigrant rights groups are hopeful that President-elect Biden will right these wrongs, but hundreds of policies, including the Muslim and refugee bans, the Healthcare ban, Covid-19 immigrant and non-immigrant visa bans, and the expansion of the public charge system, will need to be undone. This will take some time. Undoing the harm of the last four years will require careful administrative advocacy combined with litigation and legislative action.
The First Hundred Days
The incoming administration has indicated that during the first 100 days they will:
1. Place a moratorium on all deportations. During the moratorium, they will:
2. Revise removal priorities. Currently the enforcement apparatus does not have meaningful priorities – everyone is a priority. For example, people who have been in the U.S. for 40 years are treated the same as new arrivals.
3. Restore Deferred Action for Childhood Arrivals [DACA] to its original state, which includes accepting new applications, not just renewal applications.
4. Review Temporary Protected Status [TPS] designations and possibly restore TPS to folks who are currently in limbo [i.e., people from El Salvador].
5. Reverse bans on H1b and J1 visas [work related non-immigrant visas].
6. Invoke Parole in Place as an option for folks who are at imminent risk of deportation. Parole in Place allows some people who entered the U.S. without inspection to obtain an unlawful entry/presence waiver and adjust their status to lawful status without leaving the country.
7. Send an immigrant legalization bill to Congress. This of course will depend on who has control of the Senate, and any bill will be in competition with other priorities such as Covid-19, healthcare, and the economy.
The border and asylum
Regarding the border and asylum, the incoming administration has signaled that it will:
1. Review/revise Migrant Protection Protocols, including the policy which requires (non-Mexican) asylum seekers to wait in Mexico while their asylum claims are decided in U.S. courts.
2. End the third country transit bar which required immigrants to apply for asylum in a country they passed through on the way to the U.S.
3. Review and rescind the CDC order which gives border agents the authority to immediately expel migrants, including refugees and asylum seekers.
Detention and Enforcement
Regarding Detention and Enforcement, the incoming administration has signaled that it will:
1. Commit to consider ending for-profit detention and replace it with community-based case management. Groups advising the incoming administration are prepared to roll out a nationwide survey of non-profit organizations to determine interest in community-based case management of folks who have notices to appear before immigration court. In this scenario, the government contracts with non-profits, not detention centers. Nonprofits will run shelters and group homes and coordinate needed services for immigrant residents.
2. Reduce funding for detention. U.S. has a daily capacity of 50,000 beds to hold folks apprehended by immigration officials. In the appropriations budget, advocates expect to see a substantial reduction in funding for immigration detention.
3. Return to the use of Parole as an advocacy tool. Immigration and Customs Enforcement [ICE] has statutory discretion to release individuals from custody due to medical or humanitarian concerns. But the current parole system is broken and ICE has not been willing to exercise authority or discretion under any circumstances.
4. Restore enforcement priorities, with prosecutorial discretion in place once again.
5. End worksite raids.
Regarding Immigration courts, the incoming administration has signaled that it will:
1. Resume normal, apolitical hiring of judges and staff – over the last four years immigration judges were hired based on their political opinions.
2. Revisit and hopefully, restore judicial discretion, which allowed judges some leeway to assess immigration cases. Judicial discretion has been severely restricted under the current administration. This would include administrative closure—the ability to temporarily close a case or remove it from the docket of active cases—and prosecutorial discretion—the ability to decide whether or not to prosecute—if an immigrant is not a priority for removal.
What can President-Elect Biden accomplish on his own?
1. He can rescind the Public Charge Rule. The Trump administration expanded the public charge rule which restricted immigrant visa eligibility for family members who could not meet income eligibility requirements. Essentially, it was a wealth test for immigrants.
2. He can reinstate DACA in its original form, which includes accepting new applications.
3. He can rescind presidential proclamations made by the Trump administration to halt immigrant visa and non-immigrant visa approvals.
4. He can rescind de-Naturalization efforts.
5. He can rescind the Muslim Travel Ban.
6. He can restore Refugee Resettlement to previous levels.
7. He can rescind the Remain in Mexico policy for asylum applicants.
8. Although they have not mentioned this specifically, it is fully expected that the incoming administration will roll back expanded expedited removal, and limit its application once again to folks who are apprehended in the U.S. less than 14 days after arrival and up to 100 miles from the border. The recently expanded version applies to anyone in the U.S. who cannot demonstrate on the spot that they have resided in the U.S. for more than 2 years.
What will require legislation passed by Congress?
The incoming administration is committed to a reform bill or a legislative fix for 11 million undocumented folks in the country. However, the political environment for immigration reform will be challenging.
Depending on political appointees to Department of Homeland Security agencies [ICE/CBP/USCIS] and Department of Justice [the Civil Division oversees immigration], cases which are currently pending could be settled or dismissed as no longer necessary.
There were over 900 new immigration-related policies under the current administration. These will take time to undo and litigate where necessary.
Additionally, new lawsuits are expected to be filed to contest the rush of new regulations coming in after last minute “midnight” rule-making sessions designed to advance the Trump administration’s policies.
The incoming administration will have to carefully go through the process of rescinding some of these policies. For example: the Supreme Court ruled against Trump on DACA because his administration had not rescinded DACA properly. The lesson learned is the fragility of executive orders. The Biden administration must be careful to dot its “i”s and cross its “t”s as they attempt to rescind some of the most harmful of Trump’s 900 policies.
"Buckets" of Litigation
Under President-Elect Biden’s administration, we expect to see 3 buckets of litigation:
I. DACA/Muslim Ban/Refugee Ban/Public Charge/Temporary Protected Status:
An example of what TPS litigation might look like would be for the Biden administration to settle lawsuits filed against the Trump administration’s efforts to rescind TPS designation to various groups. Just about every large-scale policy change implemented by the current administration was met with a lawsuit. Many of those lawsuits are still pending or in various stages of appeal. Once the incoming administration is a party to the suit, they may decide to settle or withdraw altogether. Lawsuits in this category may simply melt away.
2. Policies that were bad, even under previous administrations:
An example is family detention, which began under former Present Obama. It is expected that policies like this will continue to be litigated. It will be interesting to see how President-elect Biden’s administration responds.
3. Litigation that will continue for some time:
Examples are: due process in detention and immigration court; access to representation; the FOIA (Freedom of Information Act) process and issues; and efforts to repeal Section 1325 and 1326 [unlawful entry and unlawful re-entry] under the federal criminal statutes.
Picking Through the Minefield
With just under a month left before the end of the Trump administration’s reign and final walk out the door, they are burning down the house. They are gutting the infrastructure and agencies that will be needed to process immigration requests when and if our immigration system recovers from four years of their constant attacks. The Biden administration will have to hit the ground running hard in order to, at minimum, restore the quasi-functioning immigration system which the Trump administration inherited and then quickly dismantled and destroyed.
We can imagine the current immigration landscape resembles a field of landmines. On day 1 Biden cannot safely sweep the field clean. He and his administration will have to pick through the field, policy by policy, undoing very carefully the over 900 mines, while attempting to work across the aisle with resistant members of congress.
Yet the ideal would be to not only restore what we had prior to 2016, but rework the entire immigration system. Such systemic change would hopefully include: independent immigration courts, welcoming processes at the border, restoring discretion to the immigration enforcement system, creating a path to citizenship, returning the U.S. Citizenship and Immigration Service to a benefits agency, and overhauling the legal immigration system. It is a daunting ask. We, the immigrant community and allies, can be hopeful, but we must still concentrate our efforts on keeping the new administration focused and accountable.