Five issues the Biden administration must address on immigration

The electoral victory of Joe Biden over Donald Trump is cause for relief and celebration for many, but perhaps none more than immigrants and those who work to protect their rights. For four years, the Trump administration actively and openly worked to undermine legal protections for immigrants coming to or residing in the United States and instituted draconian policies designed to terrorize, brutalize, and criminalize immigrants. Now, as the country prepares for a new administration, many are wondering what immediate steps Biden may take to address the damage done by Trump on immigration. 

According to the New York Times, the Trump administration enacted more than 400 changes to the immigration process. Some of those policy changes were implemented through executive orders, which can easily be overturned, while others went through the full regulatory process and will take time to change.

As attorneys and advocates at Immigrant Legal Defense (ILD), we remain committed to protecting all immigrants' dignity and due process and will demand accountability from every presidential administration. The following are five critical areas the Biden administration must address to correct the wrongs our immigrant communities face. 

Protect DACA

The Biden administration should take immediate steps to protect and restore the Deferred Action for Childhood Arrivals (DACA) program, something which he pledged to do during his campaign. The Trump administration sought to end the DACA program in 2017, resulting in a lengthy legal battle and leaving more than 800,000 DACA recipients in limbo for years. 

Protecting and restoring the DACA program would not only provide DACA recipients with stability and support and allow for new applications but also help restore trust and faith between federal officials and immigrant communities. This trust is more critical now than ever as our society works to come together to confront challenges like COVID-19 and economic instability.

The restoration of DACA should be viewed as a simple and immediate step of a broader push to provide Dreamers and other immigrants a pathway to full citizenship, but it is an important place to start for the Biden presidency. Because DACA was initiated through an executive action, it is squarely within the President’s purview to restore the program, though a more permanent solution to the issue will need to come from Congress.

Uphold TPS Status

A similar opportunity for immediate action for the incoming Biden administration exists on the issue of Temporary Protected Status (TPS), which, like DACA, has left the fate of hundreds of thousands of immigrants in limbo for years. The sudden loss of status for TPS holders, some of whom have been residing in the United States for decades, would be disastrous, especially during a global pandemic. 

Read more about the fight over TPS in our previous blog posts here. 

Unlike DACA, which provides protection to a class of undocumented immigrants based on specific criteria, TPS status has been awarded to individuals from various countries at different periods of time based on conditions in their home country. As a result, any decision to include or exclude certain subgroups can present certain complications. For example, some may argue that TPS should end for certain countries that are no longer the scene of specific conflicts or humanitarian disasters. Advocates would counter that many of those countries now face new challenges that will make them unsafe for return and that those who have resided in the United States, often with mixed-status families, should be allowed to stay. 

Taken in the context of the prior four years, the global pandemic, and the need to favor inclusion over exclusion, the restoration of TPS across the board should serve as a natural starting point for the Biden administration.

The Biden campaign stopped short of promising to keep TPS in place across the board and instead promised to “immediately review every TPS decision made by the Trump administration and overturn all those that do not appropriately consider the facts on the ground.” 

The issue could serve as an early indication as to whether the Biden administration will seek to promote policies focused on compassion, providing humanitarian relief, and ensuring family unity or pursue a hard-line approach on these issues. 

Abolish ICE & Detention

The Trump administration will go down in history for its barbaric treatment of immigrants, weaponizing federal agencies as tools for fear, family separation, and the detention of immigrants. One of the central pillars of the Trump administration's reign of terror against immigrants was the utilization of Immigration and Customs Enforcement (ICE) as a tool to spread panic, conduct raids, and expand detention. 

Although the use of ICE to conduct raids and facilitate detention was not unique to the Trump administration, with many rightly pointing out that the Obama administration also carried out immigration raids, it was the callous cruelty and malice with which ICE operated under Trump that has led many to call for the abolition of the agency as a whole.

In July of 2019, Trump attempted to use the threat of mass raids to force Congress to pass legislation on asylum, effectively holding undocumented communities hostage and using federal agencies as stormtroopers in communities of color. Countless examples of ICE abuse and cruelty were documented during his tenure, arguably peaking in 2020 when news came out of forced hysterectomies in ICE detention and a dramatic increase in deaths in detention. 

This track record is the reason why so many believe that ICE should be abolished as an institution, along with immigrant detention, which is both needless, cruel, and counterproductive. After so much horror and heartbreak, the Biden administration should reimagine immigration detention policy by dismantling this rogue agency.

To date, Biden has not made a clear commitment to dismantle ICE, though he has promised to end the use of for-profit corporations, which make up more than half of all detention facilities nationwide. Biden has also committed to implementing a “100-day freeze on deportations while his administration issues guidance” on enforcement priorities. 

As a result, it is important for advocates and allies of immigrants to ensure that the Biden administration does not simply revert to Obama-era policies on enforcement and detention, which resulted in a broad-based detention system and millions of deportations.

Change Border Policies and Safeguard Asylum

There is perhaps no clearer example of the Trump administration’s cruelty than its policies at U.S. borders, including the “Muslim” travel ban, the destruction of asylum protections, and inhumane family separation. Each of these policies had devastating impacts on individuals and their families and resulted in needless suffering for millions of people. The treatment of immigrants, migrants, and asylum seekers at the border forms the foundation of immigration policies and practice, and careful attention should be paid to what the Biden administration does in this arena. 

Biden has made a commitment to immediately end the travel ban as soon as he begins his term, and has pledged to “[R]eassert America’s commitment to asylum-seekers and refugees”, claiming that he will take steps to reverse Trump border and asylum policies within 100 days of being in power. According to a New York Times report, “Mr. Biden also plans to raise the cap on refugee admissions to 125,000, impose a 100-day moratorium on deportations, and direct Immigration and Customs Enforcement to focus on violent offenders.” In addition, Biden has also indicated that he will reverse draconian measures at the U.S.-Mexico border, including the “Remain in Mexico” program, which forced migrants seeking asylum in the U.S. to remain in Mexico while they awaited their day in court. 

Many of these reversals are a welcome sign for advocates and asylum seekers, though the Biden administration has yet to provide specifics about an affirmative agenda related to asylum and migrants. It is imperative to not only demand that the Biden administration safeguard asylum laws but also a clear push to defund agencies such as ICE and CBP, which enforce family separation and invest in institutions that help resettle migrants, reunify families, and expand asylum to adapt to the modern and future challenges posed by climate change, global inequality, and mass displacement. 

Restore Trust in the Process

One of the most serious and devastating blows to the immigration process in this country under the Trump administration has been the erosion of trust, transparency, and fairness in the immigration process. This includes the destruction of due process, accountability, and fairness in immigration courts, the use of executive orders to attack immigrants, or the shift of United States Citizenship and Immigration Services (USCIS) from an agency designed to confer benefits to an agency of exclusion, led by an alleged white supremacist. A hallmark of the Trump era has been to undermine or disrupt all levels of the immigration process, severely restricting legal immigration into the country.

The impacts of these policies on America’s immigration process are significant and will likely take years to undo. The process will include attempting to deal with millions of cases that have been disrupted or denied proper adjudication before agencies like USCIS, the Department of State, and the immigration courts, while the longer-standing challenge will be to repair faith between these institutions and those who access or work with them. It is difficult to estimate the impact that these policies have had on immigrants awaiting a visa appointment abroad or those inside the country seeking to apply for benefits, but it is not difficult to believe that serious damage has been done.

To begin the process of restoration and healing, the Biden administration should make time and space to meet with community members, impacted people, and advocates in order to develop partnerships and solutions to move forward. Careful consideration should be paid to restoring due process, transparency, and fairness in the immigration process. Restoring trust can also begin with repealing and removing policies that increase fees for immigration applications, expedite deportations, or seek to deny immigrants status based on their use of certain types of public assistance.

This process will not happen overnight, but the early steps of the Biden administration will go a long way in building an immigration platform that works for everyone. 

Each of these five areas will provide a critical test for the Biden administration's ability to work with and protect immigrants and will require renewed dedication and vigilance from advocates and organizers. The election of Biden is certainly a reason for optimism, but we must continue to demand immediate restoration, protection, and expansion of the rights of our communities.

As we prepare for the transition to a new presidency, ILD will remain steadfast and determined in advocating for our clients, our community, and a country made by and for immigrants.  

AB 32 and the Future of Immigration Detention in California

On October 9th, a federal judge ruled that AB 32, a California law that bans the use of privately operated prisons and immigration detention facilities, is largely constitutional in a landmark decision with broad implications. The decision, issued by U.S. District Judge Janis Sammartino, found that AB 32 only regulates private prison operators and thus does not interfere with the federal government's operations. The ruling is a major blow to private prison corporations and Immigration and Customs Enforcement (ICE), both of whom sued California after Governor Gavin Newsom signed AB 32 into law in October of 2019. 

AB 32 bans the use of all private detention facilities in the state and requires all facilities to close upon the completion of their contracts. At the time of the bill’s signing, multiple immigration detention facilities were slated to close in 2020 until ICE and private prison companies signed new contracts for the four private facilities in operation in the state. The contracts secured just weeks before the January 1 start date for the law were slammed by advocates and Congressional officials as an illicit scheme to circumvent the law. 

Following the signing of those contracts, the GEO Group Inc., the second largest private prison corporation in the world, and ICE sued the state of California and asked a federal court to strike down AB 32 as unlawful. GEO also asked the court to find that the contracts they signed with the federal government were valid. The contracts at issue were reported to be five-year contracts, with two additional five-year options totaling fifteen years and valued in the billions of dollars. GEO specifically asked the court to deem the full fifteen-year terms of the various contracts as valid under AB 32 despite the bill not allowing for contract extensions. 

In anticipation of the hearing, Immigrant Legal Defense (ILD) and Immigrant Defense Advocates (IDA) filed an amicus brief with the court, which underscored the GEO Group’s history of bad faith behavior in the state of California and specifically challenged the validity of the contracts signed in December 2019, urging the court not to uphold them as valid. 

In a 75-page decision, Judge Sammartino noted that California has the right to regulate conditions of confinement and protect the health and safety of individuals in detention, writing, “The regulation of health and safety matters is primarily, and historically, a matter of local concern” and noted AB 32 “appears to be a regulation ensuring the health and welfare of inmates and detainees within California’s borders.”

With respect to the contracts at issue, Sammartino appears to have agreed with arguments raised by ILD and IDA in their brief, arguing that her court did not have jurisdiction to decide the fate of the contracts. “The Court continues to harbor some doubts—although styled as a claim against the State of California, GEO’s fourth cause of action, at heart, seeks a “declaration of contract rights against the government,” over which the Court would lack jurisdiction.”

Despite her noted reservation, Sammartino took up the issue and denied GEO’s request to find the additional five-year options in the contracts as valid under AB 32. “It appears unlikely that GEO will succeed in arguing that the options are not such extensions,” she wrote. 

In her final decision, Sammartino did exempt the application of AB 32 to facilities operated by the U.S. Marshals Service, finding that the law would serve as an obstacle to the federal government in their capacity to contract with private operators to detain prisoners in federal custody. Sammartino pointed to explicit statutory language authorizing the U.S. Marshals to pursue such contracts as a basis for her ruling, noting that no equivalent Congressional authority exists concerning ICE’s power to detain individuals in civil immigration detention. 

Advocates and organizers celebrated the legal victory as a major win for those who have fought to pass AB 32 and worked to close detention facilities in the state. Jackie Gonzalez, Policy Director for Immigrant Defense Advocates, told the Desert Sun, “This bill is part of a broader strategy to end all forms of unnecessary detention. We feel vindicated by the court upholding California’s authority to protect the health and welfare of detained individuals, who for far too long have been subjected to horrid abuses by these corporations.”

The Future of Detention in California and Beyond

The ruling is the latest chapter in an ongoing battle between advocates and private prison corporations in California over what a state can and cannot do with respect to the regulation of private detention facilities. Over the years, California has passed notable pieces of legislation to curb immigrant detention and protect those detained, including SB 29, which prevents local states and counties from contracting with ICE, and AB 103, which allows the Attorney General to inspect detention facilities. Each of these bills has faced legal challenges as part of a tug-of-war over the detention of immigrants. 

AB 32 preceded a push by ICE and private prison corporations to expand private bed space in the state after multiple California counties decided to end their contracts with ICE to house immigrants in local jails. Advocates have long argued that closing detention facilities and eliminating bed space could serve as a deterrent to ICE enforcement and detention. 

After AB 32 was signed into law, many lauded it as “a model for the nation”, while ICE and GEO moved quickly to undercut its viability, lest other states follow suit. However, with this month's ruling, GEO and ICE received a double blow, not only losing in their bid to strike down AB 32 but facing the prospect that the fifteen-year contracts that they tried so hard to secure may now face serious legal jeopardy. 

The ruling by Judge Sammartino will almost certainly be appealed, and while the main focus will be the constitutionality of AB 32, the validity of the contracts in question is no small matter. Under the current ruling, the California Attorney General may choose to enforce AB 32 against private facilities after the completion of the first five-year term of the contracts. This could result in a scenario in which ICE will be forced to shut down five out of the six detention facilities in the state by 2025. 

To further complicate matters, Democratic presidential nominee Joe Biden has gone on record saying his administration will “make clear that the federal government should not use private facilities for any detention, including detention of undocumented immigrants.” As a result, the future of these facilities may be at issue even sooner than five years, particularly given the scrutiny of the contracts received last fall by elected officials at the federal level. The solicitation of the contracts was the subject of a congressional letter signed by U.S. Representative Zoe Lofgren (D-CA), Representative Jerrold Nadler (D-NY), and Senator Kamala D. Harris (D-CA), among others, which challenged the legality and manner of the federal procurement process. 

Putting California aside, the ruling also allows the bill to stand as a model for other states, meaning that even if Trump remains in office, the potential exists for other states to pass legislation designed to close both private prisons and civil detention facilities. The arguments in favor of this type of state action are further bolstered by the COVID-19 pandemic and the failure of ICE and private operators to protect the health and safety of those in detention. 

While advocates, organizers, and detainees continue their fight against private operators and ICE, one thing is for certain: California is not only the front line for the fight to end private detention but stands as a north star for other states to follow.

Legal Decisions Place TPS Status in Jeopardy for Many

On September 14, 2020, the Ninth Circuit Court of Appeals issued a decision in Ramos v. Wolf that allowed the termination of TPS (Temporary Protected Status) to move forward for El Salvador, Nicaragua, and Sudan and paved the way for the termination of TPS for individuals from Honduras and Nepal.  The decision reversed a lower court decision that had previously blocked the Trump Administration from ending TPS from those countries in 2017 and 2018.  While the Ninth Circuit also upheld the termination of TPS for Haitians, a separate injunction currently preventing the termination of TPS for Haitians remains in place. 

Last week’s court decision has jeopardized hundreds of thousands of TPS recipients.  TPS was established in 1990 by Congress under the Immigration Act of 1990, allowing the Secretary of DHS to consult with various government agencies in order to designate specific countries for TPS.  Temporary Protected Status is a form of temporary relief and work authorization provided to immigrants from certain countries experiencing a national crisis, including war or armed conflict, environmental disasters, or other emergency circumstances that make a safe return difficult or impossible.  Individuals receiving TPS cannot be deported from the United States and are eligible for a work permit.  

The primary countries affected by the Ninth Circuit ruling include El Salvador, Nicaragua, and Sudan, with an estimated 300,000 individuals impacted, many of whom have lived in the United States for decades. The decision may also impact the status of some 65,000 TPS holders from Honduras and Nepal who were involved in a companion lawsuit.  Without TPS and its protection against deportation, these individuals could face removal unless they obtain legal status through other means. 

Under the Trump administration, advocates have grown increasingly concerned that TPS-related policy is no longer based on humanitarian concerns and have criticized the administration for failing to provide a legal pathway to obtain status for individuals who have resided in the country for decades.  Advocates instead view the termination of TPS as motivated by xenophobic and anti-immigrant sentiments within the administration. 

Ahilan Arulanantham, senior counsel of the American Civil Liberties Union Foundation of Southern California, who represents TPS recipients in the lawsuit, issued a statement after the decision: “The president’s vile statements about TPS holders made perfectly clear that his administration acted out of racial animus.  The Constitution does not permit policy to be driven by racism.  We will seek further review of the court’s decision.”

However, even if last week’s ruling is upheld, it does not mean an immediate termination of TPS status for individuals from those affected countries. The U.S. Department of Homeland Security had previously stated that any termination of status for TPS recipients from Honduras, Nepal, Nicaragua, and Sudan would take effect no earlier than 120 days from the issuance of any appellate mandate to the district court and no earlier than 365 days for TPS recipients from El Salvador. 

This means that TPS recipients from Honduras, Nepal, Nicaragua, and Sudan will continue to have TPS “until at least March 5, 2021, and those from El Salvador until at least November 5, 2021.” 

Since both those dates are after the 2020 Presidential election, advocates are hopeful that if we have a change in administration, there is a possibility for a legislative or administrative solution that does not result in hundreds of thousands losing TPS. 

TPS Recipients Returning from Authorized Travel Abroad Face Challenge 

In addition to the ruling by the Ninth Circuit, attorneys and advocates have expressed concern over a recent decision by the U.S. Citizenship and Immigration Services (USCIS) to designate Matter of Z‑R‑Z‑C, a decision by the Administrative Appeals Office (AAO) focused on TPS, as an adopted decision. The result of this would mean that USCIS would rely on this ruling in making agency-wide determinations on individual cases.

The decision holds that those who travel abroad with TPS (advance parole) and return to the United States using a DHS-issued travel document will not meet the requirement of being “inspected and admitted or paroled.”  This means they will not have a lawful entry under the law that they can use to apply for lawful permanent residency from within the United States.  This decision will only apply prospectively to TPS recipients who depart and return to the U.S. after August 20, 2020.

The decision presents a serious hurdle for individuals with TPS who may have been eligible to adjust their status in the United States once they returned from authorized travel and were designated as having been “inspected or admitted or paroled.” It is yet another cruel way in which the Trump administration has eliminated one of the few means of obtaining legal status for those with TPS in the United States.

To understand how this decision may impact you or your loved ones, please seek an individual consultation with a qualified immigration attorney.

Four Immigration Changes to Keep an Eye on in 2020

2020 has been a year of substantial changes to immigration law and policy. Here are four significant changes related to immigration to track in the coming months.

DACA and the future of the program

Following the Supreme Court’s ruling on June 18, 2020, declaring that the manner in which the Trump Administration ended the DACA program was unlawful, the future of this program, which protects undocumented youth immigrants, remains uncertain, with various potential outcomes on the table. 

In the weeks following the court's ruling, Trump had claimed that he was prepared to sign an executive order providing a pathway to citizenship for DACA applicants. However, details of this announcement have yet to be fully disclosed, with many expressing concern that the DACA program and its recipients are once again being used as political bargaining chips in Washington. 

The latest news on the program indicates that the Trump administration will not accept any new DACA applicants and will review the program in its entirety.  

On July 28th, the Department of Homeland Security (DHS) issued a  memorandum stating that the agency will:

• Reject new and pending initial requests for DACA;

• Reject new and pending requests for advanced parole absent exceptional circumstances; and,

• Shorten DACA renewal periods to one year instead of two years.

Be sure to check the USCIS DACA page for additional updates and guidance and discuss your particular case with an immigration attorney. For now, it appears too early to tell what the final resolution of all of this will be, but the one thing that seems certain is change is on the way. 

Increased fees for asylum and citizenship

In a move that many have decried as part of an ongoing agenda to reduce immigration and bar humanitarian relief, the Trump administration has announced a dramatic increase in immigration application fees, including an 80% increase for naturalization applications and a first-time fee for asylum applicants that will take effect on October 2, 2020.  For now, there is no proposed fee increase for DACA applications. 

Advocates have noted that the increase in fees for naturalization may be directly linked with an agenda to reduce the number of immigrants obtaining the right to vote in future elections. While the fee of $50 for asylum applications may appear to be nominal, it does send a clear message that the United States is not looking to greet asylum seekers with open arms.

The US now joins only three other countries in the world-- Australia, Fiji, and Iran -- in imposing asylum application fees.

Mass immigration restrictions during COVID-19

This year has been marked by a systematic attack on immigrants and their advocates. The federal executive has engaged in a methodical dismantling of asylum protections, a sharp narrowing of family-based immigration for all but the most wealthy of immigrants, and an all-out war on non-citizens who have contact with law enforcement or are in detention.

With the spread of the Coronavirus throughout the globe, the Trump administration has continued this attack and effectively shut down almost all forms of legal immigration to the United States.  Since January of 2020, there has been a reported 94% decline in non-immigrant visas. In addition to the suspension of visas, the administration has effectively halted the entry of migrants and asylum seekers at the border and limited the number of refugees in 2020 to less than 200.  Within the United States, there have been delays in issuing decisions on pending green card and naturalization applications.  

Immigration advocates have noted that the administration has seized the pandemic to achieve what many believe was long-desired goals, essentially ending legal immigration, particularly to migrants, asylum seekers, and those obtaining status through family petitions. 

"You would expect that during this massive public health and economic crisis that the administration's agenda would be sidelined, but instead, it's been as aggressive if not more aggressive than it's ever been," Sarah Pierce, a policy analyst at the Migration Policy Institute, a think tank based in Washington, told CNN in an interview. 

The systematic abuse of power against immigrants is not unique to the Trump administration, however, the anti-immigrant driven agenda, malice and lack of disregard for basic due process protections openly endorsed during a global pandemic is a disturbing affirmation of the xenophobic character of this administration. 

Federal court blocks “public charge” rule  

In a July 29, 2020 decision, Judge George Daniels of the U.S. District Court of the Southern District of New York temporarily blocked the Trump administration’s “public charge” rule.  This rule, which went into effect on February 24, 2020, is yet another attempt by the Trump administration to limit who can apply for lawful permanent residency for discriminatory reasons. 

In his decision, Judge Daniels stopped the Trump administration from continuing to enforce the public charge rule  “for any period during which there is a declared national emergency in response to the COVID-19 outbreak.”

While this decision is a victory for our community as it temporarily freezes the application of the “public charge” rule, this is not a final decision as the government is expected to appeal the ruling.  Given the rapidly changing situation and potential impact of the public charge rule, it is all the more critical to speak to a qualified immigration attorney about your individual case.

For more information about the lawsuit and your rights, click here. 

This blog post by ILD is intended for informational purposes only and should not be taken as legal advice.  If you have specific questions for yourself or your family, please contact ILD or another qualified immigration attorney.