U.S. Citizenship Act of 2021: Five Facts About Biden’s Immigration Proposal

The Biden administration has released details of its comprehensive immigration proposal, which promises to provide a pathway to citizenship for millions of immigrants. The bill, entitled the U.S. Citizenship Act of 2021, was sent to Congress on the first day of the Biden presidency. According to the administration, “The U.S. Citizenship Act of 2021 establishes a new system to manage and secure our border responsibly, keep our families and communities safe, and better manage migration across the Hemisphere.”

The following is a quick breakdown of the bill:

1.) The proposal is not yet law

The bill still needs to go through the legislative process before it officially becomes law. As a result, the timeline for when the bill may be passed remains unclear.  House Democrats recently stated that they are “Not quite ready” to move the bill forward, fearing they may still lack the vote necessary to pass the bill on the floor. 

2.) Creates a new form of status: lawful prospective immigrant (LPI)

The newly contemplated LPI status will provide undocumented immigrants with interim status while they are on their path to citizenship. Under the current proposal, LPI status would be valid for six years and may be renewed for another six years. Individuals with LPI status would be able to adjust their status to a lawful permanent resident (LPR) after five years of LPI status. 

In order to qualify for LPI status, a person must:

(1) have been continuously present in the U.S. from January 1, 2021, until the application is approved; and

(2) pay an application fee to cover processing costs and provide biometric and biographic data for a background check.

3.) Creates an expedited path to status for certain groups

The plan provides an expedited path for citizenship for certain groups, including agricultural workers, Deferred Action for Childhood Arrivals (DACA) recipients, and individuals with Temporary Protected Status (TPS). These groups will reportedly be immediately eligible for LPR status under the program, meaning they may receive a green card immediately and then apply for citizenship after five years of being an LPR.

4.) Allows individuals to apply for admission from outside the U.S., including individuals who have been deported

While the bill requires physical presence in the United States for those who wish to apply, it would provide a waiver for those who were deported on or after January 20, 2017, but had been physically present for at least three years prior to their deportation. Thus, individuals who were deported during the Trump presidency could seek a waiver to obtain residency. 

5.) Addresses root causes of migration 

The bill also intends to address the root causes of migration, particularly from the Northern Triangle countries of Guatemala, Honduras, and El Salvador. The bill provides for a “4-year strategy,” directing $4 billion dollars in funding from 2022 to 2025 to fund programs that alleviate violence, economic instability, and crime in these countries. 

The bill is an ambitious attempt to pass comprehensive immigration reform, though some advocates have noted that it still falls short of some expectations. Specifically, advocates contend that the bill continues to build on policies that exclude immigrants through a process of criminalization by denying citizenship to individuals who have certain prior convictions.

As the bill moves through the legislative process, it is important to understand that the law has not yet changed for those inside the United States, and the bill's final version may contain changes to the law as it currently stands. As always, we recommend that you not only track the process as it unfolds but that you consult with a qualified immigration attorney to understand your rights if and when the law does finally change. 

Read the Biden Administration’s Fact Sheet on the bill here. 

Understanding the Biden Administrations New Moratorium on Deportations

On January 20, 2021, President Joe Biden signed an Executive Order enacting a 100-day deportation moratorium in order for the Department of Homeland Security to conduct a “review of policies and practices concerning immigration enforcement.” The memo also puts into place interim policies with respect to immigration enforcement during the 100-day period, allowing the agency to proceed with certain types of enforcement and removal.

The move comes as the Biden administration seeks to undo many of the anti-immigrant policies enacted by the Trump administration, including policies related to detention, enforcement, and the southern border. The moratorium announcement comes as ICE has continued to arrest and detain people in the midst of the COVID-19 pandemic, with more than 14,000 immigrants detained nationwide. 

The memo went into effect on February 1, 2021, and quickly became the subject of litigation after being partially blocked from being enforced by a federal judge in Texas. 

The memo was welcomed by many immigration advocates after a four-year period in which the Trump administration essentially eliminated enforcement priorities and indiscriminately sought to terrorize and arrest as many undocumented individuals as possible. However, advocates have also noted that the idea of a return to Obama-era enforcement policies should not be accepted. 

Biden has gone on record saying that the high rate of deportations during the Obama administration was a “big mistake” and that Biden “vowed to do better.” Advocates tracking the issue have also vocally lamented the fact that the Biden administration has remained silent on ending the use of private detention in the immigration context despite campaign promises to do so. The issue is a large sticking point given that over 70% of individuals in immigration detention are detained at privately operated facilities. 

Background 

“The pause will allow DHS to ensure that its resources are dedicated to responding to the most pressing challenges that the United States faces, including immediate operational challenges at the southwest border in the midst of the most serious global public health crisis in a century,” the Department of Homeland Security said.

The memo does include some exceptions to who may be subject to deportation during the moratorium: 

1. Those who entered the United States on or after November 1, 2020;

2. Those who are engaged or suspected of engaging in terrorism or espionage, or U.S. Immigration and Customs Enforcement (ICE) believes you pose a danger to national security or

3. Those who choose to be deported.

The memo also creates exceptions for individuals who may still be targets for ICE enforcement and arrest. This includes:

1. Individuals who have arrived in the United States on or after November 1, 2020;

2. Individuals who have been released from a federal, state, or local prison or jail on or after January 20, 2021, have been convicted of an offense defined by federal immigration law as an “aggravated felony” and are determined to pose a threat to public safety; or

3. Individuals who are engaged or suspected of engaging in terrorism, espionage, or ICE believe you pose a danger to national security.

Federal Court Ruling and Future 

The deportation moratorium by Biden was halted before it could go into effect after U.S. District Judge Drew Tipton issued a ruling in favor of Texas, who asked for a temporary restraining order in their suit against the Biden administration. The judge said the Biden administration had failed “to provide any concrete, reasonable justification for a 100-day pause on deportations.”

The injunction was initially set to expire after 14 days but has since been extended through February 23, 2021. 

The ruling does not block the memo entirely but is limited to individuals with final removal orders, allowing ICE to proceed with their removals. The memo’s delineation of new enforcement priorities for ICE is still allowed to go into effect, and the agency can still exercise discretion with respect to enforcement and detention.

The ruling was slammed by immigration advocates, with National Immigrant Justice Center Executive Director Mary Meg McCarthy stating, “The Texas court’s decision is based on a faulty interpretation of the law and racist arguments akin to those which drove the very decisions in the previous administration that President Biden’s moratorium policy was intended to review. Already, we are seeing signs that the anti-immigrant sentiment which defined U.S. Immigration and Customs Enforcement during the past four years is still present.”

If you have questions or concerns about the 100-day moratorium and how it may apply to you or your family, please contact a qualified immigration attorney. 

Trump Administration Pushes Last Minute Changes to Immigration Policies

One of the hallmarks of the Trump presidency has been a concerted effort to dismantle and destroy the rules, regulations, and procedures surrounding the immigration and asylum process in this country. By some estimates, the Trump administration is responsible for more than 400 changes to immigration practice and policy. Now, as Trump’s term comes to an end, the administration is pushing through a number of significant changes to the immigration process that could have devastating consequences for the most vulnerable members of the migrant population.

The three major areas of change outlined below range from fee increases that can create barriers to accessing justice and relief to changes in what types of cases and claims are eligible for asylum and relief. Viewed in a cumulative manner, these changes could have a drastic impact on the future of immigration in our country.

While incoming President Joe Biden has promised to restore many protections for immigrants, his administration may face a lengthy process with respect to rule changes. According to Leon Fresco, an immigration attorney sitting on a U.S. Department of Homeland Security advisory board, restoring the damage may take time. “The majority of the Trump administration immigration reforms will be difficult to address immediately either because of legal rule-making barriers, practical realities on the ground or a lack of bandwidth given how many priorities the Biden administration has in contrast to the singular focus on immigration the Trump immigration had,” he told Politico in a November interview.

Here is a summary of recent rule changes and their potential impact on our immigration system.

1. Changes to Fees & Work Authorization 

One of the primary methods that the Trump administration has employed is attacking those seeking immigration benefits or humanitarian relief by placing additional burdens or barriers on them and their families. Recent rule changes with respect to application filing fees and work authorization appear to be a continuation of this strategy. 

Filing Fees in Immigration Court 

A significant set of changes is set to take place with respect to filing fees related to applications and forms in immigration court. As a result, immigrants in court will have to pay increased fees to appeal decisions, reopen a case based on new evidence, or have a decision reconsidered based on an error. Individuals may still be able to ask for fee waivers for certain fees; however, the changes serve as a significant barrier for individuals seeking to access immigration relief and will be particularly burdensome for individuals with limited resources. The changes include tripling the cost to apply for cancellation of removal, and fees for appeals to the Board of Immigration Appeals (BIA) - which reviews immigration court decisions -will be nearly nine times higher than previous levels. The rule also requires that asylum applicants pay a fee to seek that form of relief for the first time in this nation's history.

Immigrants’ rights organizations have already filed a lawsuit to oppose the fees, arguing that they serve as a kind of ‘wealth test’ for individuals seeking relief. 

The changes to fees are scheduled to take place on January 18th and will apply to certain applications, appeals, and motions submitted to immigration courts or the BIA. Find a complete list of forms and fees here. 

Work Authorization Rule

In addition to fee increases, the Trump administration is taking draconian measures to prevent immigrants who are on supervised release from immigration custody from working. The proposed rule would eliminate employment authorization eligibility for any immigrant who has a final order of removal in their record but has been temporarily released from detention. Historically, individuals who had been released under supervision would be allowed to work and often explore various avenues to re-open their cases or seek alternative relief. 

Advocates have noted that the rule change would harm individuals who are already vulnerable and often lack financial resources or support. An estimated 17,000 individuals may be impacted by the rule, leaving them unable to work or support their families. A large number of organizations and individuals have expressed concern over the rule, and more than a dozen state Attorney Generals have also provided comments opposing the rule change.  

ILD, along with the American Immigration Council (AIC) and the American Immigration Lawyers Association (AILA), expressed their concern over the rule change in a letter to USCIS, noting: “The proposed rule would have a profoundly cruel impact on individuals who would no longer be eligible for work authorization. They will lose the ability to support themselves and their family members, making it harder to pay for basics like food, shelter, and healthcare. Families – including U.S. citizen spouses and children – will have no other means to support themselves in homes where that individual is the primary wage earner.”

1. Changes to Immigration Court Procedures 

In addition to barriers imposed on immigration applications and processes, the Trump administration has sought to change the practice and procedure in immigration court, where many individuals facing deportation must appear in order to apply for relief. Some of the changes include how certain cases are treated when they are before the court.

The new rules remove procedural protections in what appears to be an attempt to speed up the processing of cases and appeals. The rule removes the ability of the Executive Office for Immigration Review (EOIR), more commonly known as the immigration court, to exercise certain forms of discretion on cases and prevents individuals from pursuing certain types of relief through the appeals process.

The rule, set to take effect on January 15, 2021, makes numerous changes to the process of appealing immigration court decisions, including reducing the time that the  (BIA) is allowed to grant in the form of an extension to individuals filing briefs to support their case, preventing immigration court and BIA judges from using administrative closure to close certain cases and manage their caseloads, and undermining the ability of volunteer or pro bono attorneys to take on representation.

The American Immigration Council, a non-profit that supports immigrants’ rights, submitted a comment vehemently opposing the rule change:

“Throughout the rule, the Department of Justice (Department) removes procedural protection after procedural protection, emphasizing a perceived need to speed appeals and prevent “gamesmanship.” However, procedural protections like adequate time to brief issues raised by opposing counsel, the ability for adjudicators to reopen cases in the interest of justice, and maintenance of impartiality are key to ensuring both sides have a fair chance to be heard. What the Department refers to as gamesmanship is instead merely a normal, fair appeals process – meant to allow judges to pull out the relevant issues and facts, hear arguments, and decide what justice demands. The Department should withdraw the proposed rule.”

Changes to the Immigration Court Practice Manual 

In addition to these rule changes, the Office of the Chief Immigration Judge (OCIJ) recently updated the Immigration Court Practice Manual, which sets guidelines and practice procedures for the court, with a number of key changes. The changes made to the manual on December 23, 2020, appear to mirror the spirit of other changes to immigration courts that appear to focus on expediting cases. This includes changing the filing deadline for non-detained individuals appearing for a full merits hearing before the court from 15 days to 30 days before the hearing date. This would effectively mean less time for preparation before individuals appear before the court for what will often be their final hearing before their case is decided.  

1. The Death to Asylum 

One of the most devastating blows to immigration law has been the comprehensive changes made by the Trump administration to asylum. Previously scheduled to go into effect January 11, 2021, in what many advocates have called the “death to asylum” rule, the changes create seemingly insurmountable barriers for refugees and asylees. The rule changes, pushed through in the final months of the Trump administration, would further exacerbate the humanitarian crisis related to those seeking asylum in the United States.

The rule was first proposed in the summer of 2020 and received more than 87,000 public comments. Despite widespread outcry over the proposed change, the rule itself went forward largely unchanged and was set to go into effect this month.

Immigration advocacy organizations filed legal challenges to block the rule. On January 8, 2021, the U.S. District Court for the Northern District of California prevented the rule from going into effect by ordering a nationwide injunction.

The plaintiffs in the case, which included numerous organizations that represent asylum seekers, centered their arguments against the rule on the fact that acting Homeland Security Secretary Chad Wolf was improperly acting in his current role and lacked authority to impose the sweeping rules. Similar legal challenges in other courts have held that Wolf was, in fact, not properly appointed to his position, and the court in this case agreed.

“The government has recycled exactly the same legal and factual claims made in the prior cases, as if they had not been soundly rejected in well-reasoned opinions by several courts,” wrote Judge James Donato in his legal decision. “This is a troubling litigation strategy. In effect, the government keeps crashing the same car into a gate, hoping it might break through someday.”

Read the full decision on the case here.

Proposed Rules

Advocates have argued these changes would severely restrict the ability of asylum seekers to obtain relief in the United States and would undermine international norms and protections related to asylum.

In a statement, Human Rights First slammed the changes and noted the impact they would have on vulnerable asylum seekers. “Provisions in the rule finalized today create draconian procedural barriers for asylum seekers and are likely to have a disproportionate impact on refugees who are unrepresented, detained, or do not speak English.”  Benjamin Johnson, the Executive Director of the American Immigration Lawyers Association (AILA), noted, “This new rule raises the bar for asylum screenings and eventual long-term relief so impossibly high that it effectively shutters the U.S. asylum system.”

In particular, advocates have noted that the rule can have devastating consequences for three groups: Central Americans fleeing persecution from gangs, individuals fleeing domestic violence, and those fleeing harm or persecution based on their sexual orientation or gender identity. 

This is because the rule changes who can be granted asylum based on their membership in a “particular social group”, essentially limiting those who can qualify for protection to those who are members of the four traditional categories of race, religion, nationality and political opinion. Excluded from this are individuals who may be part of a “particular social group” constituted by either their gender or sexual orientation, for example, women who are coerced into marriage or LGBT individuals who may have been harmed because of their sexual orientation.

The rule also would limit the ability of anyone associated with a criminal entity to receive asylum; this includes individuals who may have been coerced into joining violent groups or gangs for their own protection before fleeing to the United States to seek refuge.

The rule also changes the eligibility of those seeking asylum as a result of their political opinion, requiring that an individual’s political opinion be tied to “a discrete cause related to political control of a state.” Thus, individuals who may have advocated broadly for human rights or freedom of speech issues may not qualify – unless their political opinion was directly opposed to those who are in control of the government. 

Some of the additional notable changes to the law include:

• Giving asylum seekers only 15 days from their first court hearing to complete and file their asylum applications. This timeframe is particularly challenging for both individuals and their attorneys, as they often spend weeks gathering evidence and exploring difficult topics and memories as they prepare their asylum applications. It is particularly challenging for the preparation of a case when interpreters are involved.

• The automatic denial of asylum applications that have minor or trivial errors if the asylum seeker does not refile their application within 30 days.

• Diminishing the reliance on human rights reports and evidence that was not created by the U.S. government as evidence of particular circumstances or conditions in a country. In addition to this, immigration judges are now encouraged to submit their own evidence as the basis for making a particular ruling or decision. Taken together, this effectively gives the U.S. Government and immigration judges greater control in framing the perceived human rights conditions in a particular country.

• Placing a 180-day deadline for the completion of asylum cases and imposing a high threshold to qualify for any form of extension beyond this time limit. 

DACA is restored, but is the program safe?

On December 4, 2020, a federal court in New York ruled to fully reinstate the Deferred Action for Childhood Arrivals (DACA) program after years of legal battles and uncertainty for hundreds of thousands of DACA beneficiaries. The ruling is the latest chapter of a legal battle against the Trump administration, which has sought to terminate the program since 2017. Immigration advocates have fought not only to challenge the termination of the program but also to force the administration to allow new applications to be accepted once again. The court's ruling does just that and more, with USCIS posting a notice on December 7th that they are indeed accepting initial DACA applications and applications for travel on advance parole and reinstating DACA to a two-year program. 

Does this mean that the DACA program is safe? Well, that remains to be seen, as yet another court is considering a legal challenge with respect to the legality of the program. On Tuesday, December 22nd, a U.S. District Court in Texas heard a case brought by Texas Republican Attorney General Ken Paxton and eight other states seeking to end the program and claiming it is a drain on state resources and violates federal law.

The legal challenge in Texas is significant, not only as a threat to the program but as an important legal ruling on whether or not programs like DACA can exist moving forward. Advocates seeking to defend the program include the Mexican-American Legal Defense Fund (MALDEF). “This case is an attack on the underlying legality of DACA itself,” said Nina Perales, a lawyer for MALDEF when interviewed by CBS News. “This case seeks a ruling that DACA is unlawful that would bind any future administration.” 

That means a ruling by the Texas court could potentially impact any future version of the program by the Biden administration, which has repeatedly stated that Biden intends to restore and protect the program fully. 

A negative ruling by the Texas court could potentially put the DACA program back into limbo and could result in an appeal by advocates like MALDEF or the creation of a different replacement program by the Biden administration that could withstand legal challenges.

Andrew Hanen, the Judge presiding over the case, previously issued a ruling in 2015 invalidating the expansion of the DACA program and the implementation of the DAPA program to parents of U.S. citizens and lawful permanent resident children. However, Judge Hanen has also previously denied requests by Texas to temporarily block the DACA program while the lawsuit continued.

In addition to the legal challenges, the ultimate fate of DACA recipients, who still lack a true path to citizenship, is in the hands of Congress. The January 5th runoff election in Georgia is potentially set to determine control of the Senate and perhaps the long-term fate of DACA and its beneficiaries. Regardless of what the outcome of the pending case in Texas is, the ILD team will work closely with national advocates and with our clients to continue to demand long term immigration relief and options for all.. 

See a list of previous legal challenges brought against DACA in Federal Courts compiled by MALDEF here.

Rethinking Asylum under Biden and Beyond

The change in administration slated to take place in January 2021 will bring much-needed relief to beleaguered immigrants inside the United States, potentially ending policies designed to target communities of color and limit legal immigration to the United States. The incoming administration of Joe Biden has promised to end heinous policies such as family separation at the border, but serious questions remain as to how his administration will address deeper questions related to immigration, humanitarian relief, and policies at the southern border. Perhaps no bigger question looms, not only for the Biden administration but the majority of first-world countries, than the issue of asylum and refugee resettlement.

The number of people internally displaced by disasters, conflict, or violence reached an all-time high of 50.8 million at the end of 2019. This harsh reality has been coupled with estimates that global inequality is rising for more than 70% of the global population. These factors have ushered in a global order where people and families face harsh restrictions or even internment in their quest for asylum, safety, or a better life.

The dismal situation faced by migrants and asylum seekers is not unique to the southern border of the United States. Over the last decade, the Mediterranean has become a graveyard for migrants seeking to enter Europe, fleeing conflicts in the Middle East and Northern Africa, yet even the EU has seemingly failed to find lasting and humanitarian solutions to these challenges.

The challenges related to the migration of those seeking a better life are even more dire with the looming catastrophe of climate change, with an estimated 143 million people predicted to be displaced by 2050. As a result, simply restoring Obama-era asylum policies and practices will not be enough to deal with this global challenge. Instead, advocates and policymakers should radically reimagine the concepts of asylum, refugees, and international migration.

Rethinking Asylum

Much of modern asylum law is rooted in the 1951 Refugee Convention. Article 1 of the Convention, as amended by the 1967 Protocol, defines a refugee as:

“A person who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it…”

The foundation of modern asylum law requires the individual seeking protection to fall within a qualifying ground or category. The person must demonstrate that they have faced persecution on account of “race, religion, nationality, membership of a particular social group or political opinion” and establish a direct nexus between one of these grounds and the persecution they faced.

During World War II, this definition allowed for a clear path to classify persecuted groups as refugees, for example, the Jewish population, and move to immediately grant them relief. However, the complex challenges the modern world poses have complicated what was meant to be. The system has not sufficiently evolved to meet the modern-day realities persecuted individuals face.  Instead, the current framework serves to exclude specific types of migrants.

While there have been efforts over the last decade to expand the definition of who falls into a “particular social group”, for example to specifically include  LGBTQI individuals or those who have experienced gender violence, these efforts have often been met with legal and political pushback. In fact, the Trump administration and other world governments have actually used this definition to limit relief for those fleeing violence and poverty.

So, who is left out under this classical definition? The groups that Trump and others argue are excluded include:

• Individuals fleeing natural disasters

• Individuals displaced by climate change

• Individuals fleeing armed conflicts, civil wars, or gang warfare

• Individuals fleeing poverty

• Individuals fleeing the spread of a contagious disease or public health disaster.

The exclusion of such broad categories of individuals from obtaining refugee or asylee status appears woefully inadequate for the challenges that lie ahead, both in the United States and globally. So, what are some ways of rethinking this approach?

Redefining Relief 

There are alternative approaches to the issue of asylum and several inspiring models to consider. Starting with the definition of a refugee, the Organization of African Unity (OAU) adopted a unique approach in the Convention Governing the Specific Aspects of Refugee Problems in Africa in 1969.

The convention defined refugees as: “Any person compelled to leave his/her country owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality.”

This simple yet broad definition does not provide complex legal loopholes that qualify certain forms of persecution or suffering while dismissing others and allows for humanitarian relief to be granted to individuals fleeing a host of issues that may arise in a given country. This approach may prove critical in providing relief for individuals fleeing climate change, civil unrest, a foreign invasion, or other catastrophic events.

Other models can be found in the present and in history. The challenge posed by migration is rooted in issues of equity, cooperation, and justice. Under the current form of globalization, borders have been effectively abolished for capital and corporations, allowing them to effectively move money and products throughout the globe with ease, yet individuals and families remain caught in red tape or locked away in internment camps awaiting processing. Just as common markets have allowed for free travel between various countries, similar rules and regulations could be developed in order to deal with humanitarian challenges.

Border abolition is now being debated as a radical tool to solve these pressing challenges. It is important to remember that borders and travel restrictions are relatively new in both practice and application. For most of human history, migration was a natural way of life. Just as the United States was built on an influx of refugees and migrants, policies that allow for freedom of movement can, in many ways, solve global inequalities and allow countries to thrive in the long run.

Lastly, we cannot address the challenge of global migration without a discussion about global inequality and how developed countries can invest in and alleviate poverty throughout the global south, particularly in countries that have a colonial legacy and have been exploited for their material and social wealth. This should also include serious attempts to ensure that multinational corporations pay their fair share of taxes and are part of a solution to build a more equitable world.

The challenges we face as a civilized society should not be limited to the term of one presidential candidate but should be seen as collective problems all humanity faces. In order to meet these challenges, we must be ready to scrutinize all of our assumptions about the current state of affairs and be ready to radically reimagine what a just and fair future society looks like.