Texas Court Halts Biden Administration's New ICE Enforcement Priorities

A court in Texas has issued a devastating decision to the Biden administration's plan to limit immigration enforcement and slow down deportations. The ruling, issued by Judge Drew Tipton of the U.S. District Court for the Southern District of Texas, blocks the Biden administration from limiting U.S. Immigration and Customs Enforcement's (ICE) arrests to specific categories in an effort to shift the agency's enforcement priorities. Specifically, the court issued a nationwide preliminary injunction halting the enforcement of two memos issued by the Biden administration that aimed to limit the scope of ICE’s enforcement priorities and reduce arrests. 

Shortly after taking office, DHS and ICE officials issued two memos to field staff. The memos ordered agency staff to prioritize the arrest of individuals deemed national security threats, those who constitute a border security threat, or those convicted of offenses considered aggravated felonies or who have been convicted of an offense involving active gang membership who pose a risk to public safety. In addition, the memos created stricter oversight standards for agents wanting to arrest individuals who fall outside these priorities. 

The ruling by the Trump-appointed judge placed a nationwide preliminary injunction on the two memos. Judge Tipton had previously issued rulings preventing the Biden administration from enforcing a 100-day deportation moratorium. 

The legal challenge was filed in April by Texas Attorney General Ken Paxton and Louisiana Attorney General Jeff Landry in the U.S. District Court in the Southern District of Texas, located in the conservative 5th Circuit.

In the ruling, Tipton stated that Texas and Louisiana had shown "substantial likelihood that the policy concerning the detention of certain aliens set forth in the Memoranda is arbitrary and capricious under the Administrative Procedure Act and the Memoranda fail to comply with the APA's notice and comment requirement."

The decision is the latest in a series of court battles between presidential administrations and states with opposing viewpoints on immigration, affecting both Democratic and Republican administrations alike. This includes laws passed by California to limit the enforcement of the Trump administration’s inhumane border policies, as well as legal challenges brought by the state of Texas to end Obama-era programs like DACA. 

The ruling now casts uncertainty over the direction of immigration enforcement under Biden. The administration recently nominated Sheriff Ed Gonzalez, previously critical of the Trump administration's immigration policies, as Harris County sheriff in Texas to head up ICE. While this move may indicate the Biden Administration’s desire to reform ICE, advocates remain concerned that Gonzalez may not be able to deliver change to an agency riddled with challenges given the spread of COVID-19 in detention facilities and increased apprehensions at the border. 

Judge Tipton also ordered the Biden administration to file additional documents by September 3rd, providing the court with "specificity what guidance, protocols, or standards control the detention of these aliens in light of the fact that the Memoranda have been enjoined." In addition, Tipton ordered the administration to provide the court with monthly data reports on immigrants who were not detained.

The Biden administration has since appealed the ruling, but whether it will issue new priorities to DHS remains to be seen.

The ruling was slammed by advocates, with Jeremy McKinney, the president-elect of the American Immigration Lawyers Association (AILA), telling reporters, “This Texas judge is single-handedly forcing the federal government to re-examine how it will enforce immigration law.”

McKinney went on to demand that advocates pressure the agency and the administration to exercise discretion in how DHS operates. “Even after (Thursday’s) decision, immigration attorneys and advocates should press the agency to exercise discretion in appropriate cases and implement robust policies on prosecutorial discretion. Enforcement must be done fairly and humanely and every advocate must continue to fight for their clients whether they are deprived of their liberty in a jail cell or free.”

The Crisis in Afghanistan and Options for Immigration Relief

Demonstrators in London Rally to Call or Action on Afghanistan

The humanitarian situation in Afghanistan has raised calls from advocates and human rights organizations for immediate action to help those fleeing the country as refugees. The sudden collapse of the Afghan government and the return of the Taliban has sparked debate over what, if anything, should be done to deal with a looming humanitarian crisis. Most of the solutions being discussed in the United States are, in one way or another, related to immigration and the resettlement of vulnerable populations. 

While there is some bipartisan agreement in the United States that some policy or process should be put in place to support Afghans who cooperated with U.S. forces in the country, it remains to be seen exactly how many of these individuals will be afforded protection.

The debate over what types of lawful status should be afforded to vulnerable Afghans provides an important case study of what happens when political considerations and calculations meet an urgent humanitarian crisis and why refugee challenges are so often difficult to resolve. In this blog, we examine the various immigration options being discussed with respect to the situation in Afghanistan. 

The challenge on the ground and potential solutions 

Since the Taliban entered the capital city of Kabul on August 15, the airport has now become one of the only routes out of the country. The situation in the airport has been chaotic and disorganized, as thousands of Afghans have gone to the airport seeking a way out. The panic has led to at least seven deaths at the airport, as the crowded situation has reportedly resulted in individuals being crushed, trampled, or injured. 

Thousands of Western troops have tried to control large crowds from entering the airport. A NATO official told reporters, "The situation at Kabul airport remains extremely challenging and unpredictable."

The Biden administration has vowed to prioritize the evacuation of all American citizens from Afghanistan, with some estimates stating that tens of thousands of Americans are still hoping to be flown out. Despite this commitment, questions still remain about what relief can be provided to Afghans who are not citizens of the United States and are seeking protection from the Taliban.

This includes potentially hundreds of thousands of Afghans who have in some manner assisted the American military during the twenty years of military occupation in the country, as well as ethnic and religious minorities fearing persecution, and finally, ordinary citizens wishing to escape Taliban rule. 

Almost all of these individuals fit the classic definition of refugees, seeking to escape persecution based on a protected ground. The question now faced by the United States and much of the world is how to resettle this population in such a short period of time. 

A coalition of over 100 Muslim and immigrant rights organizations recently wrote a letter calling on President Biden to broaden visa eligibility and increase support for Afghans seeking refuge in the United States. The letter called for U.S. authorities to broaden the categories of Afghans who are eligible to apply for resettlement or special visas to the United States, as well as the use of humanitarian parole to expedite relocation. 

The letter stated: “We echo the calls of Afghan American communities and organizations that are urging President Biden to:

• broaden eligibility for Priority 1 and Priority 2 referrals to the U.S. Refugee Admissions Program;

• broaden eligibility for the Afghan Special Immigrant Visa program and increase processing capacity across all relevant agencies;

• create a special humanitarian parole program to meet the urgent needs precipitating from the current crisis, and

• increase the annual refugee allocation immediately.”

Debate Limits Action

The demands put forth by advocates have been met with opposition by some in Washington. Many Democrats, including a group of 46 Senators (43 Democrats and 3 Republicans), are calling for the administration to use a procedure known as “humanitarian parole” to get as many Afghans into the country as possible. The letter to the administration asks that human rights activists, women leaders, and other public figures be allowed to relocate to the United States quickly. 

The benefits of the humanitarian parole process include the ability to enter the United States immediately, without the need to apply for a visa or go through the typical background checks and procedures that the immigration process entails. Individuals who are paroled into the country can subsequently apply for various forms of immigration relief, including asylum.

In addition to the push for humanitarian parole, other Congressional members are calling for other forms of relief.  Rep. Pramila Jayapal, D-Wash, the leader of the House Progressive Caucus, called for an increase in specific forms of visas and temporary status for Afghans in the United States. 

"The United States must ensure refugee processing moves forward without bureaucratic delay and with special allowances recognizing the difficulty for people to leave Afghanistan," Jayapal said in a statement Tuesday. " In addition to the State Department's work to expedite Special Immigrant Visas, we must also expand these visas and grant Temporary Protected Status to Afghans residing in the United States."

In response to the calls for action, NBC News reported that the President wrote a memo granting the Secretary of State Antony Blinken an additional $500 million for "unexpected urgent refugee and migration needs of refugees, victims of conflict, and other persons at risk as a result of the situation in Afghanistan, including applicants for Special Immigrant Visas."

According to Reuters, “the Pentagon is aiming to evacuate up to 22,000 Special Immigrant Visa applicants, their families, and other at-risk people.” Other potential proposals include resettling Afghans in third countries, either permanently or to provide temporary safe haven for those fleeing persecution. 

As it stands, the United States appears to have until August 31st to evacuate up to 100,000 individuals from Afghanistan or risk a confrontation with the Taliban over extending the deadline. 

While many options are being discussed in Washington, it appears the Biden administration has been hesitant to take broad-based action on the resettlement of Afghans over fears of what “Fox News might say.”

While the administration continues to face pressure from lawmakers on potential solutions, local activists in places like the Bay Area have continued to raise their voices demanding action. Immigration attorney Spojmie Nasiri spoke to the San Francisco Chronicle during Oakland’s Lake Merritt demonstration.

“I personally have about 50 clients – including U.S. citizens, green card holders, and those with pending applications – who were tear-gassed.... Some families six days straight were waiting at the airport to get through,” she said. “Today’s the seventh day, and I finally heard they were able to get into the airport compound. I don’t know where they’re going to end up.”

Advocates Await Decision on Private ICE Facilities in California

Immigration advocates are awaiting a critical decision from the United States Court of Appeals for the Ninth Circuit (9th Circuit) regarding AB 32, a California law passed in 2019 that banned the use of private prisons and private civil detention facilities used by Immigration and Customs Enforcement (ICE). The law, the first of its kind in the nation, is being challenged by the private prison corporation, the GEO Group, Inc., and the federal government. 

In the fall of 2020, a district court in San Diego upheld AB 32, finding that California had the right to regulate the conditions of confinement for anyone detained within its borders, including those in federal immigration custody. The case was appealed to the 9th Circuit, with oral argument taking place on June 7th.

Now, advocates are anxiously awaiting a decision from the court regarding the fate of AB 32, which has broad implications for California and the nation.

Speaking to KQED, the bill’s author, Rob Bonta, now the California Attorney General, noted that the law could potentially influence other states. “This is a case with a lot of national significance,” Bonta said. “It was always the hope that others would replicate what California has done and also ban for-profit private prisons and detention centers, which are inhumane, unjust, unsafe, unfair, and which allow for literally Wall Street-owned corporations to profiteer on the backs of people.”

The bill is part of a lengthy battle between California and private prison companies who for years have played a cat-and-mouse game, with the state passing multiple bills to limit detention, while opponents claim that private prison companies have circumvented California law and exercised undue influence on local politics. 

Following the passage of AB 32, ICE and private prison companies in California signed unprecedented 15-year contracts just days before the bill was set to go into effect. The procurement of these contracts became the subject of a congressional letter probing whether the contracts were the product of collusion between the federal agency and private prison companies. 

Nearly all immigrants in detention in California are held in facilities owned and operated by three private detention companies: the GEO Group, CoreCivic, and Management & Training Corporation. If the courts uphold AB 32, these facilities may be forced to shut down, though the exact date of these closures is still at issue. 

Advocates believe that the bill could present a roadmap for other states to ban the use of private detention, a form of detention that many believe is problematic in theory and practice, driving policies of mass incarceration and harming those who are detained. More than 70% of immigrants nationwide are held in private detention facilities, and supporters of the bill believe it set off a series of copycat legislation. Washington, New Jersey, and Maryland have all passed legislation similar to AB 32. 

While AB 32 focuses on what states can do to push back on ICE detention, the Biden administration has come under fire over campaign promises to end the use of private immigration detention. Many in the immigrants’ rights community are particularly frustrated that the Biden administration’s Department of Justice chose to argue against AB 32, inheriting the case from the Trump administration and deciding to continue to oppose the law in court. 

In an interview with the LA Times, Hamid Yazdan Panah with Immigrant Defense Advocates (IDA) expressed dismay over the administration's decision to pursue the lawsuit and failure to take action against private prison companies. “The Biden administration’s callous disregard for the issue of immigration detention is embodied by their decision to side with private prison companies in the AB 32 litigation and defend profits over human lives. When confronted by activists on the issue of detention, Biden said, ‘Give me five days,’ which he later said was a joke. No one is laughing.”

IDA filed an amicus brief in the AB 32 hearing, along with Immigrant Legal Defense (ILD), the California Collaborative for Immigrant Justice (CCIJ), and the Center for Gender and Refugee Studies (CGRS). You can read the amicus brief here. 

Supreme Court Bars Green Cards within the U.S. for TPS Holders Who Entered Without Inspection

On June 7th, the U.S. Supreme Court issued a unanimous decision that bars immigrants with Temporary Protected Status (TPS) from obtaining a green card within the United States if their initial entry into the country was not authorized. In other words, immigrants who did not go through inspection before entering the United States are not eligible to receive a green card in the United States, even if they were granted TPS while residing in the country. 

"The question here is whether the conferral of TPS enables him to obtain LPR [Legal Permanent Residency] status despite his unlawful entry. We hold that it does not," Supreme Court Justice Elena Kagan wrote in the ruling for the case. The case, Sanchez v. Mayorkas, was brought by Jose Santos Sanchez, a Salvadoran immigrant who brought suit after being denied the ability to adjust his status to that of a lawful permanent resident. 

The ruling would not prevent individuals who entered the U.S. with a visa and overstayed from adjusting their status but would prevent those who entered without inspection at the border from being eligible for a green card within the United States. 

The case has the potential to impact tens of thousands of TPS holders, preventing them from applying for adjustment of status and obtaining a green card while they reside in the United States. According to the Congressional Research Service, an estimated 320,000 immigrants with TPS are in the United States. This includes immigrants from Burma, Haiti, El Salvador, Nepal, Honduras, Somalia, Syria, Sudan, South Sudan, Nicaragua, Yemen, and Venezuela. Immigrants from these twelve countries are currently able to apply for TPS, allowing them to reside in the United States. 

The ruling is a significant blow to immigrants who have resided in the U.S. – in many cases for decades – and are part of mixed-status families. The court's ruling, focused on the technical requirement of being “lawfully admitted” as a prerequisite to being able to adjust status, ignores humanitarian and practical considerations for individuals who cannot safely return to their homeland. 

In an interview with the Associated Press, Lisa Koop, a lawyer with the National Immigrant Justice Center, underscored the dire circumstances faced by those with TPS. “All of these families that are established in the United States and have lived in our communities for decades faced a very real threat.”

Ultimately, the ruling leaves tens of thousands with TPS in limbo, having been denied a permanent status yet unable to return to their home countries. As a result, it may be up to Congress to legislate a pathway for TPS holders to obtain permanent residency. A bill to address this issue, the American Dream and Promise Act, has been passed by the U.S. House of Representatives but faces an uncertain future in the U.S. Senate. 

Erika Andiola, the San Antonio-based non-profit Refugee and Immigrant Center for Education and Legal Services chief advocacy officer, or RAICES, called the ruling disappointing in an interview with the Texas Tribune.

“What makes the ruling even more egregious is that the vote was unanimous,” she said in a statement. “TPS holders came to the U.S. because of unsafe conditions in their native countries, and this ruling prevents them from making a true home here. We call on Congress and the Biden administration to keep their promise and create a pathway toward citizenship for all TPS holders.”

This decision may still allow TPS holders to obtain a green card by leaving the United States, in a process referred to as consular processing. However, each case must be analyzed to determine what each individual qualifies for.  In order to understand exactly what legal options you may have in this case, it is important to consult with an attorney or qualified immigration expert. 

House Passes Legislation for DREAMERS and Farm Workers, but Bills Face Uncertain Future in Senate

On March 18, 2021, the U.S. House of Representatives voted to pass key immigration bills that are set to create a pathway for citizenship for millions of immigrants in the United States. The two bills, the American Dream and Promise Act and the Farm Workforce Modernization Act offer an avenue to legalization for Deferred Action for Childhood Arrivals (DACA) recipients, farmworkers, and those with Temporary Protected Status (TPS). 

The American Dream and Promise Act passed the House with a vote of 228-197, including nine Republicans voting in favor of the bill. The bill offers a potential path to citizenship for an estimated 2.5 million DACA recipients, as well as those with TPS. 

Here is a list of requirements and benefits for DACA recipients:

• The bill would create a “conditional permanent resident” status for DACA beneficiaries, providing them status for up to 10 years and allowing them to work and live in the United States and travel abroad. 

• To qualify for “conditional permanent resident” status, recipients would need to show that they are not inadmissible to the United States based on certain grounds, including criminal convictions, national security concerns, and other immigration bars. They must also demonstrate that they have earned a high school diploma or equivalent and pass a background check. 

Here is a list of requirements and benefits for TPS recipients:

• TPS holders can obtain a green card if they establish that they have lived continuously in the U.S. for at least three years before the bill is enacted.

• Prove that they were eligible or had obtained TPS on September 17, 2017.

• Submit an application within three years of the bill's passing and meet the general admissibility requirements for obtaining a green card.

• Pay a fee. 

• The bill would protect TPS recipients or TPS-eligible individuals from El Salvador, Haiti, Honduras, Nepal, Nicaragua, Somalia, South Sudan, Syria, and Yemen, as well as individuals with Deferred Enforced Departure (DED) from Liberia. Unfortunately, the bill would not benefit individuals from Venezuela or Burma who received TPS grants in 2021. 

For a detailed list of requirements for all beneficiaries of the Dream and Promise Act check here.

“The American Dream and Promise Act of 2021 is a critical first step in reforming our immigration system and will provide much-needed relief to TPS holders and Dreamers, young people who came here as children and know no other country," said President Joe Biden in a statement after the bill was passed.

The Farm Workforce Modernization Act passed with a vote of 247-174, with thirty Republicans voting in favor of the bill. The bill includes an “earned legalization program,” which would allow individuals to apply for “Certified Agricultural Worker” (CAW) status. CAW status would provide individuals with temporary residency during the 18-month application period. 

Here is a list of the requirements and benefits for CAW status:

• Provide proof of employment in the U.S. agricultural industry for at least 180 work days over the previous two years.

• CAW status can be renewed indefinitely as long as the individual continues to do agricultural work for at least 100 days a year.

• Applicants must undergo background and security checks.

• Individuals who qualify for CAW can also obtain status for their spouses and minor children.

• Long-term workers can earn a path to permanent residency by paying a $1,000 fine and completing a specific term of agricultural work. This term would include four additional years of work for individuals with ten years of prior work or eight years of additional work for individuals with less than ten years of prior work.

For a detailed list of Farm Workforce Modernization Act requirements, check here. 

California lawmaker Rep. Zoe Lofgren, who sponsored the bill, thanked farmworkers for assisting the country through the COVID-19 Pandemic, "thanks to the farmers of America, but also the farmworkers of America, most of whom are undocumented and most of whom have been here more than 10 years. They live in a period of uncertainty, and we decided we should do something about it."

Both bills stand as important steps towards immigration reform and are seen by some as an attempt to make progress for specific populations of immigrants, while comprehensive immigration reform remains pending. 

However, there are those who would argue that the administration's focus on “Dreamers” and farmworkers indicates their goal of providing status to certain segments of the immigrant community that are deemed safe while eschewing policy changes that benefit individuals with criminal convictions or more complicated backgrounds. Advocates have also lamented the Biden administration’s lack of action to curtail immigrant detention or significantly scale back the operation of agencies like the U.S. Department of Homeland Security’s Immigrant and Customs Enforcement. 

The bills will now head to the Senate, where they are likely to face serious opposition from Republicans. The bills would require 10 Republican votes in order to pass, meaning that some form of compromise or alteration to the bill may be required. To further complicate matters, Republicans have seized on recent events at the U.S.-Mexico border as a negotiating point, with Sen. Lindsey Graham, a leader on immigration policy in the Senate, conditioning any legislative deals on stopping migration at the border. “It’s going to be really hard to get a bipartisan bill put together on anything that has a legalization component until you stop the flow.”

While the American Dream and Promise Act and the Farm Workforce Modernization Act present potential pathways to status for vulnerable immigrants, it remains to be seen if and when the bills become law.