On March 9, 2021, the Biden Administration put an end to the 2019 public charge rule implemented by the Trump Administration. The Biden Administration took the final step in ending the controversial rule that was part of Donald Trump’s efforts to restrict legal immigration. The 2019 public charge rule made it increasingly difficult for immigrants to obtain lawful permanent resident status if the government determined they had relied on or would be at risk of relying on public benefits.
The Department of Justice (DOJ) dismissed pending appeals relating to the public charge rule at the U.S. Supreme Court and the U.S. Court of Appeals for the Seventh Circuit. Department of Homeland Security (DHS) Secretary Alejandro Mayorkas announced that the Biden Administration would no longer defend the 2019 public charge, stating, “The 2019 public charge rule was not in keeping with our nation’s values. It penalized those who access health benefits and other government services available to them.”
This new development is a big victory for immigrants and their advocates. The term “public charge” was first included in U.S. law in the early 1880s, but the Trump Administration “expanded the definition of the term, which effectively means being deemed an economic burden on the country, by broadening the types and amount of government aid that would count against immigrants seeking to become lawful permanent residents.”
Immigrant advocates were critical of the Trump-Era rule, which targeted lower-income immigrants and their families and was deemed a “wealth-test.” According to an Urban Institute report conducted this year, “Over 13% of adults in immigrant households reported foregoing government aid in 2020 because of fear it would jeopardize their immigration cases.”
Overall, in taking this step to end the Trump-era rule, the Biden Administration continues to fulfill its promise to undo the damage that the Trump Administration wrought on the immigration system over the last four years. This change will undoubtedly allow more immigrants to be eligible for lawful permanent resident status in the United States moving forward.
On February 24, 2021, President Joe Biden rescinded the Immigrant Visa Ban implemented by the Trump Administration on April 22, 2020 due to the COVID-19 pandemic. A copy of the new proclamation can be found here. The original proclamation signed by former President Donald Trump was initially set to expire after 60 days but was ultimately extended through March 31, 2021, prior to President Biden’s recession.
Former President Donald Trump signed the original proclamation, arguing that immigrants were a risk to the U.S. labor market amid the COVID-19 pandemic. President Biden, however, believes “that shutting the door on legal immigrants ‘does not advance the interests of the United States.’” The original proclamation prevented hundreds of thousands of immigrants from reuniting with their United States citizen and lawful permanent resident family members in the United States.
According to the Associated Press, “as many as 120,000 family-based preference visas were lost largely because of the pandemic-related freeze in the 2020 budget year.” The main exception to the proclamation included spouses and children (under the age of 21) of United States citizens. The proclamation also prohibited the entry of diversity visa recipients as well as most employment-based visas.
Immigration lawyers and advocates applauded this current move by the Biden Administration, which follows the recession of the Muslim Ban earlier this year. However, the Biden Administration has yet to address the current ban on non-immigrant visas.
Since the start of his campaign, President Biden has outlined an ambitious immigration agenda, which would hopefully reverse the damage wrought by the Trump Administration. While President Biden has signed many executive orders relating to immigration, there is still a long way to go. The long-term solution to reform the current immigration system will require legislation. Immigrant advocates remain hopeful that the Biden Administration will be able to bring about much needed change within immigration law over the next four years.
On February 11, 2021, the Biden Administration announced the beginning of their plan to allow tens of thousands of asylum-seekers currently in Mexico to enter the United States. Approximately 25,000 asylum-seekers have been waiting for their immigration hearings in Mexico due to the Migrant Protection Protocols (MPP) program, established by the Trump administration. Also known as the “Remain in Mexico” policy, the MPP was introduced in January of 2019, forcing asylum-seekers arriving at the southern border to live in dangerous border cities while their asylum claims were pending.
The first of tens of thousands of asylum-seekers will be allowed entry into the United States beginning February 19, 2021. The Department of Homeland Security (DHS) hopes to process 300 individuals at two separate border crossings each per day. The Biden Administration has not named the locations of these border crossings in order to avoid immigrants rushing to these locations.
Biden’s new plan aims to undo the Trump policy that saw almost 70,000 asylum-seekers enrolled in the MPP program. This program was designed to deter asylum-seekers to the United States, one of the Trump Administration’s main focuses. According to the Associated Press, “the policy also exposed people to violence in Mexican border cities and made it extremely difficult for them to find lawyers and communicate with courts about their cases.”
Due to the COVID-19 pandemic, hearings for asylum-seekers remaining in Mexico have been suspended since June of 2020. Asylum-seekers will be tested for COVID-19 before entering the United States. Unfortunately, this new plan does not include relief for asylum-seekers whose cases were already dismissed or denied. Immigration advocates are urging the Biden Administration to address this issue as many cases were denied due to communication problems that caused them to miss their hearings.
Overall, this announcement by the Biden Administration is a positive step that will ensure due process for more asylum-seekers and the ability to have their cases properly heard. Since his inauguration, President Biden has continued to fulfill his promise to begin reforming the immigration system and undoing the damage done by the Trump Administration over the last four years.
On February 2, 2021, President Joe Biden signed several executive orders aimed at reversing harsh immigration policies implemented by the Trump Administration. One order establishes the Family Reunification Task Force, which will attempt to reunite parents and children that were separated at the border under Trump’s zero-tolerance policy. A second order establishes a plan to examine migration to the United States as well as the asylum process. The third order directs several U.S. departments to review numerous immigration policies developed by the Trump Administration including the public charge rule, health insurance proclamation, and increase in immigration filing fees.
All three executive orders described above are aimed at improving the U.S. immigration system, which was heavily targeted by the Trump Administration. The first order, which calls for the development of a Family Reunification Task Force, will allow the Biden Administration the opportunity to reunite approximately 600 children with their parents after having been separated at the border. President Biden has called these separations a “moral failing.”
The second order signed by President Biden, calling for evaluation of the immigration system, will review the Central American Minors program, which began under President Obama. The Trump Administration terminated this program in 2017, which allowed children from certain regions to reunite with their families in the United States. The order also calls for review of Trump’s “Remain in Mexico” policy. This policy has left tens of thousands of asylum seekers from Central America stranded in Northern Mexico while they wait for immigration hearings.
President Biden’s third order directs several U.S. departments to review guidelines implemented under the Trump Administration “to determine whether they are in line with the government’s desire to promote ‘integration and inclusion.’” This will include review of the public charge rule, which allowed for denial of visas and lawful permanent residence for applicants that were determined likely to be dependent on government benefits.
Overall, the recent executive orders signed by President Biden are a welcome change from the devastating immigration policies set by the Trump Administration. Although change may take time, immigrants and advocates are hopeful for positive reform in the future.
Last week, our office published a blog post regarding the Biden Administration’s 100-day pause on deportations issued on January 20, 2021. The complete post can be found here. Unfortunately, on January 26, 2021, the U.S. District Court for the Southern District of Texas issued a 14-day temporary restraining order on the deportation pause.
The restraining order was sought by Texas Attorney General, Ken Paxton, who following the court decision, stated, “I commend the Court for prioritizing the law and safety of our citizens, and I will continue to defend Texas against the unlawful and unconstitutional actions of President Biden and his Administration.”
The order issued by the District Court will remain in effect while a broader preliminary injunction is considered. Federal Judge Drew B. Tipton, a Trump appointee, ruled that the suspension of deportation would “violate a provision of the immigration statute as well as another law that required agencies to provide a rational explanation for their policy decisions.” A decision regarding whether to grant the restraining order is expected in the coming weeks.
In addition to the pause on deportations, President Biden rescinded the “Muslim Ban,” implemented by the Trump Administration. The ban was issued on January 27, 2017, barring citizens from seven predominantly Muslim countries from entering the United States. President Biden’s proclamation to end this ban will allow for the reunification of thousands of families that have been separated for several years.
Apart from the rescission of the Muslim Ban during his first day in office, President Biden issued another proclamation, pausing construction of the U.S.-Mexico Border wall and ordered a review of its funding. According to the Washington Post, the Biden Administration can save 2.6 billion dollars by halting construction on the wall.
Overall, more executive orders from the Biden Administration are anticipated in the coming weeks. Immigrants as well as their advocates are hopeful that the new administration will bring about positive reform throughout the country.
On January 20, 2021, Joseph R. Biden was sworn in as the 46th President of the United States. Since his inauguration, President Biden has already issued new policies that will affect immigrants throughout the country. Several hours following President Biden’s inauguration, the Department of Homeland Security (DHS) issued a memorandum to halt deportations for 100 days, beginning this week.
The newly issued memo aims to halt the majority of deportations due to “significant operational challenges at the southwest border as it is confronting the most serious global public health crisis in a century.” The overall goal of this policy is to ensure safe and legal processing at the border, restore fair asylum procedures, as well as prioritize the administration’s response to national security and public safety threats.
Not all deportations, however, will be halted. Deportations may continue for immigrants “who engage in or are suspected of terrorism or espionage, were not physically present in the U.S. by Nov. 1, 2020, or have voluntarily waived any rights to remain in the U.S. provided they were made fully aware of the consequences of the waiver.”
In addition, the 100-day deportation pause does not apply to immigrants apprehended at the border. Since March of 2020, most immigrants who have been caught trying to enter the U.S. unlawfully by U.S. Customs and Border Patrol (CBP) have been expelled without the ability to seek immigration relief. This was due to the Trump’s Administration reliance on the Center of Disease Control and Prevention’s Title 42 Order, suspending the entry of certain immigrants due to the COVID-19 pandemic.
Overall, the introduction of this deportation pause by President Biden marks a swift change from the Trump’s Administration hardline stance on immigration. Hopefully, President Biden will continue to fulfill his campaign promise to reform the immigration system and to ensure the safety and rights of immigrants throughout the country.
On January 8, 2021, the United States Supreme Court granted certiorari in Sanchez v. Wolf, a case that addresses whether a grant of Temporary Protected Status (TPS) authorizes eligible non-citizens to apply for lawful permanent residence. A copy of the Petition for Writ of Certiorari can be found here.
Currently, there is a split among the U.S. Circuit Courts regarding this issue. The Sixth and Ninth Circuit have held that a grant of TPS counts as an admission for adjustment of status eligibility. The Eleventh Circuit, however, has held that TPS does not constitute an admission. Sanchez v. Wolf stems from the Third Circuit, which joined the Eleventh Circuit in holding that TPS does not constitute an admission for adjustment of status purposes.
Temporary Protected Status (TPS) is a temporary form of immigration status granted to nationals of certain countries that have been deemed unsafe for return due to armed conflict, environmental disaster, or other extraordinary conditions. United States Citizenship and Immigration Services (USCIS) can grant TPS to eligible nationals already in the United States, which allows them to remain in the country as well as obtain work and travel authorization.
Sanchez v. Wolf raises the question of whether a TPS recipient can apply for adjustment of status. To be eligible for adjustment of status, the applicant must show that they were inspected and admitted or paroled into the United States under Section 245 of the Immigration and Nationality Act (INA). The petitioners in this case argue that an immigrant who has not been admitted and inspected or paroled into the United States should nonetheless be eligible to adjust status if they have been granted TPS.
This U.S. Supreme Court decision will have great consequences for TPS recipients. If the Supreme Court sides with the Eleventh and Third Circuit, TPS recipients who entered the United States unlawfully would not be eligible to apply for lawful permanent residence. Many TPS recipients have been residing in the U.S. for decades, and an unfavorable decision could force them back to their home countries. The case is currently pending, and oral arguments will be heard by the Supreme Court in the coming months.
Since the start of the COVID-19 pandemic, United States Citizenship and Immigration Services (USCIS) has experienced long delays in scheduling biometrics appointments at Application Support Centers (ASC) around the country. USCIS temporarily suspended in-person services between March and June of 2020 to ensure the safety of employees and applicants amid the spread of COVID-19.
As a result of the pandemic, USCIS cancelled roughly 280,000 biometrics appointments. In July of 2020, USCIS offices began reopening with limited capacity after taking safety precautions including installing protective screens and ensuring compliance with social distancing guidelines. From July to September of 2020, Application Support Centers were operating at or below 50% capacity. By October 2020, operating capacity increased to 65% of pre-COVID levels.
To avoid further delays in the capture of biometrics, USCIS has began reusing previously captured biometrics when possible to conduct background checks on applicants. As of December 29, 2020, USCIS has not rescheduled all previously cancelled biometrics appointments. USCIS is currently scheduling approximately 10,400 appointments per day, while over 1 million applicants are still waiting for biometrics appointments.
USCIS is currently scheduling biometrics appointments based on the type of benefit being sought and generally on a first-in, first-out basis. Wait times vary among USCIS offices around the country. USCIS is also no longer processing walk-in appointments for biometrics collection. How the spread of COVID-19 unfolds in the coming months will determine if USCIS delays will continue or whether Application Support Centers can increase their operating capacity throughout the country.
Throughout his campaign and following his victory in the presidential election, Joe Biden has promised immigration reform. Over the last month, our office has published several posts regarding the President-elect’s promise for change within immigration. This week, President-elect Biden stated that although he hopes to reverse the damage caused by the Trump Administration, he is aiming for a slow approach in order to avoid a rush of “2 million people on our border.”
President-elect Joe Biden has previously stated that he plans to eliminate the “Remain in Mexico” policy set by the Trump Administration, which requires Central American migrants to remain in Mexico while their asylum claims are processed. However, during a press conference in Wilmington, Delaware this week, Biden stated, “The last thing we need is to say we’re going to stop immediately the, you know, the access to asylum the way it’s being run now and end up with 2 million people on our border.”
In regards to fulfilling his immigration reform promises, Biden also revealed that this will take time, stating, “It’s a matter of setting up the guardrails.” While Biden’s promises for reform have been a source of hope for many immigrants, his recent statements show that change will not be swift.
Immigrant advocates have been pushing President-elect Biden to implement broad changes to the immigration system, one that the Trump Administration has centered around detention and deportation over the last four years. In regards to Biden’s recent comments, Kennji Kizuka, a senior researcher and policy analyst Human Rights First, stated, “There needs to be some sense of urgency. There are a lot of refugees who are in danger in Mexico and who can be processed safely.”
While the future remains to be seen, it is vital for President-elect Joe Biden to fulfill his promises for reforming immigration in an effective manner that will ensure the safety and rights of immigrants.
On December 4, 2020, Judge Nicholas G. Garaufis of the U.S. District Court for the Eastern District of New York ordered full reinstatement of the Deferred Action for Childhood Arrivals (DACA) program. A copy of the order can be found here. This order is a victory for DACA recipients and DACA-eligible youth as it reverses the Trump Administration’s efforts to end the DACA program over the last three years.
Former President Barack Obama implemented the DACA program in 2012. The program shields immigrants who were brought unlawfully to the United States as children from deportation and offers them work permits. To receive DACA, applicants must demonstrate various requirements including continuous residence in the U.S., enrollment or graduation from high school, and lack of felony conviction. A full list of eligibility requirements may be found here.
In his recent decision, Judge Garaufis ordered the Department of Homeland Security (DHS) to announce that it was accepting new DACA applications. The Trump Administration in recent years limited the DACA program to renewals and the issuance of DACA grants and work permits to one year. In response to this order, DHS posted an announcement on December 7, 2020, stating that it would begin accepting first-time requests for DACA, applications for advance parole, as well as extension of one year grants of status and work permits to two years.
According to National Public Radio, “DACA currently protects about 640,000 undocumented young immigrants. As of July, an estimated 300,000 young people living in the U.S. are eligible for the program and still waiting for a chance to apply. That includes 55,000 who have aged into eligibility over the last three years.”
While this order marks a victory for the DACA program, this is not the end of the road. DACA faces a legal challenge in a different case that will be heard in Texas later this month, asking for the program to be deemed unlawful. This litigation may prove futile however, as President-elect Joe Biden has already pledged to fully restore the DACA program. While the future remains to be seen, it appears to be brighter once Joe Biden takes office in January.