Immigration & the Biden Administration: One Year Later
By: Flaviano Graciano / NMILC Communications Manager
Hitting the Ground Running
President Biden and his administration wasted no time in getting to work on undoing the mess of an immigration system left by the previous administration and its xenophobic policy agenda. Immediately after taking office, the same day as his inauguration, President Biden signed a number of executive orders reversing some of Trump’s harmful policies like the discriminatory Muslim ban. The Biden administration also quickly halted construction of the border wall.
“Those actions are a stain on our national conscience and are inconsistent with our long history of welcoming people of all faiths and no faith at all,” Biden proclaimed in the executive order.
Biden also passed the Executive Order on the Revision of Civil Immigration Enforcement Policies and Priorities to quickly reverse several policies targeting undocumented immigrants like Trump’s executive order that defunded sanctuary cities and also called for the immediate removal of all undocumented immigrants living in the country. Biden also moved quickly to protect and strengthen the Deferred Action for Childhood Arrivals program (DACA). His executive action called for “preserving and fortifying” the DACA program.
“The Biden administration is pushing for immigration reform to create long-term permanent solutions for many in our immigrant community like DACA recipients, Temporary Protective Status (TPS) holders, and others who have been here for so many years,” NMILC Supervising DOJ Accredited Representative Shalini Thomas stated.
Thomas says NMILC clients who are renewing their DACA status or green card and clients applying for citizenship have since seen positive changes in the last year related to their cases.
Making right by the thousands of undocumented immigrant families inhumanely separated by Trump’s “zero-tolerance” border policy was another of Biden’s top executive priorities. On February 2, 2021, Biden signed the Establishment of Interagency Task Force on the Reunification of Families executive order with the goal to reunite the more than 2,000 children who were separated from their families.
“My Administration condemns the human tragedy that occured when our immigration laws were used to intentionally separate children from their parents or legal guardians (families), including through the use of the Zero-Tolerance Policy,” Biden stated in his executive order.
NMILC staff members represented many clients who were separated from their children during the onset of the xenophobic policy. Thomas, who at the time was working as a volunteer with Annunciation House in El Paso, Texas, helped coordinate travel logistics and pro bono representation for reunified families. Thomas also helped legal coordinators work on cases for families that were still separated.
“Family separation was a whole separate level of evil. It was awful and eerie,” Thomas said. “The first day I was in the airport with reunified families, I witnessed a 4-year-old start to bawl because he saw a security guard in uniform. The last time he saw a security guard in uniform, he was separated from his mom.”
At the end of 2021, the Department of Homeland Security (DHS) announced it had reunited 100 families separated under Trump’s zero-tolerance policy and had identified and registered 345 additional children for reunification.
NMILC Intakes, Partnerships, and Social Services Manager, Emma Race, says progress has also been seen at the federal level for some of our survivors of crime clients. Previously under the Trump administration, survivors of violent crime and domestic crime were routinely detained and removed from the U.S. despite having pending applications for relief. Under the Biden administration, DHS released new prosecutorial discretion guidance for ICE attorneys, allowing them to close cases for survivors of crime.
“This is an incredible shift from the previous administration,” Race said. “Under the previous administration, ICE could pursue every case to completion.”
“Our understanding is that the Biden administration’s USCIS is more inclined to positively exercise discretion in favor of our clients and applicants, which is wonderful,” said Thomas. “I believe many of us saw a positive change at the local USCIS office in how officers adjudicated cases, starting immediately after inauguration, which helps those whose cases are adjudicated locally.”
Inheriting A Broken Immigration System
There is no question that the Biden administration has a lot more work to do when it comes to reforming a chaotic and broken immigration system left by the previous administration. Some of the promising messages from his electoral campaign and inauguration have, a year on, slowly faded as a result of political opposition and negative court decisions from Trump-appointed federal judges and anti-immigration political leaders.
One key promise point on the Biden campaign trail was a 100-day moratorium on most deportations. The idea behind the moratorium was to allow time for a more comprehensive review of the DHS’s enforcement policies and priorities while working toward reversing xenophobic and racist Trump-era policies. On January 20, 2021, DHS released a memo announcing the moratorium, but only six days later, a Trump-appointed federal judge halted the moratorium with a temporary restraining order. A permanent ban came a month later after the same judge ruled the moratorium a violation of federal law on administrative procedure.
“Every time the courts ruled against Trump, they immediately tried again and again until they successfully managed to implement their immigration goals and policies,” Thomas stated. “Since Biden took office, federal courts have switched from arguing that the President has tremendous unilateral authority when it comes to immigration policies to arguing that the President's authority is restricted, which has made it very challenging for the Biden Administration to implement many of their immigration policies.
The Biden Administration also attempted to end the Trump-era Migrant Protection Protocols (MPP), but it was forced to reinstate MPP under court order in early December 2021. Unfortunately, the administration decided to expand the group of migrants who can be placed into MPP to include all Western Hemisphere nationals, including Haitians and Caribbean nationals, previously exempted under MPP. The reinstatement and expansion of MPP and the continued use of Title 42 expulsions, another Trump-era policy, clearly demonstrate a worrying drift from promised immigration reform under the Biden Administration.
MPP forces individuals who ask for asylum at our southern border to remain in Mexico while their asylum applications are processed, leaving most asylum-seekers with no choice but to wait and live in dangerous and hazardous conditions until their court hearing. Title 42 allows the federal government to misuse public health authority to deny asylum at U.S. ports of entry and expel people who are deemed a threat to public health, without allowing them even the minimal access to the courts allowed under MPP.
Thomas says the Biden administration has two options to fight back against the reinstatement of MPP: they can appeal the court order or work towards lawfully rescinding it under the Administrative Procedure Act (APA). APA is intended to “govern the process by which federal agencies develop and issue regulations,” and requires the federal government to publish notices of proposed regulations in the Federal Register to allow 30 days for public comments.
Last August, the U.S. District Court for the Northern District of Texas ordered DHS to reinstate MPP until “it has been lawfully rescinded in compliance with the APA,” according to court records. Since then, the Biden administration has filed a petition for a writ of certiorari. Given the current conservative nature of the Supreme Court, this effort might prove futile, yet another political barrier left behind by the Trump administration.
According to our national partners at United We Dream, the largest immigrant-youth led organization in the country, under the Biden Administration more than 1.8 million immigrants have been deported or expelled.
“The Biden Administration’s expansion of the ‘Remain in Mexico’ policy has only made a bad situation even worse,” Race stated.
On top of halting deportations for 100 days, another promising point of the Biden administration was ending the federal government’s use of private prisons. According to his website, Biden plans to “strengthen America’s commitment to justice” by focusing on making clear that the federal government “should not use private facilities for any detention, including detention of undocumented immigrants.”
In his first week in office, the Biden administration made quick use of executive power to ban the Department of Justice (DOJ) from renewing or starting new private prisons contracts. Unfortunately, the executive order does not apply to immigrant detention centers or any facility working with Immigration & Customs Enforcement (ICE), allowing for many facilities to exploit loopholes that encourage business partnerships with ICE in order to stay open.
These partnerships are notorious for resulting in mistreatment of immigrant detainees, violations of their human rights, and inhumane living conditions. In May 2021, DHS ordered ICE to end two of these partnerships and close two detention centers after news of forced hysterectomies and extreme use of force through pepper spray and canine attacks on immigrant detainees broke out.
“We have an obligation to make lasting improvements to our civil immigration detention system,” Secretary of Homeland Security Alejandro Mayorkas said in a statement. “DHS detention facilities and the treatment of individuals in those facilities will be held to our health and safety standards.”
The reality continues to be that many other detention centers, like the ones DHS closed down, continue to operate across the country. Here in New Mexico, our team recently filed a federal lawsuit against ICE for failing to comply with a FOIA request. Through FOIA, we requested important information needed for the investigation of an inhumane pepper spray attack on 20 immigrant detainees that occurred during the onset of the COVID-19 pandemic at the Torrance County Detention Facility.
This same detention center is where close to 45 Haitian asylum seekers were held after being detained in the notorious horseback roundup by immigration officials that occurred in Del Rio, Texas, in September 2021. To make matters worse, the now released detainees were originally denied access to legal services and access to confidential legal calls.
Facing Historic Immigration Backlogs
NMILC represents many immigrants in their applications for congressionally created humanitarian protections, such as Special Immigrant Juvenile Status (SIJS) for abused, abandoned and neglected youth and U visa and T visas for immigrant survivors of crime.
For many years, the Congressional caps on visa numbers that are in place for humanitarian visas, such as U visas and SIJS visas, have undermined the intent of these protections and posed obstacles to economic security for NMILC clients. Delays in processing work permits caused by the pandemic have further exacerbated this problem in recent years.
Unfortunately, immigrant youth are no exception to the backlog.
According to a report published in November 2021 by the End The SIJS Backlog Coalition, SIJS backlogs grew to more than 63,000 youth by April 2020. The backlog is caused by the current law caps numbers of visas for SIJS recipients as part of the “employment-based” visa annual ceiling of 140,000 visas which also includes per country limits. Only 7% of this total number are issued to SIJS youth. The “cap” restricts visa number and related green card availability to SIJ recipients and, due to per country limits, particularly impacts youth from Central America and Mexico.
“The SIJS backlog is adversely affecting many of our young clients who have experienced abuse, abandonment, or neglect,” Elliot Edeburn, NMILC Jesuit Volunteer, stated. “It is jarring and unjust that I work with SIJS clients with pending applications who are older than I am (23) and have been in the SIJS process since they were 17 or 18 years old.”
While changing the SIJS and U visa backlog and requires congressional action, such as passage of the Immigrant Witness and VictimProtection Act of 2021, which was recently introduced in the House, the Biden Administration has been able to make progress in reducing bottlenecks and delays in the U.S. immigration system through administrative agency process changes.
On June 14, 2021, USCIS announced the U nonimmigrant Bona Fide Determination (BFD), which allow U visa petitioners and their family members with pending U visa petitions to receive 4 year work permits and deferred action status while they wait for the visa. This was a creative administrative solution by USCIS to address the massive U visa backlog and limitations of the 10,000 annual statutory cap.
“Many NMILC clients have begun to receive work permits in a more efficient timeframe as a result of the new ‘bona fide determination’ process,” Race said.
Increased staffing and training is also in the works by the Biden Administration according to a report by the Federal News Network. They reported that last summer, the State Department launched a hiring surge to help with the backlog.
Moving Forward With Our Community
In the meantime, NMILC will continue to fight for the advancement of justice for our immigrant communities. Last year our team served 5,161 clients from 26 of New Mexico’s 33 counties. Our Detention & Asylum team provided legal information, guidance, and pro se services to 252 individuals at the Torrance County Detention Facility. Our SIJS team represented 119 immigrant youth in 2021 and got 38 SIJS residency applications approved to date.
“To counteract these systems, we must continue to fight alongside immigrants to create supportive and empowering communities,” Race said.
As we move into Biden’s second year in office it is important to keep holding him and his administration accountable, but also understand the mess of an immigration system he was handed by the previous administration.
“As an immigration attorney, it is relieving to know that the current administration is working on reversing the restrictions placed on immigration by the previous administration,” NMILC Staff Attorney Eunjin Choi stated. “What we need are more tangible developments in different areas of immigration law that will more directly impact our clients.”
To learn more about the work NMILC moved forward during Biden’s first year in office, click here to read our 2021 annual report.
Flaviano Graciano is the Communications Manager for the New Mexico Immigrant Law Center.
Posted Ferbuary 21, 2022 by Flaviano Graciano, NMILC Communications Manager.
Copy editing by Donna Roxey, NMILC Communications Volunteer
