As we welcome a new president, as always, unscrupulous attorneys. and non-attorneys alike begin to advertise about significant immigration law change and urges to act fast. As ever, remind consumers to be cautious as law enforcement agencies aren’t always efficient.
Nevertheless, beneficial immigration change is expected under the Biden administration, but it will not happen overnight. The departments of Justice, Homeland Security and State will have to act to reverse the substantial, changes made by the Trump administration. In addition, lawsuits to stymie and delay conscientious change are expected by anti-immigrant groups.
Individuals eligible for Deferred Action for Childhood Arrivals however, should be mindful that new and renewed applications are now being accepted by the U.S. Citizenship and Immigration Service. Among a list of requirements, DACA allows a work authorization and a stay of removal for immigrants that entered the United States before age 16. USCIS will also accept advance parole requests (advanced permission to reenter the United States after departure) based on the terms of the DACA program prior to Sept. 5, 2017. This is great news for immigrants, since the Trump administration attempted to eliminate DACA, although the courts intervened and thwarted Trump’s efforts. In addition, many DACA recipients who had married U.S. citizens but failed to apply for advance parole are now eligible to do so and be on a path to obtain a green card without leaving the country.
It is expected that the Biden government will undo many of the ill-conceived changes initiated by its predecessor. During one term, the Trump administration has executed hundreds of executive orders on border and interior enforcement, refugee and asylum processes, immigration court policy and procedure, and the issuance of visas that will require scrutiny. The Trump regime has also attempted to change existing regulations with corrosive proposed regulations that require a period of public comment before becoming final. The new administration is expected to act immediately after assuming control. Yet, the hiring of new personnel, the assessment of necessary changes, the rescission of executive orders, and the proposal of new regulations will take many months at best.
One recent Trump administration regulatory change directs immigration judges and asylum officers to broadly deny asylum claims, including those matters involving gang persecution and domestic violence. Case law had been trending toward granting these cases, but Trump’s administration has been focused on limiting immigration from third-world countries at all costs. The Trump anti-immigration rule instructs asylum adjudicators to weigh negatively in matters involving migrants who crossed into the United States unlawfully, or passed through other countries without seeking asylum there first. For instance, in 2019, Hondurans applied for 44,000 asylum applications—almost double from the year before. The State Department also reported that women, children and LGBTI Hondurans are particularly vulnerable to trafficking. Yet, in 2020, the same State Department notified Congress that it would cap the number of refugees to 15,000 from 70,000. This is the legal route for humanitarian relief for individuals sophisticated enough to apply. Biden has pledged to raise the annual cap of allowable refugees to 125,000.
Under the Trump regime, the DOJ has also attempted to complicate immigration law by restricting an immigration judge’s discretion to administratively close or reopen certain court cases. In 2018, the Attorney General issued a decision in Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018), ruling that the Executive Office for Immigration Review lacks the authority to administratively close cases where it had been explicitly provided for by existing regulation. Then, the Trump authority in 2020 proposed its own rule to eliminate altogether the authority to close cases or reopen matters of immigration judges and the Board of Immigration Appeals. For years, the BIA and immigration judges could reopen or reconsider any case.
Positive change will require a great deal of work by the departments of Homeland Security, State and Justice. The new administration will also likely confront court challenges that will cause even greater delay, but the burden of positive change should not rest solely in the hands of the executive branch. In due time the public will know if Congress will be positioned to significantly reform immigration laws. For decades, immigrants have been waiting for Congress to clear a path to legalization for millions of habitants residing in the United States, including the hundreds of thousands of eligible DACA applicants.