Biden’s great immigration undoing

Orders, pathway to citizenship seek to undo Trump measures

HUNDREDS OF THOUSANDS of Massachusetts immigrants could be impacted by President Biden’s immigration overhaul, which includes a massive bill sent to Congress on Wednesday that was accompanied by a series of executive orders.

Those orders, signed after Biden assumed the presidency, will reverse Trump-era travel bans that focused primarily on immigrants from Muslim countries. Another executive order allows young immigrants brought into the country without authorization to once again apply for the Deferred Action for Childhood Arrivals, or DACA, program, which former president Trump suspended in 2017. A third will reverse a memo signed into law by Trump in 2020 that excluded undocumented immigrants from Census counts.

Biden also signed an order to stop border wall construction and rescind a national emergency declaration Trump used to divert over $10 billion in federal funds to the wall. Biden’s Department of Homeland Security also announced Wednesday night that it is placing a moratorium on most deportations for 100 days, beginning on January 22.

The focal point of the legislative package, called the US Citizenship Act of 2021, is an eight-year pathway to citizenship for immigrants who are undocumented, and an expedited track for those immigrants here with temporary statuses like Temporary Protected Status (TPS) and DACA. A previous failed Obama-era proposal sought a 13-year pathway. New Jersey Senator Bob Menendez is the lead sponsor of Biden’s immigration bill.

“It’s going to be a lot of undoing,” said Eliana Nader, who chairs the New England Chapter for the American Immigration Lawyers Association. Trump issued over 400 immigration-related executive orders in his tenure, most of which Democrats seek to rescind.

Although immigration advocates cheered the moves by the Biden administration, there is no guarantee the legislation will pass. An immigration reform bill has long been the bane of Democratic and Republican administrations. The administrations of former presidents George W. Bush and Obama both tried to pass legislation and failed. Trump never tried to pass a comprehensive bill, but instead used executive actions to restrict immigration.

Democrats control the House and very narrowly control the Senate, which means immigration legislation has a chance but a very narrow one. It seems inevitable that Biden will take a leaf out of Trump’s book and also move policy through executive actions in the meantime.

There is no doubt the proposals and orders will be felt in the Bay State. There are over 1.2 million immigrants in Massachusetts, split into a variety of groups. The state is home to an estimated 215,000 undocumented immigrants, according to 2018 Census data. Immigrant advocates say that number is far greater, but hard to track down. Hundreds of thousands more have work permits in the over 180 different categories that exist to be employed legally. Many more are asylum recipients and refugees.

Young people and temporary residents take priority

DACA recipients and TPS holders (who can remain in the US temporarily after armed conflict or environmental disaster in their home country) would be eligible for US citizenship after three years as long as they pass criminal, security, and tax-related background checks. People with temporary protected status from such countries as El Salvador might want to remain in the US permanently after spending so many years here and facing continued violence in their home countries.

There are 12,000 TPS holders living in Massachusetts, most of whom are from El Salvador, Haiti, Honduras, Nepal, and Nicaragua.

The legislation would immediately make DACA recipients and TPS holders eligible for green cards.

Additionally, immigrants without legal statuses would be able to apply for a temporary legal status, which they would have to hold for five years before applying for a green card. Citizenship would follow that after three years.

DACA, signed into law by former president Obama in 2012, was rescinded in 2017, and mired in years-long court battles. Last summer, the Supreme Court said the process the government used to do away with the program wasn’t valid, allowing the program to continue for existing recipients. Further restrictions, including making renewals annual instead of every two years, and keeping the fee at $495, were implemented by US Citizenship and Immigration Services, making it harder for immigrants to stay in the program. On top of that thousands of young immigrants in Massachusetts who were eligible could not apply as new recipients.

“With the Trump administration, it was a battle, a tug of war, because I didn’t know what was going to happen,” said DACA recipient Estefany Pineda. Pineda, who is in her final year of undergraduate studies while also pursuing a concurrent master’s degree, said she was unsure of whether she would be deported to El Salvador when the program was initially rescinded in 2017. She spent the day fielding application-related questions from friends who might be eligible for the program who had heard that Biden was planning to reinstate it for new applicants.

About 5,600 Massachusetts residents had DACA in 2019, according to the Massachusetts Immigrant and Refugee Advocacy Coalition, a group which advocates for immigrants. Massachusetts Attorney General Maura Healey said in 2020 that there are around 20,000 DACA-eligible residents waiting for a policy change.

Asylum seekers, many of which seek to join family in Massachusetts, get a leg up

One of Trump’s most aggressive immigration changes was around asylum and the migration of immigrants legally seeking refuge in the US. His 2018 Migrant Protection Protocols, (known as the Remain in Mexico program) kept asylum seekers awaiting court hearings in tents on the other side of the Mexican border.

For two years, humanitarian rights organizations, the United Nations, and attorneys decried the move as a violation of international law. In Massachusetts, several families living in the state for years filed suit against the Trump administration with their asylum-seeking family on the other side of the border with the American Civil Liberties Union of Massachusetts.

On Wednesday evening, the Department of Homeland Security announced it is suspending new enrollments into the Remain in Mexico program. The Biden administration plans to make an announcement about the asylum policy on January 29.

Separately, Biden’s immigration bill will seek to eliminate the one-year deadline for filing asylum claims, which impedes many immigrants who arrive but don’t know they have a year to officially file their case in immigration court, and are then stuck being undocumented.

Visas and family-based immigration to change

Many of Trump’s administrative actions were related to how immigrants could legally move to the country and work. Biden will attempt to attack massive visa backlogs that have built up, and raise the visa number cap on certain countries.

The legislation also seeks to stop “aging out” for the children of immigrant parents with work visas. Right now, when immigrant children of parents here legally reach 18, they often lose their legal status, or have to seek another one, including through student visas, DACA, and other routes. Often, the families are unaware this will happen and the financial burden it will impose.

“It’s really devastating. I mean, the child needs to then independently qualify for some other visa categories,” said Mahsa Khanbabai, a Boston area immigration attorney. “It’s a huge burden on families.”

Immigrants with approved family sponsorship petitions will be allowed to join family in the US with temporary legal status while they wait for green cards. USCIS’s longtime employment-based visa backlog would be assessed, and graduates of US universities with advanced science, technology, engineering, and math degrees exempted from any caps.

Biden also hopes to grant the Department of Homeland Security the power to adjust immigrant visa numbers based on economic conditions through his legislative proposal.

The legislation will also focus on reinstituting family reunification, a program that used to allow family members applying for refugee, temporary, or asylum status to stay in the US during their application.

Biden also aims to abolish two long-standing rules for immigrants found to be in the US illegally. Currently, immigrants in the US for more than six months but less than a year are barred from returning for three years. Those who are found to be in the US without authorization for more than one year are barred from reentering for 10 years or more.

The three-year and 10-year restrictions prevent many people from being able to get green cards from abroad, since they have to wait for the time limitation to expire, according to Mariam Liberles, a staff attorney with the Harvard Immigration and Refugee Law Clinic. “It would really be a tremendous help in their petitions,” she said.

That change alone would impact at least a million people nationwide, according to the Massachusetts Immigration and Refugee Coalition.

Undocumented immigrants who are victims of a violent crime, kidnapping, or domestic violence in their home country or in the US are also on the list for assistance. The Biden administration seeks to increase the cap on the visa for that group from 10,000 a year to 30,000. U-visa applicants often wait up to 12 years to gain legal status, so the expansion of the program would expedite that timeline to what it used to be. “You used to get it within a few months,” she said. “This could save them.”

Immigration courts to get backup 

As former president Trump cracked down on detaining people in the country without authorization, new cases flooded an already strained immigration court system. Administered by the Executive Office of Immigration Review, the national court backlog grew from 542,000 in 2017 to 1.29 million in December 2020. Massachusetts ranks 7th in the country for the number of cases waiting to be processed, with 55,395 cases. The average wait time is 4.5 years, according to the Transactional Records Access Clearinghouse (TRAC) of Syracuse University.

Biden’s administration seeks to chip away at the challenging jam, Nader of the American Immigration Law Association said.

Biden’s legislation includes funding and staffing resources for the Office of Immigration Review. A fact sheet about the legislation sent to reporters notes that the bill will increase the number of immigration judges working in the court system, something that the attorneys and judges have been seeking for years.

“There’s going to be a lot more on this coming up I bet,” Nader said.

Travel ban lifted

Biden signed an executive order Wednesday evening lifting Trump’s travel bans, and instructing the State Department to restart visa processing for impacted countries. People denied in the past four years who have petitioned to be reassessed will be granted that ability, and the administration will look into the reasons for why the Trump administration denied each person.

“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,” said Biden in a press statement.

Although the first and second iterations of the so-called Muslim bans were struck down by federal judges, the Supreme Court upheld a third version of the policy in June 2018. With the addition of six countries to the original seven impacted nations, the restrictions had essentially blocked travel, immigration, and refugee resettlement from Iran, Libya, Somalia, Syria, Yemen, North Korea, Nigeria, Kyrgyzstan, Tanzania, Eritrea, Sudan, Myanmar, and Venezuela.

“The Muslim ban was always misguided, always discriminatory, and I can’t think of a better way to start off president Biden’s administration than undoing that ban,” said Susan Church, a Cambridge-based attorney who led a successful lawsuit against one of the travel bans. “There are so many US citizens who have been waiting for members of their families to join them in the United States.”

Admissions of Muslim refugees plummeted under the Trump administration, from nearly 40,000 in 2016 to 2,500 in 2020, according to Lutheran Immigration and Refugee Service, a social service group that tracks immigration data.

Meet the Author

Sarah Betancourt

Reporter, CommonWealth

About Sarah Betancourt

Sarah Betancourt is a long-time Latina reporter in Massachusetts. Prior to joining Commonwealth, Sarah was a breaking news reporter for The Associated Press in Boston, and a correspondent with The Boston Globe and The Guardian. She has written about immigration, incarceration, and health policy for outlets like NBC, The Boston Institute for Nonprofit Journalism, and the New York Law Journal. Sarah has reported stories such as a national look at teacher shortages, how databases are used by police departments to procure information on immigrants, and uncovered the spread of an infectious disease in children at a family detention center. She has covered the State House, local and national politics, crime and general assignment.

Sarah received a 2018 Investigative Reporters and Editors Award for her role in the ProPublica/NPR story, “They Got Hurt at Work and Then They Got Deported,” which explored how Florida employers and insurance companies were getting out of paying workers compensation benefits by using a state law to ensure injured undocumented workers were arrested or deported. Sarah attended Emerson College for a Bachelor’s Degree in Political Communication, and Columbia University for a fellowship and Master’s degree with the Stabile Center for Investigative Journalism.

About Sarah Betancourt

Sarah Betancourt is a long-time Latina reporter in Massachusetts. Prior to joining Commonwealth, Sarah was a breaking news reporter for The Associated Press in Boston, and a correspondent with The Boston Globe and The Guardian. She has written about immigration, incarceration, and health policy for outlets like NBC, The Boston Institute for Nonprofit Journalism, and the New York Law Journal. Sarah has reported stories such as a national look at teacher shortages, how databases are used by police departments to procure information on immigrants, and uncovered the spread of an infectious disease in children at a family detention center. She has covered the State House, local and national politics, crime and general assignment.

Sarah received a 2018 Investigative Reporters and Editors Award for her role in the ProPublica/NPR story, “They Got Hurt at Work and Then They Got Deported,” which explored how Florida employers and insurance companies were getting out of paying workers compensation benefits by using a state law to ensure injured undocumented workers were arrested or deported. Sarah attended Emerson College for a Bachelor’s Degree in Political Communication, and Columbia University for a fellowship and Master’s degree with the Stabile Center for Investigative Journalism.

Biden’s legislation will include a provision limiting presidential authority to issue future bans.

“There’s just so much more work,” said Church. “This is a good start.”