The last five years or so have brought significant changes to the United States’ immigration law. With a new presidential administration, 2021 brought more change. Wednesday’s Inauguration Day was momentous for immigration, and here is a summary of key developments and what they mean:
- Introduction of a comprehensive immigration reform bill into Congress- If passed as-is, this would be tremendous, and, among other things, give a path to citizenship for approximately 11 million people who are here without status. This bill, however, faces a huge uphill battle in Congress and could be altered, or not passed at all. Therefore, this is something to watch closely, but people should not make concrete plans assuming it will pass.
- 100-day moratorium on deportations and revision of enforcement priorities– DHS’ overzealous enforcement, including overreach by ICE and USCIS’ increased practice of placing people in removal proceedings stemmed from an executive order and subsequent policy memos issued at the beginning of the prior administration. Those orders were all rescinded, with DHS directed to revisit their enforcement priorities. In the meantime, there is an immediate 100-day moratorium on deportations, and, beginning February 1, DHS is directed to prioritize security threats, recent entrants, and non-citizens recently released after aggravated felony convictions. While we are waiting for more guidance, this policy should make things safer for immigrants and may provide some new options for those in removal proceedings or with outstanding removal orders.
- Ending the Muslim Ban– The order rescinds a ban on immigration from several majority-Muslim countries. While effective immediately, consulates are currently at reduced capacities due to COVID, so it may still take some time for people previously subject to the ban to come to the U.S.
- No new enrollment in the MPP (or “Remain in Mexico” program)- MPP has forced tens of thousands of asylum seekers to stay in dangerous camps in Mexico while fighting their cases in U.S. immigration courts. With the immigration court closures due to COVID, however, even these hearings have been delayed. Asylum seekers will still need to address the ban on non-essential travel from the land border with Mexico, and this order does not help those currently in the MPP system. This is therefore a positive first step, but much more will need to be done soon.
- Defunding and pausing the border wall– President Biden lifted the “emergency” declaration which allowed expedited construction of the border wall, paused construction, and ordered funds for the Department of Defense which had been diverted to the border wall to be reallocated. This does not necessarily mean construction of the border will stop in this administration but is a positive first step.
- “Preserving and fortifying DACA”- President Biden directed the administration to “preserve and fortify DACA.” There were no particular instructions with this order, so it is unclear what effect, if any, it will have. This would, at a minimum, mean stopping efforts by the DHS to rescind DACA. Also, there have been some legal challenges to DACA on procedural grounds- it is possible DHS will address those issues.
- Stopping efforts to exclude undocumented immigrants from the census- While this will not impact immigration directly, it is an important step to provide representation to everyone living in the U.S.
- Reinstating Deferred Enforced Departure for Liberians- This will allow Liberians to again apply for protection from removal and employment authorization. Note- many Liberians eligible for DED are also able to apply for residency through a separate program.
- Regulatory freeze- The President stopped the processing of regulations begun in the past administration that had not yet been finalized. This includes many immigration regulations that the prior administration tried to implement, but could not finish in time, and would have included things such as requiring biometrics for permanent residents and visa petitioners, as well as more changes to asylum and removal proceedings. While not unexpected, the official halt of these potential regulations is welcome news.
The White House has indicated that upcoming executive orders will be focused on a specific issue each day. The next set of executive orders on immigration is planned for Friday, January 29th. We anticipate that the orders will include lifting the immigrant visa bans, and other positive developments.
We recommend that anyone who thinks they could benefit from the changes continue watching for further developments, and consult with an immigration attorney before filing anything with the government.
Bean + Lloyd, LLP is an immigration law firm in Oakland, California
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