TLDR: New legislation is unlikely, but the Biden Administration can continue to implement meaningful changes in the way it administers immigration law. Keep an eye out for important decisions from the federal courts on big issues, including DACA.
The 2022 election left us with a divided government. Congress is split: Democrats maintained narrow control of the Senate, while Republicans took narrow control of the House. Joe Biden, of course, is still president, and the Supreme Court now leans very conservative.
So what does this mean for immigration reform efforts in the coming session? Our New Orleans immigration attorneys at Pelton + Balducci have some predictions.
Both chambers of Congress must come to an agreement for legislation to pass, and a significant majority of Republicans strongly oppose expanding paths to lawful immigration status.
Incoming House Majority Leader Kevin McCarthy has indicated that he opposes any deal to provide a path to citizenship for DACA holders.
In addition, Representative Jim Jordan of Ohio is expected to become Chair of the House Judiciary Committee. He has announced that he wants to impeach Department of Homeland Security Secretary Alejandro Mayorkas. The prospect of meaningful progress on immigration reform in Congress is virtually nonexistent.
The Executive Branch / The Biden Administration
Although we expect no movement on immigration from the legislature, President Biden’s administration still has significant power to shape what immigration looks like in the United States.
Although there is vigorous debate (and litigation) over the scope of Executive Power over immigration, it is still considerable.
Perhaps the best-known example of the use of Executive Power to shape immigration policy is Deferred Action for Childhood Arrivals (DACA), which was created by the Obama Administration.
DACA has protected roughly 800,000 individuals who did not have immigration status, but had come to the U.S. as children. The Obama Administration protected this group of immigrants by placing them in deferred action by determining that they were among the lowest priorities for enforcement (i.e., arrest and deportation).
The Biden Administration has expanded the use of deferred action, especially for children who have qualified for Special Immigrant Juvenile Status (“SIJS”). These are children who lack parental support in their home countries and have had custody or dependency established for them by juvenile courts. Although they are eligible for permanent residency, there are wait times that can last many years.
The Administration has given individuals with SIJS the opportunity to apply for deferred action and employment authorization while they wait for permanent residency.
B: Temporary Protected Status (“TPS”)
Further, in just two years, the Biden Administration has designated 11 countries for Temporary Protected Status (“TPS”) on account of conditions in those countries that make it impossible for them to absorb the return of their citizens who are abroad.
TPS protects citizens of those countries who were in the U.S. at the time of the TPS designation from deportation and grants them employment authorization, so long as they meet other eligibility criteria, including the lack of a serious criminal record.
C: Prosecutorial Discretion
There are, however, other important examples of the use of Executive Power in immigration. Most fundamentally, the President has the power to prioritize which cases to prosecute (“prosecutorial discretion”).
The Trump Administration had a “zero tolerance” policy, which meant that any immigration violation made you a priority for removal. It did not matter whether you were a dangerous criminal or a hardworking sole provider for your children. Enforcement resources would be used to remove you either way.
The Biden Administration, by contrast, has sought to outline priorities for enforcement, recognizing that not all immigration law violations or violators are the same. The Biden Administration published a memo on the use of prosecutorial discretion in immigration cases. The memo announced that the Administration would focus enforcement resources on threats to public safety, threats to national security, and recent arrivals.
Texas and Louisiana challenged the Administration’s efforts at prioritization in court, and a District Court blocked the implementation of the memo. The Supreme Court will review this issue and make a ruling on whether the Administration’s efforts are legal in the current term.
D: Federal Regulations
Other important ways that the Biden Administration can impact immigration are through the operations of the agencies charged with implementing immigration.
Federal agencies are responsible for publishing regulations that guide the implementation of the laws written by Congress. The Trump Administration used regulations to make it more difficult for immigrants seeking benefits, especially in the areas of asylum and “public charge.”
With respect to asylum, the Trump Administration sought to disqualify a number of people from eligibility for asylum and to make it more difficult for individuals seeking asylum to get employment authorization.
“Public charge” is a ground of inadmissibility, which can disqualify a person from getting immigration status if they are deemed likely to need public assistance. The Trump Administration significantly increased the burden for making this showing.
Many of these regulatory efforts were blocked by the Courts, and the Biden Administration has now rescinded them.
E: Management of the Immigration Agencies
The extraordinary delays in immigration case processing are the result of a hiring freeze and additional bureaucracy mandated by the Trump Administration, as well as, of course, the effects of the covid-19 pandemic. The Trump Administration also eliminated ways for advocates and immigrants to communicate with immigration agencies, making it much more difficult to get information on one’s case than it had been previously.
Under Trump, much of the leadership of U.S. immigration agencies publicly expressed hostility and contempt for immigrants and their advocates. USCIS famously deleted recognition that the U.S. was “a nation of immigrants” from its mission statement.
The Biden Administration has reversed many of these changes, filling leadership roles with individuals who appreciate the important contributions immigrants make to the United States and who have embraced a more cooperative approach to working with immigrants and their advocates. Both USCIS and the State Department have been busy hiring to fill vacancies.
And, although the “nation of immigrants” language has not returned to the mission statement, USCIS does now call the United States a “nation of welcome.”
F: Immigration Courts
Another extremely important area where Executive Power comes into play is in the immigration courts, which are administered by the Department of Justice under the authority of the Attorney General.
Indeed, the Attorney General can publish presidential decisions, and the Trump Attorneys General published decisions that eviscerated relief available to respondents in immigration court (especially asylum), and that took away important powers of the immigration judges that allowed them to manage their dockets.
The aim was to turn immigration courts into deportation machines. Attorney General Garland has rescinded a number of these harmful decisions, restoring important forms of relief for immigrants and powers for the immigration judges. The Administration is hiring a number of new immigration judges in an effort to reduce the incredible delays in immigration courts.
As noted above, the Supreme Court will make a decision on the scope of Executive Power in immigration law.
In United States v. Texas, the Supreme Court will decide whether the plaintiff states have the power to override the Biden Administration’s enforcement guidelines.
The Supreme Court may also decide to consider the issue of whether the definition of a “crime involving moral turpitude” is unconstitutionally vague. At the time of this writing, we’re waiting to see if the Court will take this issue up. It is an extremely consequential issue for many immigrants who have been charged criminally.
Also, keep an eye out on the Southern District of Texas for its much-anticipated ruling on DACA. This court has found DACA to be illegal, and the Fifth Circuit Court of Appeals agreed.
However, the Fifth Circuit remanded the case to the Southern District to see if the DACA regulations recently published by the Biden Administration would change the Southern District’s conclusion.
It’s widely anticipated that they won’t, and that the Southern District will again conclude that DACA is illegal, which could mark the beginning of the end for this important program.
Contact a New Orleans immigration attorney today
At Pelton + Balducci, we understand that there is a lot to keep track of. We know how complicated and intimidating immigration and the various sources of law governing it can be.
That’s why we work hard to stay on top of what’s going on in Congress, the Administration, and the Courts so that we can to help our clients understand the immigration process and fight for the lives they want in the U.S. Contact us today to schedule a consultation and talk about your situation.