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Biden’s Immigration Proposals: US Citizenship Act And More

Author: NYC Immigration lawyer Alena Shautsova

President Biden can now be legitimately uttered. For a man that was touted by his opponent as being too ‘sleepy’ to hold office, his administration has been swift to make its mark. In less than one day, Biden signed 17 executive orders and a draught Bill on immigration with plans of sweeping immigration reforms designed to roll-back Trump’s toxic agenda.

The central purpose of the Bill is to:

Create an earned roadmap to citizenship for undocumented individuals.

[It] provides hardworking people who enrich our communities every day and who have lived here for years, in some cases for decades, an opportunity to earn citizenship.

According to the Biden administration, this new Bill will allow people that hold the status of being ‘undocumented’ an immediate right to temporary legal status and a route to gaining a green card within five years. This is a fundamental U-turn on the heavy-handedness of the Trump administration which presided over the deportation of over 330,000 migrants in the year of 2018.

Where Donald Trump had no coherent policy on migration, a patchwork of executive orders were passed to achieve one purpose: fewer migrants on US soil. No matter how morally repugnant or illegal, the administration’s actions were seen as a means to an end.

Biden has already revoked Trump’s travel ban on citizens seeking entry to the US from so-called ‘Muslim’ nations and signed an order ensuring that child refugees are protected from deportation through the fortification of their right to deferred action.

This would seem to be the antithesis of the Trump administration’s approach to immigration. In basic terms, it will result in more non-citizens. Regardless, Biden knows that a few executive orders and a draught Bill will not be enough to stifle some of his critics – those who worry about his connection to the Obama administration and its poor handling of US immigration policy.

During the Obama years, the migration crisis hit, and swathes of migrants found themselves at the doors, desperate for a new home. US border enforcement detained large numbers of children in makeshift housing along the US-Mexico far beyond the 72 hours permitted by law, akin to the policies advocated for and enacted by ex-President Trump. Under the Obama regime, more migrants were deported than under any US executive in history; between 2012 and 2014, more than 400,000 undocumented migrants were escorted out of the United States. President Obama hugely extended the use of the Presidential Executive Order. Its overuse in rolling out immigration policy laid the groundwork for Trump and those around him to consider the executive order a conventional means of governing.

Now, using the executive order to lay down the law on immigration policy has become the norm. If the last four years tells us anything, it is that executive orders as a mechanism for legal change are no way to build a sound or just legal framework in any area of the law.

The Biden administration’s press release on the content of the new immigration Bill does demonstrate some belief that Presidential power should be subject to limitation. When it comes to key areas of immigration policy, the administration is seeking to ban the President from being able to discriminate against non-citizens based on their religion, race, and other factors, which have yet to be discussed. Biden has already signed an executive order, a unilateral decree, relinquishing the discriminatory travel ban on Muslims. As such, how consequential is banning the President’s ability to discriminate against migrants on the basis of race or religion for Biden’s term in office? Not very. It is likely only to affect future Presidencies. And how affecting it will be is, of course, still up for debate.

Vows do little to appease people with sensitivities around Biden’s historical relationship with Obama’s scarred record on immigration. I’m sure they cause a jaundiced eye to yellow. That said, Biden’s Bill does vow to address the large number of DHS and USCIS officers that have been accused of abusing detainees. The administration proposes to fund training and education for DHS and USCIS personnel and pays mention of increasing the provision of special agents at the DHS Office of Professional Responsibility to ensure criminal behavior and administrative misconduct are paid closer attention to. The administration's press release specifically mentions the possibility that the Government Accountability Office (GAO) may be directed to oversee the DHS.

Over the last year, President Biden’s contemporaries and Biden himself have been relentlessly trying to push their platform away from the past policies enacted under Obama. What has appeared thus far is promising. Biden’s new Bill will see ‘alien’ replaced by ‘non-citizen’ in all relevant immigration laws. The wall has been killed and DACA kids saved. The array of proposed changes seem designed to create a kinder system of immigration that integrates undocumented migrants already present in the US and welcomes those who seek refuge. These sentiments will be enough to dampen the fears of most who associate Biden with the Obama record on immigration. But after a time, Biden with have to prove his humanitarian credentials with an equitable legislative framework with a real backbone. The question is, can he pull it off. Or will this be a President who governs by executive order?

25 January 2021
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