Biden’s Sweeping New Immigration Proposals

President Joe Biden, sworn into office on Wednesday, will present Congress with a sweeping immigration reform bill. This bill represents a reversal of many of the previous administration’s immigration policies.

The most prominent feature of the bill is an eight-year path to citizenship for an estimated 11 million undocumented immigrants currently residing in the United States without legal status. Specifically, the bill would allow undocumented immigrants living in the United States as of January 1, 2021, to have a five-year path towards lawful permanent residency, provided that they pass background checks, pay taxes, and fulfill additional basic requirements. Following that, there would be an additional three-year path to naturalization as a U.S. Citizen.

The bill also provides that other noncitizens – such as recipients of Deferred Action for Childhood Arrivals (“DACA”), agricultural workers, and those with Temporary Protective Status – would qualify for a quicker path to lawful permanent residency. They would have to show that they are working, are in school, or meet other requirements that have yet to be released.

This bill, if passed by Congress, will constitute a significant change for residents in states across the country. For instance, New Jersey is home to more than 22,000 DACA recipients who have undergone background checks and lived and worked legally in the United States for many years. Ending DACA and removing these individuals from the workforce – something proposed by the Trump administration – would reduce the State of New Jersey’s annual GDP by nearly $1.6 billion. But New Jersey is no exception – nearly 800,000 children and young adults across the United States have been granted DACA, allowing them to stay in the country and go to school, and giving them the opportunity to contribute positively towards their families and communities. Ending DACA would remove over half a million workers from the nation’s economy, resulting in a loss of over $460 billion dollars in national GDP over the next decade.

Federal Judge Blocks Increase in Immigration Court Fees

On Monday, United States District Judge Amit Mehta issued a nationwide injunction blocking the imposition of significant increases in filing fees for immigrants in court proceedings. The decision was the result of a lawsuit filed by several non-profit immigrant rights groups, including the Catholic Legal Immigration Network, opposing the proposed fee changes. The lawsuit, filed on December 23, 2020, argued that the sharp fee increases were staggering and would severely impact lower-income litigants with fewer financial resources. The fees were set to take effect on January 19, 2021.

On December 18, 2020, the Executive Office of Immigration Review unveiled a rule that would have dramatically increased filing fees in immigration courts and before the Board of Immigration Appeals. For instance, it would have instituted a $50 fee to file for asylum based upon a fear of return to one’s country of origin, raised the fee to file an application for permanent residence through the court from $100 to $305, and raised the fee to appeal a decision of the immigration court from $110 to $975, a nearly 900% increase. The court did, however, allow for modest increases, such as an increase from $110 to $145 to file a motion to reconsider a previous decision of an immigration court.

This injunction is only temporary, and the parties will reconvene at the end of January for further review. The Norris McLaughlin Immigration Law Blog, “Immigration Matters,” will continue to monitor this case as it develops.

Supreme Court Debates Bond Hearings for Detained Immigrants

On January 11, 2021, the U.S. Supreme Court heard oral arguments on the question of whether immigration detainees with prior removal orders were were entitled to individualized bond hearings.

In Pham v. Guzman Chavez, a group of several detainees asserted that they were not subject to “mandatory detention” – a federal statutory provision that allows Immigration and Customs Enforcement to hold a noncitizen for an indefinite period of time without a bond hearing before an immigration judge – but rather eligible for release. Both a U.S. District Court and the Fourth Circuit Court of Appeals, seated in Virginia, concluded that these individuals were entitled to an individualized bond hearing as they applied for relief from removal based upon their fear of return. The petitioners successfully argued that their detention was governed by a provision of the Immigration and Nationality Act that allows for detention “pending a decision on whether the alien is to be removed from the United States” and allows for discretionary release on bond. In its appeal to the U.S. Supreme Court, the government asserts that mandatory detention should continue to apply to noncitizens with prior deportation orders.

A decision is expected in the case later this year and would impact the continued detention of noncitizens across the United States.