February 2021

This month, Biden’s landmark immigration bill was introduced in Congress, Alejandro Mayorkas was confirmed as DHS Secretary, a wave of agency and executive actions began to undo the harms brought on by the Trump Administration, and the process of rebuilding a system that has been broken for decades began in earnest. While the first full month of the Biden-Harris Administration made clear that immigration reform is and will remain a top priority, it also underscored that repairing systemic dysfunction will take focus, time, and patience. ICE leadership continues to resist the transformation of the agency and Republican elected officials promise to dig their heels in against major legislative reforms. Here’s what you need to know about this month’s immigration news and what it might mean moving forward.

Read our latest series on why a path to citizenship would help advance policy debates beyond immigration and push us toward more equitable systems across the board, from education to healthcare.

Legislative Updates

The US Citizenship Act

The U.S. Citizenship Act — proposed by President Biden on his first day in office — was formally introduced in Congress this month by Sen. Bob Menendez (D-NJ) and Rep. Linda Sánchez (D-CA). This bill is the foundation of President Biden’s agenda on immigration and reflects a new vision for reform. The legislation creates a path to citizenship for undocumented immigrants, addresses the root causes of migration, modernizes the legal immigration system, and proposes a humane and effective approach to border management. Among other things, it would:

Create an earned path to citizenship and expand legal avenues for immigration by:

  • Creating an 8-year path to citizenship for 11 million undocumented immigrants in the U.S.
  • Granting immediate eligibility to apply for permanent legal residency and a fast-tracked path to citizenship for DACA and TPS recipients and eligible farmworkers.
  • Increasing the annual allocation of employment-based visas from 140k to 170k and diversity visas from 55k to 80k; dramatically increasing the availability of family-sponsored visas.

Address the root causes of migration by:

  • Offering a $4 billion aid package to El Salvador, Guatemala, and Honduras to address the extreme poverty, political instability, and violence that forces people to flee.
  • Establishing processing centers in Central America, which would help displaced persons seek legal protection in the U.S. or in neighboring countries more efficiently.

Modernize the legal immigration system by:

  • Reuniting families who have been separated for years by eliminating decades-long green card backlogs and expanding eligibility for family-based migration.
  • Increasing the number of employment-based green cards available annually, creating exemptions for derivative family members and STEM PhD recipients, and eliminating backlogs by recapturing unused visas from prior years.

Create a safe and humane border processing system by
allocating funding to:

  • Enhance existing border safety technology instead of increasing the presence of militarized border patrol agents.
  • Provide additional training and technology to expedite case processing and reduce the court backlog.

An array of Senate Republicans, however, have been aggressively attacking the bill and are certain to filibuster it, meaning it will take 60 votes to pass. Even if all 50 Democrats voted for it, that would require 10 Republican senators to join them. From today’s vantage, that appears exceedingly unlikely.

Despite the fact that 75 percent of Americans support a path to citizenship for undocumented immigrants who meet certain criteria — including 57 percent of Republicans — our Republican elected officials cater to a shrinking and increasingly extreme slice of the American electorate. If we hope to pass widely popular and long overdue legislation like the U.S. Citizenship Act, we will have to first reform our democracy and demand a truly representative government.

Incremental legalization bills

Given the seemingly insurmountable challenge of getting 10 Senate Republicans to vote for the US Citizenship Act in the near term, efforts have already begun to advance legislation that grants a path to citizenship to certain groups within the undocumented population. The goal is to see if more incremental steps can garner the support of 10 Republicans as we continue the march toward our ultimate goal of citizenship for all.

On the House side, we anticipate votes the week of March 8 on two bills that passed the House during the last Congress: the Dream and Promise Act as well as the Farm Workforce Modernization Act. The DREAM and Promise Act would provide a path to citizenship for nearly two million people who came to the U.S. as children, a group that includes but is not limited to DACA recipients and DACA-eligible people. For two decades, Congress has failed to pass this widely supported legislation. The FWMA would legalize an estimated 1.2 million undocumented farmworkers and create new protections and parameters around the temporary farmworker program. Be on the lookout for updates regarding how you can support and uplift those bills.

On the Senate side, Sen. Dick Durbin (D-IL), the original sponsor of the DREAM Act back in 2001, has joined again with Sen. Lindsey Graham (R-SC) to reintroduce the Dream Act of 2021. The goal is for their bill, along with the SECURE Act, a bill to legalize TPS recipients, and a Senate version of the FWMA to be combined into a package on the Senate floor sometime in April or May. At that point, we will find out whether 10 Senate Republicans join this common-sense effort to move the country forward.

We will do everything in our power to help it cross the finish line.

Agency action on immigration

The Biden-Harris Administration is charged with the daunting task of undoing the vast majority of changes made to the immigration system under the prior administration. In 2017, the Immigration Policy Tracking Project — launched by Lucas Guttentag and supported by Emerson Collective — set out to create and maintain a comprehensive database cataloging every immigration policy implemented under the Trump Administration. Over the course of the last administration, the tracking team recorded 1,058 changes to immigration policies and practices, nearly all of which are punitive or restrictive. This month, the Biden-Harris Administration and DHS took initial strides toward rescinding and replacing some of the most harmful policies.

Remain in Mexico

The government is working to end the Remain in Mexico program and process the 25,000 asylum seekers that have been caught in limbo due to the Trump-era program. In tent camps along the Mexican side of the border, families have spent more than a year — many have spent more than two years — waiting for asylum hearings that never came. Meanwhile, the pandemic poses an omnipresent threat to crowded, makeshift homes; the freezing temperatures that devastated Texas did not stop at the border; and the mental health crisis that has been brewing for months is coming to a boil. The administration is under intense pressure to come up with a solution quickly, but has few options given the degree to which the prior administration destroyed the asylum system.

Finally, there is reason for hope: On February 19, the Biden-Harris Administration is began to process a small number of families with active Remain in Mexico cases, building toward the target rate of roughly 600 people per day through two ports of entry, with a third port processing fewer people. At this stage, the government is only processing pending cases, previous applicants whose cases were dismissed or denied are not included.

A task force on family reunification

President Biden signed an executive order establishing a cabinet level interagency task force on family reunification, led by DHS Secretary Alejandro Mayorkas. Our incredible colleague, Michelle Brané of the Women’s Refugee Commission, has been named the Executive Director of the task force; she will lead with deep compassion and expertise. The task force is charged with identifying all children who were separated from their families and facilitating the reunification of those families; issuing recommendations for possible avenues to legal status, should the family wish to reunify in the United States; issuing recommendations regarding mental health services for all directly impacted family members; and providing regular progress reports to the President.

A new approach to asylum and migration from Central America

In a powerful rebuke to the prior administration’s abandonment of asylum seekers, President Biden issued a sweeping executive order to “implement a multi-pronged approach toward managing migration throughout North and Central America that reflects the Nation’s highest values.”

Released alongside the family reunification task force, this order charted a plan to address the root causes of migration by confronting the instability, violence, and economic insecurity that drives people to leave; collaborating with regional partners in foreign government, nonprofits, and international organizations to stabilize the social, political, and economic dynamics in the Northern Triangle; and ensuring that those who do choose to leave their home countries are able to seek asylum in the United States.

It directed the United States government to expand avenues for legal migration in addition to rebuilding a decimated asylum system. It ordered a comprehensive review of all of the recent regulations and policies that created unnecessary barriers to obtaining legal status or seeking asylum and an assessment of the troubling agreements with Central American countries that required asylum seekers to apply for refuge in Central America before they were eligible to seek protection in the United States. In the days following the executive order, the State Department announced that it will be ending those agreements.

This executive order reflects some of the work that our colleagues at Emerson Collective and beyond have long advocated for; it recognizes the humanity our immigration system was stripped of these past four years.

ICE announces interim enforcement priorities during the DHS review

President Biden marked the start of his term by announcing a 100-day pause on deportations while DHS underwent a full agency review and gathered recommendations for how to best reset their priorities. The president also charged ICE with establishing and adhering to enforcement priorities (within the guidelines set by the president) until the review is complete. In compliance with that order, the recent ICE memo lists the following categories of people they will prioritize for deportation during the review period:

  • People considered a national security risk
  • People who entered the US on or after November 1, 2020
  • People ICE deems to pose “a public safety risk” based on certain criteria

The language set forth by ICE has been criticized by some as perpetuating a narrative that frames immigrants as criminals and does leave some room for agents to exercise their discretion. Despite these very legitimate concerns, these priorities do mark a dramatic departure from the Trump-era policy that made all undocumented people an ICE target. And these interim priorities will be superseded by permanent ones — we will push alongside our colleagues to ensure the final guidelines reflect our collective values and give peace of mind to the vast majority of undocumented people who are deeply embedded in American communities.

Deportations continue during Biden’s moratorium

The deportation moratorium has been entangled in litigation since it began, and ICE agents who grew accustomed to operating under Trump’s leadership are resistant to exercising restraint. As soon as the pause took effect, a federal district judge issued a two-week temporary restraining order, which he soon extended for an additional two weeks. When that month was up, the judge issued a preliminary injunction that indefinitely blocks the pause as litigation continues.

DHS and ICE leadership have been at odds with how to operate under a moratorium caught in legal limbo. For the past month, over 26,000 people have been deported, and Black migrants have been disproportionately targeted. Many deportation flights have been to Haiti — which is undergoing violent political unrest — and have included the removal of families and young children. The immediate multi-pronged conflict between advocates, DHS leadership, and ICE has painful consequences; it confirms that it will be difficult — but critically urgent — to reign in an agency that previously enjoyed unchecked power.

An executive order lays the groundwork for a US response to climate migration

President Biden issued an executive order this month that, among other things, tasked Jake Sullivan, the National Security Adviser, with developing an interagency report on the impacts of climate change on migration. The report will include proposals for how the United States should mitigate climate change and accommodate displaced people.

Climate change is increasingly driving migration and the policy response offered by the United States will have enormous impacts on the livelihoods of millions, for better or for worse. The project offers an important opportunity for the government to collaborate with stakeholders from public and private sectors across the western hemisphere, engage with experts in both climate change and immigration, and expand an array of flexible avenues for legal immigration to meet rising demand.

It is also an opportunity to change the narrative of how governments approach the intersection of climate change and migration: historically, hostile recipient country governments have funneled migrants into areas more vulnerable to climate change as a way to discourage a sense of permanency for refugee communities.

As the first month of the Biden Administration draws to a close, we have a clear view of the work ahead: there is much more to be done, but the progress is real.

Managing Director of Immigration at the Emerson Collective. Advocate for humanity, sports junky, 1/2-assed Buddhist, proud papa and spouse. Views obv my own.