“Immigration law is a mystery and a mastery of obfuscation, and the lawyers who can figure it out are worth their weight in gold.”  –  former INS spokeswoman Karen Kraushaar.^[1]Nurith C. Aizenman, “Md. Family Ensnared in Immigration Maze; After Changes in Law, Couple Faces Deportation,” Washington Post, April 24, 2001 (quoting INS spokeswoman Karen Kraushaar, available … Continue reading

Immigration law is extraordinarily complex. It has been described as a “maze of hyper-technical statutes and regulations that engender waste, delay and confusion,”^[2]Drax v. Reno, 338 F. 3d 98, 99-100 (2d Cir. 2003). and an example of “Congress’s ingenuity in passing statutes certain to accelerate the aging process of judges.”^[3]Tim Lok v. INS, 548 F.2nd 37 (2nd Cir. 1977). Therefore, it has been strange for those of us who thread this labyrinth on a daily basis to acclimate to a world in which immigration laws and rulings news make world headlines on a daily basis.

It began on January 27, 2017, when former President Trump’s promise of a “total and complete shutdown of Muslims entering the United States” became a presidential executive order. President Trump grounded his executive action in Section 212(f) of the Immigration and Nationality Act (“INA”), which gives the President the power to deny entry to “any aliens or class of aliens” whose entry would be “detrimental to the United States.” In Trump v. Hawaii, 138 S. Ct. 2392 (2018), the Supreme Court found that the president’s use of section 212(f) was not inconsistent with the complex statutory scheme Congress had elaborated over the years to screen potential immigrants, including for national security risks.

Under the “take care” clause of the U.S. Constitution, the President has the authority to execute the laws of the U.S. and, therefore, direct the operations of all of the federal departments and agencies involved in the implementation of all aspects of immigration law, including the Department of Homeland Security (“DHS”). Nevertheless, the Supreme Court’s holding in Trump v. Hawaii represents an extremely broad view of Congress’ delegation of power. It appears to open the door to an expansive use of executive power to shape our immigration laws.

President Biden has already announced a sweeping immigration reform bill, which, if enacted, will provide a pathway to legal status for most of the estimated 11 million undocumented immigrants currently living in the United States. Unless Senate Rule XXII  –  requiring a cloture of three-fifths of all senators “duly chosen and sworn” (usually sixty) to end debate  –  is amended  –  which itself requires the vote of “two-thirds of the Senators present and voting”  –  the bill will need to receive the votes of at least nine Republicans in the Senate to pass by the necessary majority. This will not happen overnight.

So what can the Biden administration do right now to shape immigration policy?

DACA

Former President Obama used his presidential powers to implement Deferred Action for Childhood Arrivals. (“DACA”). DACA derives from the Immigration and Nationality Act, which gives the Attorney General discretion to parole into the United States temporarily “under conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any individual applying for admission to the United States.” INA § 212(d)(5)(A).

On January 20, 2021, President Biden issued a series of executive actions on several immigration policies and programs, including directing the Secretary of Homeland Security to take appropriate action to preserve and fortify DACA, consistent with applicable law. In other words, DACA is back.

DACA eligibility, however, is quite narrow. In order to request DACA, the applicant must:

• Be at least 15 years old at the time of filing his or her request (if currently in removal proceedings, or has a final order of removal or voluntary departure, can request DACA while under the age of 15);
• Have come to the United States before his or her 16th birthday;
• Have continuously resided in the United States since June 15, 2007 to the present time, and have been physically in the U.S., undocumented, and under age 31 as of June 15, 2012;
• Either be in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or be an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
• Not have been convicted (as an adult) of a felony, significant misdemeanor, or three or more other misdemeanors, and must not pose a threat to national security or public safety.

Parents of U.S. citizens and residents are not protected under DACA.

DAPA

In order to protect parents of U.S. citizens and residents, many of whom have been residing in the United States for decades, President Biden could direct the current DHS Secretary to implement Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”). A November 20, 2014 memorandum from Obama era DHS Secretary Jeh Johnson created the program known as DAPA. DAPA would have offered deferred action to parents of U.S. citizens or lawful permanent residents who were unlawfully present in the United States. The DAPA memorandum also would have expanded the DACA program by removing the 30-year age cap, making the deferred-action grants last for 3 years instead of 2, and requiring that an alien need only have been present in the United States since January 1, 2010 to be eligible. However, on June 15, 2017, Trump era DHS Secretary John Kelly signed a memorandum rescinding DAPA, including its expansion of DACA, but leaving the original DACA program in place.

If restored by Biden, the November 20, 2014 DAPA memorandum would require that a DAPA applicant:

• Be the parent of a U.S. citizen or lawful permanent resident and not have a lawful immigration status
• Have continuously lived in the U.S. since January 1, 2010.
• Have been present in the U.S. and not have a lawful immigration status on November 20, 2014 (entered the U.S. without papers, or, if entered lawfully, lawful status must have expired before November 20, 2014).
• Have not been convicted of certain criminal offenses  –  see DACA above.

Biden has not promised specifically to reinstate DAPA, but has promised to “explore all legal options to protect . . . families from inhumane separation.” DAPA should be considered one of those legal options.

TPS

Temporary Protected Status (“TPS”) is an immigration status given to nationals of certain countries temporarily for humanitarian reasons. It provides relief from deportation for these foreign nationals who were physically present in the U.S. during times of catastrophic events in their country, such as an ongoing armed conflict, an environmental disaster, or an epidemic. To be eligible, individuals must be physically present in the U.S. on the date on which TPS is designated for their country of origin, and must have continuously resided in the U.S. since that date. Nationals of that country who are granted TPS will be protected from deportation and permitted to remain legally in the U.S. for a certain period of time, and will receive employment authorization.

The U.S. currently provides TPS to over 400,000 foreign nationals.

The requirements for Temporary Protected Status are relatively straightforward. To qualify for protection, the applicant must meet the following requirements:

• National of a country that was designated for TPS;
• Continuous presence in U.S. since the date required for nationals of that country;
• Registered and/or re-registered on time, or eligible to late-register;
• Admissible (not inadmissible for crimes);
• Not convicted of a felony or two or more misdemeanors; and
• Not barred from “withholding of removal” (has not persecuted others, not convicted of a “particularly serious crime”).

The most confusing aspect of TPS is understanding which countries are covered, the continuous presence date required, and the expiration date and/or extension date for each country. Ongoing litigation in Ramos v. Nielsen, 336 F. Supp. 3d 1075 (N.D. Cal. 2018), rev’d sub nom. Ramos v. Wolf, 975 F.3d 872 (9th Cir. 2020) affects the expiration dates for El Salvador, Honduras, Nepal, Nicaragua, and Sudan, while ongoing litigation in Saget v. Trump, No. 18-cv-01599 (E.D.N.Y. Apr. 11, 2019), affects the expiration date for Haiti.

Here is a chart of the countries currently designated for TPS:

At the very least, President Biden should redesignate El Salvador, Nicaragua and Honduras for TPS protections. Haiti, which has yet to recover from the aftermath of the devastating earthquake that rocked the country eleven years ago, appears to merit redesignation. A new designation for Guatemala, which was hit by two hurricanes late last year, would also be in order.

These actions  –  expansion of the DACA program, implementation of the DAPA program, and expansion and extension of TPS protections  –  are three things President Biden can do to help immigrants RIGHT NOW.

Carlo Brooks