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What does an immigration attorney hope to see from the Biden Administration?

Erin Schaff/Pool via ABC News

This inauguration day heralds the beginning of a new era — one in which immigration professionals hope signals a return to stability and humanity. We spoke with Lead Immigration Attorney Belinda Liu about what she saw on the ground during the Trump Administration, and how she feels about the coming changes under the Biden Administration.

This interview has been edited and condensed for clarity.

What were the biggest challenges that you as an immigration attorney experienced under the Trump administration?

There are so many immigration policies under the Trump administration that have been widely discussed in the media — for their cruelty, haphazardness, and even counter-productivity — but one effect that I feel has not gotten as much attention is the profound uncertainty that now shrouds all immigration casework. The last four years under the Trump administration have marked a period of relentless upheaval in immigration law, during which regulations and policies changed constantly, and often with little to no notice. I am not the first to say that immigration lawyering in the Trump era has been like playing a demoralizing and clearly rigged game of whack-a-mole.

For example, this past December, I was preparing for an asylum hearing scheduled for early February, with pretrial filings due mid-January. The day before Christmas Eve, the government agency that runs the immigration courts silently pushed up the deadline for those filings by 15 days. This was without any fanfare — no press releases, practice alerts, or even a tweet about this change. This policy change comprised one line buried in a 272-page online document. I was already out for the holidays when this change occurred. By the time I got back to the office on December 28th, I learned via a very confusing email thread with other local immigration attorneys that I had three days to file all our documents under the new deadline — hundreds of pages in total. I immediately contacted the immigration judge’s chambers and was told that he would be enforcing the new rule.

This may sound like just a minor procedural change, but for my clients, it meant a new year filled with anxiety and fear over whether the indulgence of allowing themselves and their friends and family (i.e., witnesses) to relax during the holiday season had doomed their chances of winning asylum. To make matters even more confusing, two weeks later the government issued a press release announcing a new comprehensive immigration policy manual that still listed the old deadline instead of the new, earlier deadline for filings. It took a direct call with a top immigration court administrator to clarify that the earlier deadline is the one that attorneys and their clients must follow.

On top of that, this persistent uncertainty has impacted the trust that is so critical to our attorney-client relationships. With the rules changing so rapidly and substantively, sometimes the advice that was good on Monday is no longer good on Thursday. As you can imagine, this constant revision of advice tends to erode trust between immigration attorneys and their clients across the country, which of course can harm the clients’ cases.

What were some of the major challenges your clients faced?

The expansion of inadmissibility under the public charge rule caused our clients a lot of distress during an already very difficult year. The public charge rule enables the government to deny someone a green card if they are likely to become dependent on government assistance. It’s essentially a wealth test for immigrants.

While this rule has existed for a while in some form or another, the list of what benefits could make someone a public charge was relatively short. Under the new rule*, just using food stamps or accessing healthcare through Medicaid (Medi-Cal in California) can make someone a public charge. Because of this change in the public charge definition, immigrants who qualify for vital public services have been turning them down to protect their immigration options.

What this actually means for clients is often heartbreaking.

I had a client who was experiencing severe COVID-19 symptoms early last year. Because of the expanded public charge rule, she was too afraid to go to the hospital to receive care, even though I explained to her that doing so would not make her a public charge even under the new rule. She feared that if she went, it would be used against her in her green card application. As a terrifying alternative, the client explained that she and her family had gone out to visit unlicensed “nurses” in the community to purchase unspecified medications to treat their illness. Her entire household became very sick — likely with COVID-19 — for weeks. Thankfully, they have all recovered; but an undeniable and devastating consequence of the public charge rule in the middle of this public health crisis has been the rule’s chilling effect on immigrant families’ use of public benefits.

This specific example would not even result in a public charge finding under the new rule, but the fear and uncertainty generated by Trump-era policies have convinced people that utilizing any public benefits can and will be used against them.

What changes are you hoping to see in a Biden-Harris administration regarding immigration policy? What would be most impactful to your work and your clients?

Historically, the cornerstone of American immigration policy was family unity. Over the past four years, the Trump administration has clearly had other priorities. I am hopeful that under the new administration, family reunification will return to precedence as Biden begins the work of repairing and strengthening our immigration policy.

Unfortunately, it’s not always so simple. While devastating policies like family separation at the border will likely be rolled back, declaring an end to a program does not immediately negate its effects. Who knows how long it will take to successfully reunite the parents and children ripped from one another at the border? And how much longer it will take for those parents and children to recover from the profound trauma of their separation and detention? Trump-era policies will likely continue to impact people’s behavior for years to come. That does not mean we should be without hope, but it will take serious time and investment to develop the infrastructure needed to remediate the effects of these policies.

Is there anything that the Biden-Harris administration has announced that you are especially excited about?

I’m particularly excited about the plan to create a pathway to citizenship for DACA recipients and people with Temporary Protected Status, mostly because this will help so many of our clients who have built full lives for themselves here and consider the U.S. to be their home.

Temporary Protected Status (“TPS”) is a temporary status provided to nationals of certain designated countries experiencing an ongoing armed conflict, environmental disaster, or other extraordinary but temporary conditions. TPS recipients are legally permitted to stay and work in the U.S., where they raise their families and pay taxes, but this temporary permission can be revoked once the U.S. government decides that a country is no longer in a state of emergency. At that point, people on TPS who may have been living and working legally in the U.S. for 20 years or more could be forced to uproot their lives and return to a country where they no longer have established roots.

The Biden administration wants to change this and create a way for people with TPS to get a green card and eventually citizenship.

The same issue exists for DACA. Under the Obama administration, DACA protected recipients from deportation, but provided no path towards citizenship; the Trump administration tried to discard DACA altogether but was rebuffed by the Supreme Court. The Biden administration is hoping to take DACA protections one step further by creating a pathway to U.S. citizenship for many who have always called the U.S. home.

*The new rule has been partially blocked and continues to be heavily litigated in the courts. For a timeline of the legal challenges to the new public charge rule, see https://www.ilrc.org/sites/default/files/resources/2020.01.08_public_charge_timeline.pdf

We are a San Francisco-based non-profit pioneering the country’s first system of universal access to legal help. Learn more about our work at opendoorlegal.org

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