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Restoration v. Transformation: What to Expect Early in the Biden Presidency

The results are in, and barring an aberration or an absurdity the former United States Vice President Joseph R. Biden, Jr. will be the forty-sixth president of the United States with United States Senator Kamala Harris as his Vice President of the United States. It’s still unclear what the United States Senate will look like in 2021, but, as the current President Donald J. Trump was able to do without any bill passed by the United States Congress, there are still plenty of items on the immigration-related agenda the President-Elect can address immediately once he’s in office and without the need for legislation, e.g.,

1. Restoring national guidance on prosecutorial discretion relating to placing someone in removal proceedings, administratively closing or terminating active removal proceedings, and executing outstanding removal orders;

2. Recognizing that gang-related and gender-related harm is not a “private crime” and therefore can form the basis for establishing the required nexus in asylum cases;

3. Extending availability of Temporary Protected Status for foreign nationals who will soon see such status expiring for them and allowing them to pursue adjustment ofstatus despite not having been granted what is traditionally considered to be valid nonimmigrant status;

4. Eliminating the threat of being in placed in removal proceedings for trying but failing to obtain VAWA adjustment of status, (domestic abuse) U nonimmigrant status, (victim of crime) or T nonimmigrant status (victim of human trafficking);

5. Protecting the ability for H-4 nonimmigrants to receive employment authorization; and

6. Speeding up adjudication times particularly for what immigration lawyers refer to as “clean cases,” i.e., cases without issues.

But is that enough? Did about seventy-five million voters who chose Biden over Trump really do so simply to put back things the way they were? Or did they want something more aspirational? Something that restored the promise of America? Something that once again would make this country the final destination for the best and the brightest, the persecuted yearners for freedom and truth, and the close family members of those whom legally already call this great country home? And what about those who are American in every way but on paper: the Dreamers? These are issues that need to be addressed even if they will be difficult to tackle without cooperation from the United States Congress. Just remember: DACA is not a permanent solution and could have easily been taken away by the Trump Administration if only it had done so in the procedurally correct manner.

Finally, there is the issue of the intersection of criminal law and immigration law and the impact of criminal convictions on immigration-related benefits. Too frequently foreign nationals are left in a position of not being aware that a criminal conviction will result in a loss of or ineligibility for an immigration benefit. Many times they are mistakenly led to believe that a conviction will be “safe” even if aware of the issue at the beginning. There are two concerns at the heart of this issue: (1) the higher likelihood of someone of color to be prosecuted for the same exact crime as one committed by someone who is not of color simply because of that person’s race and (2) the transactional nature of criminal-court proceedings.

It is hard to believe that any president can address adequately these concerns, but that does not mean a president shouldn’t try to address them and shouldn’t try to alleviate the byproducts of them: prolonged immigration-related detention of foreign nationals who were not able adequately to exercise their rights.

Talking to many foreign nationals who are detained in Immigration custody can provide the bases for many sitcom episodes premised on misunderstandings that in reality should have been easily resolved, but the machinery of the criminal-justice system works against logical resolutions even when state legislatures are increasingly trying to force it to work in favor of such resolutions. Instead, the criminal-justice system works to coerce immigrants to accept plea deals, thereby confessing to crimes regardless of whether they were actually committed so that they can avoid prolonged state custody awaiting trial only to find themselves in prolonged Immigration custody because of that “confession.”

I’ll close by leaving this excerpted quote from the 1944 United States Supreme Court decision Ashcraft v. Tennessee regarding coerced confessions to show that our goal should be actual justice and not simply a misrepresented appearance of it:

The Constitution of the United States stands as a bar against the conviction of any individual in an American court by means of a coerced confession. There have been, and are now, certain foreign nations with governments dedicated to an opposite policy: governments which convict individuals with testimony obtained by police organizations possessed of an unrestrained power to seize persons suspected of crimes against the state, hold them in secret custody, and wring from them confessions by physical or mental torture. So long as the Constitution remains the basic law of our Republic, America will not have that kind of government.