Additional Changes to Protect LGBTQ and HIV-Positive People
a. Survival Crimes Should Never Warrant Detention or Removal Proceedings – Because of their sexual orientation and gender identity, many LGBTQ people are refused access to education, to family or community support, and to formal employment. Often, the worst perpetrators of LGBTQ disenfranchisement are the parents or family of an LGBTQ person. This happens both abroad and in the United States.1 With no access to the resources necessary to survive, and exclusion from the formal economy, some LGBTQ people are forced to resort to crimes of survival to meet their basic needs. Minor crimes, such as sex-work, petty theft, or self-medication should be treated with great leniency when DHS or the immigration courts are considering (1) whether to put someone in removal proceedings, (2) whether to detain someone, (3) whether to grant relief, or (4) whether to remove a non-citizen.
b. Prosecutorial/Judicial Discretion Must Be Reviewed and Revised
i. The Obama administration created a tiered prosecutorial discretion system identifying people DHS should not prioritize for removal. The Trump administration made everyone a priority. The Biden administration should immediately review and revamp current prosecutorial priorities. And, for those deemed not a priority, it should instruct DHS to move for termination of proceedings.2 This would reduce the backlog of immigration court proceedings dramatically.
ii. The Trump administration suspended the ability of immigration judges to handle their own dockets. This has further ballooned the already daunting backlog in immigration court. The Board of Immigration Appeals (BIA) case Castro-Tum should be rescinded. Instead, to preserve judicial economy, a judge should be able, in their discretion, to administratively close proceedings for good cause. For example, if someone is able to adjust through a spouse, but entered without inspection, that case should be administratively closed pending the adjudication of an I-601(a) waiver. If a status-enabling application with U.S. Citizenship and Immigration Services (USCIS) is granted, a judge should have the discretion to proceed with adjudication or, if the parties agree, to terminate proceedings so that a non-citizen may seek legal status through USCIS or the State Department.
iii. As an alternative to section ii. above, DHS should adjudicate pending applications like an I-601(a) waiver even if someone is in active removal proceedings. If a status-enabling application with USCIS is granted, a judge should have the discretion to proceed with adjudication or, if the parties agree, to terminate proceedings so that a non-citizen may seek legal status through USCIS or the State Department.
iv. Currently, judges must meet certain case completion quotas in order to receive a positive job performance review. This is nonsensical. This policy rewards judges who deport immigrants en mass without due process and penalizes those who adhere to the judicial process. Adjudication quotas, like arrest quotas, corrupt justice. End the quotas.
v. Applicants for cancellation should have a mechanism (as they did in the past) to petition DHS for a notice to appear in court. DHS, in its discretion, could grant or deny that request. For immigrants with a colorable claim of cancellation, DHS should grant the request.
1. Griffith, D. (Jan. 22, 2019). LGBTQ Youth Are at Greater Risk of Homelessness and Incarceration, Prison Policy Initiative, available at: https://www.prisonpolicy.org/blog/2019/01/22/lgbtq_youth (noting that 40% of all homeless youth in the United States identify as LGBTQ people).
2. Administrative closure is not a sufficient solution as doing so does not actually take a case off of a judge’s calendar. As such, it never reduces the caseload backlog. A respondent should have the opportunity to oppose a motion to terminate if they wish to remain in removal proceedings. But, absent such opposition, immigration judges should terminate cases deemed not to be a high priority.