Legislative Priorities 2020-21
The Immigration Equality Action Fund has a robust legislative advocacy program to make lasting changes in our immigration system. Because we serve more LGBTQ immigrants than any other organization, we spot patterns and trends that no one else sees. Our experience with the system fuels our legislative advocacy initiatives and priorities, including:
Repeal the filing deadline for asylum – Currently, asylum seekers must file for asylum within one year of their arrival in the United States. While there are limited exceptions to this rule, proving an exception presents a great burden on refugees seeking safe haven. For those who cannot meet the burden of the exception, asylum is denied to otherwise eligible refugees. Missing the deadline is the number one reason why Immigration Equality clients are deemed ineligible for asylum. The deadline serves no legitimate government purpose and results in the denial of otherwise meritorious claims. It should be repealed altogether.
Fund the U.S. Citizenship and Immigration Services (USCIS) asylum and humanitarian programs – USCIS is funded by the fees they collect. However, regular processing fees are insufficient to pay for the resources necessary to process applications for humanitarian relief such as asylum, U visas (for victims of crimes who help law enforcement), T visas (for victims of human trafficking who help law enforcement), VAWA (for victims of domestic violence), among others. At the same time, charging a fee for humanitarian relief is inappropriate where many refugees and trauma survivors are financially destitute and would be unable to pay even a modest amount.
Clarify no fee for asylum applications – For the first time ever, the Trump administration has announced a $50 fee to file for asylum. Filing for asylum should be a right, not a privilege for those who can afford it.
Establish parole in place as an alternative to consular processing – Currently, immigrants in the U.S. who have not been inspected or paroled must consular process. However, for many LGBTQ and HIV-positive immigrants, consular processing would compromise their safety or health. If an immigrant can demonstrate that consular processing is not appropriate, they should be eligible to apply for parole in place.
Recognize permanent partners – For many immigrants in nations that do not recognize marriage equality, the U.S. should recognize permanent partnerships for immigration purposes.
Eliminate caps on green cards – If someone is eligible for permanent residence, they should be allowed to receive that status immediately. Some immigrants wait in a green card queue for 20 years! If caps persist, at the very least unused green cards in one category should be allocated to others.
Create a mechanism for immigrants to apply for non-Legal Permanent Resident cancellation of removal affirmatively through the U.S. Citizenship and Immigration Services (USCIS) – Currently, the Immigration and Nationality Act (INA) allows an immigrant to apply for Non-LPR Cancellation only if they are in removal proceedings. However, this inefficiency clogs up both the asylum offices and the courts. Creating an affirmative process would increase judicial economy and reduce the burden on asylum officers.
Designate immigration courts as Article One courts – Immigration courts decide questions of family unity, human rights violations, and torture. The courts must be allowed to make independent decisions and to be funded sufficiently to do so. Housing the immigration courts and the Board of Immigration Appeals (BIA) in the Justice Department over politicizes the immigration courts. Reclassifying the courts as Article One courts would ensure their independence.
Repeal expedited removal – The United States should prioritize due process over reckless, speedy deportations. Decreasing or eliminating backlogs in immigration courts would be a much more humane means to expedite removal, where appropriate.
Simplify criminal removability – Case law from various appeals courts interprets the INA in a way that creates a complicated analysis of when a person’s criminal conviction results in removability, often leading to ludicrous results. A simple to understand, nationally applicable rule would standardize the process, save judicial economy, and result in more equitable adjudications. Crimes of survival should never result in removability.
Designate LGBTQ and HIV-positive people as presumptively not detainable – LGBTQ people are 97 times more likely than the general population to be sexually assaulted in immigration detention facilities. At the same time, Immigration and Customs Enforcement (ICE) has historically provided inconsistent or inadequate healthcare to those living with HIV. People who are LGBTQ or living with HIV should be designated as a “vulnerable population” and presumptively not detainable.
Eliminate mandatory detention – Currently, the INA mandates the detention of applicants for admission who are in removal proceedings, subject to parole at ICE’s discretion. Similarly, immigrants with certain criminal convictions are deemed to be categorically ineligible for release from detention. Such rules strip immigration judges of their ability to make equitable decisions, and have absurd results. For example, a 19-year-old with two shoplifting convictions of under $10 would be deemed to be a mandatory detainee. Release should always be an option.
Define “custody” broadly – Current case law from the BIA defines custody very narrowly. “Custody” should be defined to include alternative to detention programs, like release on one’s own recognizance, supervised release, community case management programs, or electronic monitoring devises.
Reform immigration bond – Currently, the INA sets the minimum bond an immigration judge may issue at $1,500, but it sets no upper limit on bond amounts. However, for an indigent person, even $1,500 is much too high a bond. (And, some judges set bonds of $50,000 for immigrants without any means.) At the same time, ICE has great discretion in how it sets a bond, which it frequently abuses. For example, ICE agents at one facility in Louisiana denied all bond requests for all immigrants regardless of their merits. When a federal judge ordered ICE to reform its system, it ignored the order and continued to deny all bonds. Bonds are an unnecessary racket. Immigrants should be paroled, and not subject to a bond at all. Almost all paroled immigrants appear for their immigration hearings (and are therefore not flight risks) and almost none are convicted of serious or violent crimes after release (and are therefore not a danger to their community). Bonds, if ever issued, should be rare and only in extraordinary circumstances.
Eliminate privately run immigration detention – Thousands of immigrants are detained in facilities owned and operated by for-profit corporations. However, private entities are motivated to increase profits by reducing costs. They do so by reducing staffing, eliminating programming, and cutting basic necessities. Contract quotas also create incentives for ICE officials to deny parole to immigrants otherwise eligible for release. This substantially compromises the health and safety of detained people. In fact, in announcing why it had decided to eliminate its private contracts, the Bureau of Prisons noted that private prisons “compared poorly” to those run by the federal government. Congress should prohibit ICE from contracting with private detention facilities.
Eliminate the three- and 10-year bars – While the INA’s current bans on re-entry for unlawful presence were intended to deter people from accruing unlawful presence, they do not fulfill that function. Instead, they trap long-term undocumented immigrants inside the United States and dissuade them from voluntarily leaving the country. Removing the bans would encourage undocumented people to leave the U.S. in order to regularize their status. This would substantially reduce the number of undocumented people living in the United States.
Institute an entry without inspection (EWI) waiver – Whether the three- and 10-year re-entry ban continues or not, Congress should institute an EWI waiver (and a waiver system for similar immigration violations) for those who are otherwise eligible for permanent residence in the United States. As has been enacted in the past, individuals with immigration violations could be asked to pay a fine to overcome any civil violation. This would substantially reduce the number of undocumented people living in the United States.
Incorporate the following bills, some of which track with the recommendations above:
DREAM Act (Graham/Durbin) – This bill allows a path to citizenship to young people, known as DREAMers, who have lived in America since they were children, built their lives here, and are American in every way except for their immigration status. The bill would allow these young people to earn lawful permanent residence and eventually American citizenship if, among other requirements, they pursue higher education, work, or serve in the military. They also are required to not have committed crimes or pose a threat to our country.
Refugee Protection Act (Leahy/Lofgren) – This bill is a comprehensive blueprint for restoring and reinvigorating our refugee and asylum systems. It expands protections for refugees, restores due process and dignity for asylum seekers, and expands protections for immigrants cooperating with law enforcement and foreign nationals assisting U.S. troops.
Dignity for Detained Immigrants Act (Jayapal/Smith) – This bill would end the use of mandatory detention of certain vulnerable immigrants (e.g. LGBTQ people) and require the Department of Homeland Security (DHS) to demonstrate a legitimate reason to deport them within 48 hours of detention. It also ends the use of private and county prisons for immigration detention over three years. Finally, it requires DHS to meet the American Bar Association’s Civil Immigration Detention Standards, including conducting random checks of all detention facilities and investigating all deaths in DHS custody within 90 days.
Family Reunification Act (Espaillat) – This bill will reopen this critical path to legal status, shielding immigrants from the overly punitive three- and 10-year bars, by reopening a long-expired program that allowed individuals with family or employment ties in the United States unlawfully to apply to adjust their status without having to return to their country of origin. Critically, the bill would also shield from removal proceedings any individual who has an application pending with U.S. Customs and Immigration Services or has had an application approved by USCIS but is waiting for a visa to become available.
Protecting Sensitive Locations Act (Blumenthal) – The bill will prohibit immigration enforcement, including arrests, interviews, searches, and surveillance at “sensitive locations” that include areas such as medical or health care facilities, public and private schools, places of worship, courthouses, Department of Motor Vehicles offices, and locations that provide emergency services.
Access to Counsel Act (Jayapal) – This bill ensures that U.S. citizens, green card holders and other individuals with legal status are able to consult with an attorney to help them understand their rights when detained by Customs and Border Protection (CBP) at borders and ports-of-entry.
The Federal Immigrant Release for Safety and Security Together (FIRST) Act (Jayapal) – This bill will move immigrants out of detention and halt immigration enforcement against individuals not deemed a significant public safety risk during this coronavirus public health emergency and future health emergencies. Individuals moved out of immigration detention would not be forced to return to detention once the public health emergency has lifted unless an individualized determination is made that the person is a threat to public safety or alternatives to detention are insufficient to guarantee attendance at immigration proceedings.
The Fair Proceedings ACT (Gillibrand) – The bill will guarantee legal counsel during removal proceedings for children, individuals with disabilities, victims of abuse, torture, and violence, and those at or below 200% of the federal poverty level. This law, if enacted, would not only guarantee that the government ensure access to counsel, but it would also appoint or provide an attorney for these vulnerable individuals. The funding for legal representation would come from a nominal increase in fees collected from those who apply for immigration benefits.
Justice is Not for Sale Act (Grijalva) – This bill will prohibit federal, state, and local governments from contracting with private prison companies and end immigrant family detention. Additionally, the bill prevents companies from overcharging inmates and their families for services like banking and phone calls and increases oversight of immigrant detention facilities to ensure humane treatment.
Equality Act (Cicilline) – This is comprehensive civil rights legislation that prohibits discrimination against members of the LGBTQ community in the areas of employment, education, credit, jury service, federal funding, housing, and public accommodations.
Reuniting Families Act (Chu) – The bill will improve the family reunification process by reducing visa backlogs to provide humane and timely reunifications, providing equality for LGBTQ families, increasing the number of diversity visas, and improving our overall immigration system. It eliminates discrimination facing LGBTQ families throughout immigration laws, including making sure that all children born to U.S. citizen parents have aquired citizenship regardless of a biological relationship. Also, it increases the government’s discretion to keep families together and waive grounds of inadmissibility or deportability for humanitarian purposes, family unity, or the public interest.