Legislative Priorities
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 It should be repealed altogether.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. In 2023, the asylum office backlog alone in the United States grew to more than 1,000,000 cases. The backlog for immigration courts is more than twice that number.
Establish parole in place as an alternative to consular processing – Currently, many immigrants in the U.S. who have not been inspected or paroled must leave the United States to process their paperwork at a consulate abroad. 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 all 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 overly 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 – Various appeals courts have interpreted 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 subject to mandatory detention. 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. Nearly every single paroled immigrant 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.