By Stacy Kern-Scheerer, Director of the William & Mary Law School Immigration Clinic
On January 20th, the Biden Administration released their ambitious and comprehensive plan for immigration law and policy. The plan contains numerous proposals addressing many facets and spaces of immigration law–too many to discuss in one blog post. Below we highlight three aspects of the proposal that, if enacted, would certainly assist DACA recipients, survivors of serious crimes, and those seeking asylum in Hampton Roads, all of whom we serve in the Clinic.
- DACA Recipients and the Biden Administration’s Plan
Immigrants in Hampton Roads who currently have Deferred Action for Childhood Arrivals (DACA) would benefit greatly from the Biden Administration’s Plan. Deferred Action for Childhood Arrivals (DACA) is a program created by President Obama in 2012 to offer work authorization and protection from deportation to certain qualifying noncitizens in the United States. DACA recipients are generally young people who were brought to the United States as children and for whom the United States is the only home they have ever known. Without DACA, these young people would otherwise be undocumented, vulnerable to deportation, and unable to work in the United States to support themselves, their families, and – in many instances – fund their higher education. A DACA recipient must apply to renew their DACA status every two years, which is a costly and constant reminder of the instability of their status and the system. Many students across Virginia, including at William & Mary, who are enrolled as undergraduates, graduates, or law students, are beneficiaries of the DACA program.
Under the Biden Administration’s plan, DACA recipients would be put on a fast track to lawful permanent residence status, which is commonly referred to as having a “green card.” This change is particularly significant because individuals with lawful permanent residence status may work in the United States, travel, and apply for citizenship after a certain number of years. Such a plan would provide security and stability that the DACA program lacks, and that DACA recipients deserve.
- Survivors of Serious Crimes and the Biden Administration’s Plan
Survivors of serious crimes would also benefit under the Biden Administration’s plan. Immigrant survivors of certain serious crimes in the United States who have helped law enforcement in the investigation or prosecution of that crime can apply for a U Visa. A U Visa permits the survivor to stay and work legally in the United States and provides a path to apply for a green card after three years, which can lead to citizenship. The U Visa is an important humanitarian component of immigration law established to protect communities and encourage victims of serious crimes to seek necessary help from law enforcement in the wake of violence or harm, without fear that they will suffer negative immigration consequences for doing so. However, under the Immigration and Nationality Act, there are only 10,000 U Visas available annually, far below the number of immigrant survivors of crime who qualify for a U Visa every year. This incongruence has led to a backlog in the system of more than 100,000 cases. Currently, survivors of crime must wait four or five years after their application is submitted to receive a decision on their application, and may be vulnerable to deportation and economic exploitation during the long wait. Many U Visa applicants and recipients, including here in Hampton Roads, are survivors of domestic violence, who are trying to find safety and security after leaving abusive situations.
The Biden Administration’s plan would increase the number of U Visas available each year from 10,000 to 30,000. This increase is a critical step to reducing the years of wait and uncertainty for survivors of crime, providing them safety, economic independence, and stability in the United States.
- Asylum seekers and the Biden Administration’s Plan
The Biden Administration’s plan also addresses challenges faced by asylum seekers, including those we serve in our region of Virginia. While the proposal would not change what asylum seekers must prove in order to receive asylum, if enacted, it would help many to overcome a major barrier to asylum. Currently, asylum seekers must apply for asylum within one year of arriving in the United States. If they do not, they must show that they were subject to “extraordinary circumstances” that justify why they did not apply within one year of arrival.
Unfortunately, not understanding the “one-year filing deadline” generally does not qualify as an extraordinary circumstance. Moreover, even when asylum seekers understand they need to submit a petition within a year of arrival–and desperately want to make their asylum claim to the Government in hopes of securing refuge in the United States–many asylum seekers do not know how to begin such a complex process without the assistance of an attorney. Thus, they miss their one-year filing deadline while trying to find low cost or pro bono representation. Not being able to find or afford representation also does not generally quality as an extraordinary circumstance.
Applying for asylum is a difficult process made significantly more complicated by language and economic barriers faced by many immigrants. Thus, many people who have suffered severe harm in their home countries, who fear returning to their home country, and who – on the merits – may qualify for asylum, are nonetheless rendered ineligible for the protections of asylum. At the Clinic, we see this issue often in Hampton Roads because there is a lack of immigration organizations in the region that are able to educate the community about the one-year filing deadline and to provide pro bono representation in the preparation of asylum petitions and cases. The Clinic attorneys and students work hard to address this gap in access to representation.
The Biden Administration’s plan would eliminate the one-year filing deadline that significantly affects immigrants who live in areas, such as Hampton Roads, that do not have a robust network of non-profit/pro bono immigration advocacy organizations. Under the Biden plan, the government would be looking solely at the circumstances that caused someone to flee their country and determine whether or not those circumstances merit a grant of asylum, rather than foreclosing safety and protection because the one-year mark had passed.
From my decade working on legislation on Capitol Hill, I deeply understand and appreciate that the way any proposal looks coming in the door is never the way it looks when headed back down Pennsylvania Avenue for the President’s signature, assuming it survives the complications of the legislative process. We are at the beginning of what could be a long road and debate on the future of immigration law and policy in our country. Although there are many unknowns and challenges ahead, I am hopeful for what these proposals signal and what they could mean for underserved immigrants in Hampton Roads. The Clinic and our students stand ready to help immigrants in our area navigate any changes, and to advocate for their interests in the years to come.