Originally Published in The Hill
OPINION by Gregory Chen - November 11, 2020
By the end of President Trump’s term, America will have endured four years of an aggressive, xenophobic campaign to exclude and expel immigrants. Spanning the entire immigration system, the Trump administration has implemented an estimated 900 federal immigration acts and policies that have made it nearly impossible for asylum seekers to receive humanitarian protection. It is much harder for families to reunify, for people to become citizens, and for businesses to hire foreign workers. None of this is good for our country or the values upon which it was founded.
In newly published recommendations, the American Immigration Lawyers Association calls upon newly elected President Biden to reverse the Trump administration’s destructive course and restore America as a nation that welcomes immigrants. The Biden campaign has already published a comprehensive plan that pledges executive actions and legislation.
However, a striking gap in the plan is the bare mention of the immigration courts or U.S. Citizenship and Immigration Services (USCIS), two agencies that have been severely weakened by President Trump yet are instrumental to the immigration system. Combined, they decide as many as five million immigration cases every year.
Americans expect the judicial system to be impartial and governed by the rule of law, but the Trump administration has been transforming the immigration courts into conveyor belts for deportation. As just one measure, their average asylum grant rates dropped by 40 percent during President Trump’s single term compared to the Bush and Obama administrations' grant rate.
Political interference has infected the selection of judges. While the confirmation of Judge Coney Barrett to the Supreme Court is all over the news, little attention has been paid to the hundreds of immigration judges Trump has appointed — many of whom have a prosecutorial bias. What’s worse, the president has installed politically motivated court administrators who consolidated power to override the judges' decisions. To push judges to move faster, the administration also began rating judges’ performance using numeric quotas — as if they were working on an assembly line, not deciding cases with lives in the balance.
Ironically, these so-called streamlining efforts have utterly failed to reduce the court backlog, which doubled to over 1.2 million during Trump’s term. The Biden Campaign has called for increasing the number of judges to address the backlog, but just adding more judges is not enough to fix the system. A future Biden administration must restore independence and fairness to the courts — a tall order that will require undoing harmful policies while rebuilding institutions that protect due process and the rule of law.
One way to make court proceedings fairer and more efficient is to ensure legal counsel for every person who cannot afford it. Asylum seekers, families and other vulnerable individuals should never have to face complex deportation proceedings unaided and alone, but the U.S. judicial system still does not guarantee counsel. To remedy this, a Biden administration should announce a universal representation initiative and re-establish Obama-era programs, including the Office of Access to Justice.
As vital as the courts are to a fair resolution of immigration cases, USCIS handles even more. Yet again, the Trump administration has turned an agency on its head with politically motivated policies that are inefficient and counterproductive. Indeed, new USCIS policies are severely delaying case decisions. From 2014 to 2019, processing times have doubled, meaning children, spouses, workers and others are waiting many more months — often more than a year — for approvals.
Among the more non-sensical and inimical USCIS policies is the new “blank space” rule requiring denial of immigration applications with any space left blank — even when the question being asked does not apply. AILA uncovered nearly 200 asylum applications that were rejected after space was left blank or was completed with “none” or “not applicable” rather than the preferred term “N/A.” It is inexcusable that the agency charged with protecting asylum seekers rejects them for such trivial — indeed immaterial — omissions as leaving a space blank, especially when denial could result in deportation to life-threatening circumstances.
The extreme makeover of USCIS has made it unacceptably enforcement-minded. It attempted to make an appalling transfer of $200 million to ICE to hire enforcement officers. This dramatic shift and the massive inefficiencies drove USCIS into a financial crisis this summer. To fix the legal immigration system, a Biden administration must return USCIS to its mission to provide prompt, consistent, and fair adjudications to its customers.
By marshaling resources and political will, President Biden can swiftly restore USCIS and the courts and ensure they become the highly effective immigration agencies that America so urgently needs. His campaign website has proclaimed: “Immigration is essential to who we are as a nation, our core values, and our aspirations for our future.” With a roadmap in hand, the time has come to move toward that future.
Gregory Chen serves as senior director for government relations at the American Immigration Lawyers Association (AILA).