By David M. Sperling, Esq.

One of the first immigration priorities of the Biden Administration will be the continued protection of the approximately 650,000 DACA beneficiaries — those immigrants who came to the United States as children — as well as the approximately 300,000 TPS beneficiaries whose status will be expire early next month.

A very hopeful sign is the nomination of Alejandro Mayorkas to head of the Department of Homeland Security. Mayorkas, who served as deputy secretary of DHS under the Obama administration, is himself a refugee from Cuba who came to the United States as a young child and helped design the DACA program.

   There are certain programs like Deferred Action for Child Arrivals and Temporary Protected Status that Biden can implement by executive action — without the consent of a polarized Congress that will require unprecedented bipartisanship to pass any major immigration reform. Through executive action Biden is expected to remove country-base travel bans affected some majority-Muslim countries, restore more discretion to Immigration Judges, and remove other highly restrictions and mean-spirited policies implemented during the Trump Administration.  He is also expected to expand the country’s refugee cap from a miserly 15,000 under Trump to a record 125,000 during the next fiscal year.

    Other stringent measures adopted by the Trump administration may be here to stay. In light of the pandemic, Trump’s policy requiring asylum applicants to remain outside the country is likely to remain at least for the foreseeable future. Also, we can expect the border wall to remain, though no new construction will be approved.

     There are several other actions that Biden could take, short of any comprehensive immigration reform that would greatly improve the lives of millions of undocumented immigrants.  Most importantly, he could restore wide-ranging discretion to government trial attorneys and judges to administratively close hundreds of thousands of deportation cases for immigrants who have clean records and deep roots in the United States. 

    There are currently more than 1,270,000 immigration cases on backlog in Immigration Courts across the country — more than twice the backlog from four years ago. Certainly the pandemic grossly inflated the backlog since Immigration Court for non-detainees has been closed since the March lockdown.

     Under Obama, it was relatively easy to administratively close deportation cases of these immigrants; under Trump it is literally impossible. Unauthorized immigrants with 10 or more years in the United States, no criminal record, providing essential work and paying taxes, with U.S Citizenship children, were often ordered deported because judges were not authorized to administratively close cases for humanitarian reasons.

   Using the “power of the pen,” Biden could also expand the category of immigrants eligible for DACA, definitely including some 56,000 that were prevented from registering when Trump halted the program in 2017. Eligibility is currently limited to immigrants who arrived in the United States prior to June 15, 2007. Biden could certainly expand the eligibility requirements for both DACA and TPS.

 Of course the ultimate goal for DACA and TPS beneficiaries is a path to U.S. Citizenship.  For this and other immigration programs that lead to permanent status, we will require the consensus of a highly divided Congress. In any event, there is now much room for hope in what had once been a very bleak scenario for millions of immigrants in the United States.

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    David Sperling is an immigration attorney on Long Island, with offices in Central Islip, Riverhead, Hempstead and Huntington Station. He and his staff have handled thousands of DACA and TPS cases, starting in 1999.