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Brief # 114 Immigration Policy

Biden’s Administration Proposes Sweeping New Immigration Law and  Ends  Separation of Children from Their Parents

By Linda F. Hersey

January 28, 2021

The zero-tolerance program that defined the Trump Administration’s policy on immigration – separating hundreds of immigrant children from their parents at the U.S.-Mexico border – is officially over.

Acting Attorney General Monty Wilkinson sent a letter  to all U.S. attorneys that rescinds the order, effectively erasing the policy that allowed for federally prosecuting undocumented parents and separating them from their children.

Although immigrants can still be deported if they do not have documents or protections to stay in the U.S., they typically are not charged in federal court and separated from their children. The Wilkinson letter – first reported by NBC News — encourages prosecutors to “use discretion” in prosecuting minor border offenses.

Although the Trump administration stopped separating families at the U.S.-Mexican border in 2018, after public outcry and negative publicity, the federal law had not been officially rescinded. This meant the law technically could be applied by federal prosecutors in court cases against families arriving in the U.S. illegally. That guidance is now gone from the criminal code.

President Joe Biden, meanwhile, has yet to sign an executive order for reuniting families separated from their children, as he pledged during his campaign. But the American Civil Liberties Union stated that the Wilkinson directive is a good first step to ending “criminal penalties for illegal entry.”

‘Rescinding the Zero-Tolerance Policy’

The letter by Wilkinson is titled the “Rescinding the Zero-Tolerance Policy for Offenses Under 8 USC 1235.” Wilkinson’s letter follows the Biden Administration’s proposals for sweeping immigration reforms that will require passage in Congress. Biden unveiled the proposals in his first day of office.

“The bill proposes changes to reimagine diverse areas of immigration from employment- and family-based immigration to asylum, refugee, and other humanitarian protections, as well as border security,” according to an article in the National Law Review.

Those reforms include a pathway to citizenship for 11 million undocumented immigrants, expanded refugee resettlement and more technology at the border for monitoring and surveillance.

Under the Biden Administration’s U.S. Citizens Act of 2021, the reforms:

  • Create a more efficient pathway to citizenship for so-called “dreamers,” millions of undocumented people who arrived in the U.S. as children. The bill would place them on a fast-track to citizenship. Up to 11 million immigrants could be affected.
  • Enable children from Central America to apply for refugee and asylum in their home countries, instead of traveling to the border on foot and often alone, placing them in danger of violence and exploitation.
  • Hire more immigration judges to handle a backlog of asylum cases.
  • Establish new language in immigration laws that changes the term “alien” to “noncitizen.” The bill pledges to improve the tone of the immigration system by “restor[ing” humanity and American values to our immigration system,” according to the National Law Review.
  • Prohibit presidential immigration bans based on religion.

Migrant Children Detained in Metal Cages

Coupled with the Biden immigration reform package, the Wilkinson directive formally ends a disturbing chapter in U.S. immigration policy and punitive attitudes toward migrants by U.S. leadership.

Under Trump, 3,000 families were separated in 2017-2018 at the U.S.-Mexico border, with some children sent thousands of miles away to holding facilities in other states. The practice was abruptly halted, after photos were published of young children forcibly removed from their parents by border agents, and later detained in metal cages, made of fencing, at detention facilities referred to as “child prisons.”

Trump’s zero-tolerance policy enabled prosecutors to charge undocumented parents in federal court on misdemeanors, such as crossing the border illegally.

While advocates continue to work toward reuniting migrant children living in the U.S. with deported parents, largely in Central America, the parents of more than 600 children have yet to be found. Most of those children are now living with court-approved sponsors in the U.S.

The ACLU is arguing a class-action lawsuit seeking damages for parents and their children who were separated at the U.S. border.

Lee Gelernt, the lead ACLU attorney in the class action case, said that while Wilkinson’s letter is a start to ending “criminal penalties for illegal entry,” Congress needs to repeal laws that federally prosecuted parents for illegal entry, which allowed for border agents to separate families.

Engagement Resources

ACLUS’s Immigrants’ Rights Project works to expand and enforce the civil liberties and rights of immigrants.

U.S. Citizens’ Act of 2021: Fact Sheet outlines a sweeping immigration reform bill under the Biden Administration that would provide a pathway to citizenship for up to 11 million immigrants.

National Law Review examines Biden’s proposed immigration law changes under the U.S. Citizens’ Act of 2021.

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