President Biden’s immigration bill is now available. In my first look at the bill, I was searching for provisions that would ease the massive problems facing immigration removal adjudication. There is desperate need for reform of the immigration courts, which adjudicate charges of removal brought by the government against non-citizens. The bill avoids major structural reform, but it would add more immigration judges and would provide for government funded counsel for some non-citizens. The bill’s reforms to substantive immigration law provide additional help.
The Biden bill would help the immigration courts because it would make immigration law less harsh. There are provisions in the bill that make fewer individuals eligible for removal or that give immigration judges more space to waive removal in individual cases. The nature of the substantive law applied in immigration court is linked to the existing problems in immigration adjudication. Even a robustly independent immigration judge still must be faithful to the law Congress supplies. If the law is too harsh, then the outcomes of removal hearings will continue to weigh too heavily towards removal in every case, no matter the equities.
In the mid-1990s, Congress expanded the grounds of removal, thereby making much larger numbers of non-citizens potentially subject to being charged as removable. There are several provisions in the Biden bill that would pull back on this expansion, as well as provisions that provide a pathway to legal status for many. These provisions would reduce the number of non-citizens who are eligible for removal. If fewer individuals are removable, then that should result in fewer cases filed in immigration court.
At the same time that Congress expanded the grounds of removal, Congress severely limited immigration judge discretion by curtailing the availability of relief from removal. As a result, it can be very difficult to argue equities in immigration court. Rather, the pressure for equitable action has shifted to the decision to initiate removal proceedings in the first place. As a result, agency enforcement officials are the actors holding the greatest discretionary power to dispense equity, while immigration judges—who ostensibly are the system’s independent arbiters—have little discretionary power. Obtaining discretion from agency enforcement officials often is not transparent, with no clear application process or clear decision-making standards.
Under the Biden bill, immigration judges would have power to waive removal for humanitarian reasons. Giving immigration judges more discretion to waive removal for humanitarian reasons would put the discretion back where it belongs. Equities should play a meaningful role in immigration court. For too long, immigration court has featured a relentless effort to achieve removal in every case. Under the Biden bill, immigration judges would be free to apply immigration law in a way that acknowledges the humanity intertwined in every immigration case.
The Biden bill recognizes that immigration law is too harsh. It takes steps to alleviate the harshness and those steps would positively benefit immigration adjudication.
Jill E. Family is Commonwealth Professor of Law and Government and Director, Law and Government Institute, at Widener Law Commonwealth.