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January 27, 2021

Continuing the fight for immigration justice in 2021

By Wendy Wayne, Chair, Commission on Immigration

As we begin 2021 and welcome a new administration, we say good riddance to a year that brought unprecedented challenges. We are hopeful as we enter a new year, even though many of the struggles of the last year persist.

In 2020, the Covid-19 pandemic forced us to socially distance and, if we were lucky, work from home while juggling parenting and other responsibilities. Others lost their jobs and livelihoods and fell sick with the virus. Too many among us lost friends and loved ones to the devastating pandemic.

Within the immigration system, we witnessed the continued forced return of asylum seekers to Mexico to wait for their immigration proceedings in horrific makeshift refugee camps under the “Migrant Protection Protocols” (MPP), the temporary closing of immigration courts throughout the country, expansion of expedited removal, roller coaster implementation of a new public charge rule, closing of the border with expulsions of migrant adults and children under Title 42, multiple deaths from Covid-19 among immigration detainees and the finalization of more than two dozen administrative rules and regulations that significantly impact immigrants, refugees, and asylum seekers.

In the face of these unprecedented challenges, the ABA Commission on Immigration’s members across the country and its staff in Washington, D.C., Harlingen and Houston, Texas, and San Diego, California, spent 2020 digging in, continuing their work to advance due process and access to counsel, all while confronting the pandemic and the rapid succession of administrative, regulatory, and policy moves that stacked the deck against migrants seeking protection and justice.

Many of us feel some relief as we enter a new year with promising actions in the early days of the new administration. In its first week, the Biden-Harris administration took important first steps. It announced proposed legislation for broad comprehensive immigration reform and took executive action to revoke the Muslim and African travel bans. It paused deportations for 100 days while rescinding enforcement priorities dramatically expanded under the prior administration (UPDATE: A federal judge in Texas on Tuesday temporarily blocked the deportation moratorium.) The new administration halted border wall construction, ordered the preservation and plans to “fortify” DACA, and stopped adding more people to the harmful MPP program. President Biden also signed orders to reinstate and extend Deferred Enforced Departure (DED) for Liberians and halt plans to exclude noncitizens from the Census count.

Still, many things remain uncertain. What more will the new administration do about MPP and DACA, and how? What might the new administration do about the public charge rule? Will it undo the harmful asylum omnibus rule virtually shutting the asylum system’s doors to those fleeing gender-based and gang violence? Will it address the compounding impact of longstanding racism within the criminal justice system on immigrants of color and on immigration enforcement policy? How will the administration address the historic backlogs in the immigration court system? What will it do to ensure humane detention conditions, particularly as Covid-19 outbreaks spike in detention centers across the country?

Whatever confronts us this year, the ABA Commission on Immigration and its on-the-ground projects will remain in the fight for a fair immigration system. That begins with the ABA’s policy paper, Achieving America’s Immigration Promise: ABA Recommendations to Advance Justice, Fairness, and Efficiency, detailing concrete recommendations for the new administration in five priority areas of immigration law and policy:

1.       Restoring immigration adjudications

2.       Ensuring access to counsel

3.       Ending reliance on detention

4.       Restoring Access to Humanitarian Protection

5.       Protecting Unaccompanied Immigrant Children

Join us when we explore in more detail our recommendations and what to expect from the new administration in an upcoming webinar, Rebuilding America’s Immigration System: The First 100 Days of a Biden Administration on Friday, February 19.

The ABA and Commission’s work to improve fairness in the immigration system goes beyond policy recommendations. Just last week, the ABA filed an amicus brief in the Supreme Court in support of legal services providers challenging MPP in Innovation Law Lab et al v. Wolf, arguing that MPP deprives asylum seekers of due process and unreasonably frustrates attorneys representing asylum seekers from fulfilling their ethical duties under the ABA Model Rules of Professional Conduct.

Meanwhile, our detainee hotline operating from Washington, D.C. continues to provide information and orientation to individuals in immigration detention centers across the country. ProBAR, the Commission’s direct service project in Texas’ Rio Grande Valley, provides direct representation as well as legal orientation to thousands of unaccompanied children and adults in area detention centers, along with information and legal services to individuals subjected to MPP in the Matamoros area of Mexico. On the West Coast, Immigration Justice Project continues to provide legal orientation and representation to detained individuals at Otay Mesa Detention Center, including as appointed counsel for migrants deemed to lack mental competency to represent themselves. And our Houston-based Children’s Immigration Law Academy (CILA) continues to provide expert training, resources, and technical assistance to a growing army of attorneys and advocates representing unaccompanied immigrant children, with the goal of ensuring no child faces immigration court alone.

On January 4, the Commission launched Federal Free Legal Answers, an online program that operates like a virtual walk-in clinic, enabling financially-eligible users to post legal questions for volunteer attorneys in the areas of federal immigration and veterans’ law. The Commission collaborated with the ABA Standing Committee on Legal Assistance for Military Personnel, the ABA Standing Committee on Pro Bono & Public Service, and the American Immigration Lawyers Association (AILA) to launch FLA Federal. And this week, the Commission is training pro bono attorneys in a two-day virtual CLE on the fundamentals of representing detained adults and unaccompanied children in removal proceedings, because it is imperative that we grow the ranks of attorneys prepared to fight for due process and justice.

The Commission’s blog, Generating Justice: Immigration Reflections from the Border and Beyond, shares analyses, insights and reflections on the state of our current immigration system, with contributions from our members and the Commission’s direct services projects in Texas’ Rio Grande Valley and San Diego, from its Children’s Immigration Law Academy experts based in Houston, from detainee hotline and information line staff, and from policy and pro bono staff. We hope you will bookmark this page and visit regularly to learn more about the critical work the Commission is doing from the border to Capitol Hill and beyond.

We do not know exactly what this new year and new administration will bring. Whatever the challenges, however, I am confident that the ABA Commission on Immigration will continue its unwavering commitment to safeguard due process and bolster access to counsel by leveraging the strength of our collective experience and expertise.

Wendy Wayne is the 2020-2021 Chair of the ABA Commission on Immigration and Director of the Immigration Impact Unit of the Massachusetts Committee for Public Counsel Services.

Wendy Wayne

Chair, Commission on Immigration

WENDY WAYNE is the founder and Director of the Immigration Impact Unit at the Committee for Public Counsel Services (CPCS), the Massachusetts public defender agency, where she provides training and advice to court-appointed attorneys throughout Massachusetts and engages in systemic impact litigation on the interplay between immigration and criminal law. She is a frequent speaker locally and nationally on immigration enforcement issues. Prior to becoming an immigration expert, Wendy was a trial attorney at CPCS representing individuals charged with serious felonies. She has previously served on the Department of Homeland Security Advisory Council Task Force on Secure Communities, Massachusetts Access to Justice Commission and Board of Directors of the Massachusetts Association of Criminal Defense Lawyers. Wendy currently serves as the Chair of the American Bar Association Commission on Immigration. She was the recipient of the 2004 Political Asylum and Immigration Representation (PAIR) Project’s Detention Attorney Award and the 2018 CPCS Carol A. Donovan Award for Exceptional Advocacy.