Americans delivered a mandate to Congress and President Biden: fix our broken immigration system.

Brian Tashman, Deputy Division Director, ACLU

Naureen Shah, Senior Legislative Counsel and Advisor

Congress and President Biden have a mandate from the American people to fix our broken immigration system: It’s time to pass legislation that provides a pathway to citizenship and legal residency for the millions of people in this country who are our neighbors, co-workers, friends and loved ones — yet are denied the ability to live freely as citizens and legal residents. The American people soundly rejected the hateful and divisive anti-immigrant policies pursued by the Trump administration. Now it’s imperative for Biden and Congress to seize on this momentum to finally get citizenship legislation done.

The goal for Congress this year must be to pass legislation to create a pathway to citizenship for the 11 million undocumented people living in the U.S. In February, members of Congress introduced myriad bills that would help get us there, including the landmark U.S. Citizenship Act of 2021 and the American Dream and Promise Act. The bottom line is this: Too many members of our communities are living in fear of being deported away from their homes and families. They are being denied a pathway to become citizens and legal residents, even as they serve on the frontlines of the COVID-19 pandemic, raise their kids, support our communities, and contribute to our country. This is unfair and unjust. Congress has a responsibility to act.

Biden’s Day 1 Immigration Bill: The U.S. Citizenship Act

The U.S. Citizenship Act is comprehensive legislation that will help millions of people. If passed into law, immigrants who have lived in the U.S. before Jan. 1, 2021 will have a path to gain legal status and eventually be eligible for citizenship.

It will also reform immigration law to help prevent future discriminatory bans, like the Muslim ban and its targeting of Africans, and undo restrictions that have made it more difficult to work, travel, and live openly, and administer new aid and support programs meant to address the root causes of migration.

Along with this comprehensive legislation, several lawmakers are also proposing more targeted bills that may see votes in Congress.

Realizing America’s Dream & Promise

The Trump administration threw peoples’ lives into chaos by attempting to terminate the Deferred Action for Childhood Arrivals (DACA) program, Temporary Protected Status (TPS) for hundreds of thousands of U.S. residents, and Deferred Enforced Departure (DED) for Liberians. While court rulings and recent actions by President Biden helped limit the enormous harm that transpired over the past four years, DACA is still at risk due to persistent court challenges, and TPS and DED recipients continue to face long-term uncertainty. Members of our communities have suffered the indignity of being used as political pawns for far too long.

If passed, the American Dream and Promise Act will provide protection from deportation and a pathway to citizenship for Dreamers and immigrants eligible for TPS and DED, ending the fear and legal limbo experienced by too many people in our country once and for all. The ACLU continues to urge Congress to strengthen due process, reduce racial disparities, and end the disproportionately harsh consequences of criminal convictions in any future immigration legislation.

Preventing Discriminatory Bans

On Jan. 20, President Biden rescinded Trump’s Muslim ban, including its expansion explicitly targeting Africans. This was a milestone victory for all the advocates who spent four years demonstrating, advocating, and fighting to stop the ban. Now we must make sure that presidents cannot use rank prejudice to enact discriminatory bans in the future.

The NO BAN Act will put stricter standards in place to limit such abuses of executive authority in the future, including Trump’s use of this authority to destroy our immigration system during the pandemic. There is much work to do in order to right the wrongs against people whose lives were destroyed by the ban.

We must also prevent any community from enduring this kind of harm in the future, and make certain that presidents cannot abuse their powers in such a way again.

No Tradeoffs That Hurt Our Communities

As lawmakers debate these bills, they should ensure that the legislation gives a fair chance to all Americans in waiting. Using criminal convictions and allegations of criminal conduct to categorically exclude immigrants from a path to legalization and citizenship is unnecessary and harmful. As we embark on new reforms for our broken immigration system, we should not import the problems that plague our criminal legal system — including the disproportionate targeting of Black and Brown people. We also cannot deny people access to benefits or citizenship based on fear-mongering and bigotry that stereotypes Muslim, Arab, Middle Eastern, and South Asian community members as “threats” and targets them for national security surveillance, discrimination, and worse. Categorically barring people from citizenship or residency based on stereotypes or past actions also denies them the chance to show that their personal histories, experiences, and family and community ties mean they ought to be able to stay.

Citizenship legislation should not be used as a vehicle for throwing even more money toward immigration and border enforcement personnel, technology, or equipment. Over the past two decades, border communities have experienced increased civil liberties and rights violations at the hands of Customs and Border Protection (CBP) officials, extreme surveillance and over-policing, and wanton destruction of wildlife and nature. CBP and ICE are already enormously overfunded. DHS received $26 billion for immigration enforcement in fiscal year 2020 — 33 percent more than all federal criminal law enforcement agencies combined. And in the past four years, ICE and CBP’s budgets have increased by $6 billion. Given the abuses committed by CBP and ICE agents, Congress should not be rewarding the agency with additional technology funding.

Surveillance technology, justified as a means of border security, frequently spreads across border communities, degrading privacy rights of all residents. CBP use of technology has extended far away from the physical border and for purposes that have nothing to do with the border — as evident by CBP’s use of drones on Black Lives Matter protesters last summer and surveillance of George Floyd’s burial. CBP spent $1 billion on its last failed attempt to create a “virtual border fence.” These efforts don’t come with any of the necessary privacy protections, nor does peppering sensitive lands with mobile surveillance towers respect the environment or border communities.

Not all technologies — if used with appropriate safeguards — infringe on privacy and civil liberties. However, past border proposals have suggested expanding warrantless and broad aerial surveillance, constant video monitoring, or biometric collection. Congress should not leave it to DHS to determine what privacy safeguards are necessary to prevent rights violations.

This is a moment of profound possibility for our nation. We urge Congress to seize it.