Immigration Law Under Biden: What’s Changed?

New York Criminal and Immigration Lawyer Cory Forman

Video Transcript: 

Cory Forman:

We at Cohen Forman Barone is really have expertise about the criminal and immigration, and that crimmigration intersection, we work with a lot of clients in securing them new visas that happen to be victims of crimes or co-operators in crimes.

David Rios:

When there's a new administration in Washington, that means a change in priorities, and that's especially true in the world of immigration. So what's changed and how might it affect you? We're going to find out right now as we Ask the Lawyer. Hi everybody, I'm David Rios with AskTheLawyers.com, and my guest today is New York City attorney, Cory Forman. But before we get started, I wanna let you know right off the bat that if you have any questions for Cory of your own, just go to AskTheLawyers.com and click the button at the top that says Ask a Lawyer, or you can always call the number on the screen, Cory, thank you so much for helping this out today, how are you?

Cory Forman:

Thank you for having David, it's great to be here.

David Rios:

So Cory, we are less than a year into the Biden administration, and we're already seeing some changes in immigration practices right on our border. What are some of the biggest changes right now?

Cory Forman:

Well, after four years of the Trump administration, changes were inevitable, 'cause that was like nothing we've ever seen. I'll give you two real significant areas that I practice in both enforcement and in the court system. We are back to a cohesive enforcement priority system, which predated President Obama. Bush had it, Obama implemented a more formal one, and what I mean by a priority-based system, is that there are certain individuals that if they're here on removal orders, if they're here because they've been ordered deported, they're here unlawfully, they are broken up into a priorities for enforcement. The United States government can't be equipped to deport everybody, so under Obama, for instance, people that were here for a long time, pay taxes, had a family, didn't have a criminal records, they were very low-level priority. Frankly, the same thing for President Bush, people that have serious crimes that have a deportation order against them to have served jail time for criminal offense are gonna be much higher priority. Trump Administration did away with all that. Everybody here unlawfully became a priority, and it created a certain atmosphere of fear and really pervaded the entire immigration system as well as the court system. People were afraid to go to court for other matters because anybody can get picked up at any time, so under the Biden administration, the Department of Home Security has re-implemented priorities or certain tiers of priorities, people that have been here for their entire life have raised their children here, have a job here, pay taxes here, no longer have to worry about ICE picking them up on the street at the same level that they did under the Trump administration. 

Cory Forman:

Second, 'cause we do a lot of court work is the court system. The Biden administration has re-empowered the courts as well as prosecutors for that matter, with a certain amount of discretion and authority that was taken away under the Trump administration. Under the Trump administration, prosecutors were not allowed to negotiate anything. Judges had strict quotas that they had to meet. In fact, the quota system just yesterday was announced to be taken away, so they don't have that pressure anymore and they have more discretion in terms of how they deal with cases than they did for the previous four years, which is certainly refreshing and makes practicing immigration law a much more pleasant experience, and it's been for the past four years.

David Rios:

So I've noticed that immigration law could change with the change of an administration, and as you explained to us, that's exactly what's happening today. People that were in the system prior to this Biden administration now have to re-evaluate their entire status, their entire case. Those are some of the cases. For example, what about if a lot of people were asking if they could marry... If they're married to a US Citizen, if they could automatically now change because of this new administration, does that change at all?

Cory Forman:

You bring up a very interesting point, David, and I'm glad you did. It highlights the need for real change in immigration law and comprehensive immigration reform. Immigration law was last changed in 1996, went into effect in 1997, so we've really been at... Any immigration change is really at the whim of executive directors and policy changes by administration, and that's a problem. Sometimes it's beneficial. The example that you're using, if someone entered unlawfully, meaning they cross the border, not that they've overstayed a visa, but they've crossed the border. They have to go back to their home countr, even if they're married to a US citizen. The problem is that if they go back, they're barred from re-entering for a period of time, it could be 3 to 10 years, just by leaving. Under the Obama administration, they implemented a policy where you could apply for a waiver here first. Once you get that waiver, you can go back to, you get your green card, and then you're not subject to that three or 10 year ba. Where you used to have to apply for the waiver after you leave, and people were obviously reluctant to do that, meaning they would leave, it would trigger a 10-year bar. They would first have to apply for a waiver there, wait out the waiver, which could be a year, year and a half, once the waiver was approved, then they could come back in on their green card. The Obama administration, because it's not law, changed the policy where you could apply for the waiver here first, that did not change under Trump, thank goodness. But what did change while President Bush was in office was there was a law called 245(i), where if you did cross the border and you were subsequently married and you didn't have a lawful Admission, you could pay $1000 fine and still apply for your green card while here in the United States. That provision of the law expired in 2001, so unfortunately, we can't do that anymore. Here at Cohen Forman Barone, we advocate and petition Congress as part of our practice to reinstate 245(i) to allow people who have crossed the border unlawfully, but have families here, are married here, to apply for their green cards in the United States.

David Rios:

This is exactly why we recommend people hire a great immigration attorney to help them navigate the system that is constantly being interpreted or it could be changing. I wanna ask you, I've worked with the Latino community all of my life, and I know a lot of immigrants who are here illegally are victims of crime, and can you speak to us if somebody, a family member of an immigrant or an immigrant watching this video that they've been victim of a crime, do they have rights? If so, what can they do? A lot of immigrants are afraid to go to the police for this matter, can you talk to us a little bit about that?

Cory Forman:

Yes, and that was one of the fears under the previous administration, because when you didn't have a priority system and ICE was allowed to go to court to pick people up, they were going to criminal courts, to family court said they were picking people up there. The Biden administration has done away with that. ICE is not allowed in those court houses, so they don't get that fear, while definitely justified under the Trump administration is not a realistic threat, and for now anymore under the Biden administration. With that said though, if you are the victim of a crime, there are potential benefits, immigration benefits to cooperating. There are certain visas that are available to victims of crimes that will ultimately allow them to get a green card, it is a long process, but cooperation with the prosecutor's office or a law enforcement agency is required and if you're the victim of a qualifying crime and you do cooperate or you're the victim of a crime, and you could have the prosecutors office sign off on that, you could petition the government for victims visa called a U-Visa. For the immigration benefits, there are some... In a way, it was a lot of issues that would otherwise make one not eligible for a Green Card, and also just in terms of the criminal process, and if someone's a victim of a crime and they want justice, we're in an environment now that's much more conducive to encouraging them to seek out that justice, to cooperate with law enforcement, to go to report their incidents. Now that they're no longer on of the thread of being picked up just by going to court. But it is important that... And we had Cohen Forman Barone really have expertise about the criminal and immigration, and that crimmigration interseection. We work with a lot of clients in securing them new visas that have been victims of crimes, or cooperators of crimes.

David Rios:

Thank you. And one last question, I really appreciate you taking time to elaborate on all of these very important points, can you tell us something about TPS? I know certain countries are given... I don't know if priority is a good way to explain it, but for example, Venezuela, people from certain regions or certain countries with high crime or persecution might get their case looked at differently.

Cory Forman:

Sure, there are certain countries that have a temporary protected status designation at a certain event, whether natural disaster, political event makes it too dangerous to go back and nationals from those countries that are here could apply for TPS. Now, it's Temporary Protected Status, where it gets renewed every 18 months or so, and it was never an issue in terms of renewing it. The Trump administration clearly, their intent was to eliminate a lot of these TPS designations, so people from countries that have been living here on TPS for decades and even years, well, all of a sudden, TPS was going to lapse and the Trump administration was gonna make sure that it wasn't renewed. El Salvador was a big one, Venezuela was recently designated, but right now that there's more security with the TPS designation, then there was... Now, when I say where there was, I always talk, we're back to a more pre-2016 World, 2016 to 2020 was a very unique time, so we're back to the work, but again, it really highlights the need to... for Congress to act and to engage and for people to engage their legislators, their Congresspeople in advocating for immigration reform.

David Rios:

Thank you very much Cory for taking time to our questions. That's all for this episode of Ask the Lawyer. My guest has been New York City attorney Cory Forman. Once again, I wanna remind you if you have any questions that you would like to ask yourself or Cory, you can go to our website, AskTheLawyers.com, and you can contact Cory directly from our website. Thanks for watching. I'm David Rios with Ask the Lawyers.

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