After President Trump took office, civil and legal advocates organized to help some of the most vulnerable communities that were being targeted by the administration’s anti-immigrant rulings. As a documentary filmmaker, I am inspired by stories of individuals who take it upon themselves to help others. In 2019, I had the opportunity to film with five immigration lawyers who fight to keep families together and protect their clients’ safety.
March 11, 2022 Feature
The Making of Status Pending: A Documentary on Immigration Law in the Trump Era
By Priscilla González Sainz
Status Pending is a 26-minute documentary that shows the effects of Trump era policies through the lens of legal representatives. The film takes us into the lives and work of five first-generation, Mexican American immigration lawyers who created an informal support group. Araceli G. Guerrero, Alma D. Puente, Gladdys J. Uribe, Elizabeth P. Uribe, and Jose Osorio all got their start at the same high-intensity law firm in Los Angeles. One by one, they left to start their own firms across Los Angeles and Orange County. But through their friendship and constant communication, they provide professional and emotional support for each other as they navigate the most challenging time in their careers. Through their perspectives, we see how the administration’s interpretation of laws and changes in policy directly affect their clients and legal strategies. Taking place more than halfway into Trump’s presidency, we see the personal toll that this often heartbreaking line of work has on legal professionals on the frontlines.
The film now stands as a portrait of what it was like to practice immigration law during the Trump era. But while some of the most egregious rulings have been rescinded by the Biden administration, there is still much work to be done for immigration reform.
Origins of the Documentary
This film was inspired by my sister, Araceli G. Guerrero, who is one of the lawyers featured in the film. I had just moved back to Southern California in 2017 after completing my master of fine arts in documentary film from Stanford University. My sister had recently started her solo immigration law practice and offered me part-time work while I got settled. We found that my skills were most useful translating for clients during their U.S. Citizenship and Immigration Services (USCIS) interviews and helping to write declaration letters. My sister taught me to review personal letters, recommendations, and medical records, as well as to select photos, children’s report cards and more, in order to craft a narrative that demonstrated why the client’s family would suffer extreme hardship if they were deported. In other cases, we had to show how a client’s life would be in danger if they went back to their home country.
There was a constant looming dread that Trump’s next tweet could result in a life-changing policy for her clients. I heard the fear in clients’ voices as more restrictions were put into place, as we heard of raids and increased apprehensions. I saw my sister uproot her life to be closer to the office and still take work home with her every night.
I also learned that she was active on a text thread with some of her colleagues who called themselves “The Minions.” The playful moniker of “The Minions” came from their time working together at a major law firm. They kept each other up to date on the latest news, resources, and information. They could turn to each other for advice on strategies and case precedents. They could share good news, and sad news, all from the safe space of their shared experiences. Most of all, they shared a passion for their work and their personal connection with the communities they serve.
With so much misunderstanding about legal proceedings, and the growing anti-immigrant sentiment, I felt that this side of the story needed to be told. It was my goal to complete the film before the 2020 election.
The film became a reality because of the collaboration and trust from the five lawyers and through the support of the Tribeca Film Institute (TFI). In February 2019, the project won the IF/Then Shorts Pitch for the American West at Big Sky Documentary Film Festival in Missoula, Montana. The IF/Then program provided funding and mentorship every step of the way. We premiered at Big Sky exactly one year later, in 2020, to a full house.
Then and Now
A year into President Biden’s administration, I had a chance to discuss the status of immigration with the lawyers featured in the film. Overall, the feeling is that the administration is not doing enough for immigration reform and not delivering on their campaign promises.
“He said he would introduce legislation on the first day, within the first hour, then it got pushed back five days, then nine, and then we got some watered-down policy and here we are, a year into the administration, and we don’t have reform,” says Osorio.
“It’s better, my clients’ lives are better, but our communities deserve more,” says G. Uribe. “I’m not seeing what I voted for yet. Trump’s administration did so much damage to immigrant communities that I understand that it’s going to take this administration a while to undo it. That being said, it seems like it’s taking too long.”
Distancing Himself from Trump
The Biden administration has made efforts to differentiate itself from Trump-era immigration policies.
“Perhaps for some it might not be a big deal, but when the Biden administration decided to change the word from ‘alien’ to ‘noncitizen,’ it was such a monumental thing for me,” Puente says. She says of her colleagues, “many of us were actually in tears.”
There has been an effort by the Department of Homeland Security to bring more humanity to the language they use. The April 2021 memo ordered U.S. immigration enforcement agencies to replace the word “alien” with “noncitizen or migrant,” replace “illegal” with “undocumented,” and replace “assimilation” with “integration.”
“I’m hopeful that it’s an indicator of where we’re headed in terms of humanizing people who are here and that have been for decades or people who are coming here seeking refuge from horrific situations in their home country,” Puente says.
Public Charge
Trump’s immigration agenda aimed at restricting legal immigrants who were already in the United States as well as immigrants seeking to enter. It also targeted low-income families.
One of Trump’s most detrimental rulings was the redefinition of the “public charge” rule. The “public charge” inadmissibility test refers to U.S. immigration officials’ decision whether to admit an immigrant based on whether they might become dependent on government benefits. While this rule was not enacted by Trump—it was established by Congress in 1992—the administration redefined what made someone dependent or “likely” to become dependent in order to reduce the number of people who were eligible for green cards or other visas.1
The new interpretation empowered officials to more readily deny applications for admission2 or adjustment of status if immigrants, their sponsors, or family members utilized a broad range of public assistance, such as Medicaid, food stamps, or housing assistance.3 The new test could more specifically consider noncash medical, housing, and food benefits and took into account an immigrant’s educational level, ability to speak English, and credit score. The fear of being penalized for using public benefits has had devastating health consequences on immigrant families.4
“This really had a chilling effect on folks seeking their green card applications,” says G. Uribe. “It also sadly had a really detrimental effect on immigrant families who relied on public benefits and who were now too scared to access those benefits.
“In 2016, we had about 1,000 denials based on the public charge,” G. Uribe continues, “whereas in 2019, we had at least 21,000 denials based on the public charge.”
In the documentary, Puente recounts the traumatic experience of her client being taken into custody for deportation at his check-in to E. Uribe outside of U.S. Immigration Court in downtown Los Angeles. Puente then meets with the client’s wife, Claudia. With her husband now deported in Mexico, Claudia and her two daughters are about to become houseless and live in their car. But Claudia cannot seek government assistance, although she and her daughters are U.S. citizens, for fear that this would affect her husband’s case by being seen as a “public charge.” After Puente reassures Claudia that she will continue working on obtaining a green card for her husband, Claudia leaves, and Puente calls G. Uribe to ask for housing resources for her client.
“[Trump] made a big show of saying that he was going to build this wall,” G. Uribe says. “And while Trump was largely unsuccessful in building this physical wall, he was very successful at enacting this administrative law that barred a lot of immigrants from accessing services and immigration benefits.”
In March 2021, the Biden administration announced that they no longer defend the 2019 “public charge” inadmissibility statute. The Department of Homeland Security (DHS) reverted to the Clinton-era rules, which instruct officials only to deem immigrants as a “public charge” if they receive government cash benefits or long-term institutionalized care. DHS can no longer deny admissibility based on an individual’s utilization of Medicaid, public housing, or food stamps.5
Additional Trump-era policies that targeted the poor and working class were rescinded under President Biden. Green card applicants are no longer required to prove access to private health insurance. USCIS fee hikes were also blocked.6
Prosecutorial Discretion
“A lot of the policies that have been put in place by Biden are Obama-era policies, so instead of something new, it’s going back to what was around before Trump became president,” Osorio says.
One of the major changes to immigration court under President Biden is the return of prosecutorial discretion (PD). PD is the authority of an agency charged with enforcing the law to decide where to focus its resources and whether or how to enforce, or not to enforce, the law against an individual.7 It refers to the court’s practice of prioritizing the cases that are most critical or pose a serious threat.
When Trump came into office, PD was taken away. Whereas prior guidelines outlined a framework for prioritizing government time and resources to focus on removal of persons convicted of serious crimes, the Trump administration expanded the scope and essentially made every removal case a priority. On January 25, 2017, shortly after taking office, the administration laid out its enforcement policies in Executive Order 13768, “Enhancing Public Safety in the Interior of the United States.” The order defines enforcement priorities so broadly as to place most unauthorized or noncitizen individuals at risk of deportation, including long-term residents and Dreamers (individuals brought to the United States as minors).8
“Typically, when a client went into court, they either came out with a green card, or with a deportation order,” says G. Uribe. “Obama came into office and that changed, and it was really refreshing that folks were eligible for immigration relief, even if they weren’t necessarily going to win their cases.”
“[PD] allows us to reach out to [government attorneys, or OPLA (Office of the Principal Legal Advisor)] to make a case as to why our client’s case should be either administratively closed or terminated,” E. Uribe says. “When you are granted administrative closure, it removes you from the active court docket. So, you’re technically still in removal proceedings. But the way I explained it to clients is that your case is frozen, so you’re essentially taken out of an imminent threat of removal or deportation. When your case is terminated, then it means that you are no longer in any type of removal or deportation proceedings at all.”9
With PD, judges have discretion over whom to detain and arrest; whom to release; whether to settle, dismiss an appeal, or join in a motion on a case; and whether to grant deferred action, parole, or stay of removal.10 The factors judges take into account include how long the individual has been in the United States, what type of family or community ties they have, whether they have family members in the military, and other compelling humanitarian reasons to grant PD.
“The Trump administration came in, the Attorney General came in and took all those abilities away,” says Puente.
“Talk about stripping away judicial independence,” says Puente. “It felt like the judges no longer had the ability to control their decisions based on what they saw fit. And so it was like make a decision—either deport or grant a benefit. But there’s nothing in between. That’s where we were for the majority of the Trump administration.”
During Trump’s first five months in office, prosecutorial discretion closures dropped to fewer than 100 per month from an average of about 2,400 per month during the same month period in 2016.11
“Many people were ordered removed, or their cases were denied where it’s clear that there would been an opportunity to do something else under the prior administration,” says Puente. “If it wasn’t a green card, at least you can get to stay here in this sort of nebulous state. But there is some threat of removal.”
PD does not always offer a permanent solution for their clients, but it does allow more families to stay together. For instance, the Obama administration introduced a policy where individuals living in the United States who were going through the consular process could apply for a provisional waiver so that they could stay in the United States rather than go back to their home country. But their cases had to be administratively closed, which was not possible without PD.
On a pragmatic level, Trump’s removal of PD resulted in a waste of government resources and the increased backlog of immigration court cases. “The very idea of enforcement priorities is that the government has limited resources, and it cannot remove the estimated 11 million undocumented people who are in the United States; therefore, it should prioritize who it wants to remove,” says G. Uribe.
On May 27, 2021, in what is known as the Trasviña memo,12 the Biden administration announced the return of PD. The September 30, 2021, Mayorkas memo13 outlines the Biden administration’s civil immigration enforcement priorities: (1) threat to national security, (2) threat to public safety, and (3) threat to border security.
“I really want to note that this prosecutorial discretion, this version that we have now that was announced in May 2021, is very different than what we had under the Obama administration,” says E. Uribe. “The types of factors that are going to be taken into consideration are going to be how long has the individual been in the United States? What type of family or community ties do they have? Do they have family members who are in the military? What’s their immigration history? And, in some cases, are there any compelling humanitarian reasons why they should be granted? If somebody has an arrest or criminal conviction, you can still seek prosecutorial discretion. And what you’re going to want to address is factors such as how long ago was this offense? What were the circumstances that led up to this offense? Is there rehabilitation[?]” says E. Uribe. “We welcome this change, but it’s not enough.
“[P]reviously, if I represented clients where potentially they were recently arrived in the United States and their only form of relief was maybe asylum,” E. Uribe continues, “those people could still be considered for prosecutorial discretion. Today, I’ve yet to see somebody in that situation be granted prosecutorial discretion. So, I would say that if you have an [alternative] form of relief, outside of the immigration court, then your chances of being granted a request for prosecutorial discretion are much higher than someone who, you know, maybe only has asylum, or has hefty, potentially some criminal convictions.”14
Protected Status
The Trump administration chipped away at the U.S. asylum system, causing one to question what “asylum” even meant anymore. Upon taking office, Trump introduced policies to reduce the number of immigrants allowed to enter the country, such as Executive Order 13796, the first of the travel bans, “Catch and Release,” and the RAISE (Reforming American Immigration and Strong Employment) Act.
The Trump administration ended temporary protected status (TPS) for almost 300,000 immigrants,15 forcing individuals who were living in the United States to escape dangers in their home countries to leave. The administration terminated TPS designations for six countries: El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan.16
In 2018, then Attorney General Jeff Sessions ruled that domestic violence is not grounds for asylum.17 During the time that I was researching and then filming for the documentary, I saw how the lawyers had to re-strategize every time the administration issued a new ruling. The termination of TPS affected all of them. The ruling against domestic violence was a particularly devastating blow to their clients and, I think, personally, to how they felt about the legal system that no longer seemed to uphold the values they promised to protect.
In March 2021, the Biden administration designated TPS status for two countries: Venezuela and Burma, and in May of the same year, redesignated Haiti for protection.18 Since then, the Biden administration has extended the list of eligible countries. Advocates are waiting for a clear path to immigration for those who are eligible.
Other protective statuses for immigrants in the United States include U-Nonimmigrant Status, or U-Visa, which is designated for those who have suffered physical or mental abuse while in the United States.
“We’ve also seen positive changes to U-Visas. The current waitlist time for U-Visas is about five years,” says G. Uribe. “Typically a U-Visa applicant has not been entitled to a work permit during this very long period of time that they’re here in the United States waiting for their application to be adjudicated. Biden recently announced that U-Visa applicants who can show that their case is bona fide will be entitled to a work permit and to deferred action status while their case is pending.” A “bona fide” case means that the applicant has properly filed the application and submitted a personal statement about the incident and biometrics.
As a side note, while working on this documentary, I also learned that there is much misunderstanding about how long these legal proceedings take. For the lawyers, each step toward legal status and naturalization is a cause for celebration.
On his first day in office, President Biden issued Executive Order “Revision of Civil Immigration Enforcement Policies and Priorities.” The same day, Trump’s 2018 Notice to Appear guidelines were revoked and the 2011 guidelines were reinstated. Under Trump’s guidelines, individuals who had been denied USCIS benefits, such as a U-Visa or Deferred Action for Childhood Arrivals (DACA), could be sent to USCIS to begin removal proceedings.19
“I personally had a couple of clients referred to immigration court whose U.S. visa cases were denied,” G. Uribe says. “And now it appears that we’ve gone back to prior guidance and folks who have been denied won’t be referred to immigration proceedings.”
The Border
So far, the Biden administration seems to be following Trump’s restrictions on admitting immigrants at the border, with modifications.
In January 2019, the Trump administration implemented the Migrant Protection Protocols (MPP), known as the “Remain in Mexico” program, which allowed the government to turn asylum seekers away at the U.S.-Mexico border and to wait in Mexico while their cases were pending in the U.S. immigration court system.
As of November 2019, over 56,000 asylum seekers had been sent away from the border to wait in Mexico.20 These individuals are forced to wait in dangerous areas along the border or live in makeshift tents. They face the risks of kidnapping, sexual assault, exploitation, and lack of basic needs. Individuals are stripped of access to U.S. legal services and due process rights.
One of the most controversial immigration rulings of the Biden administration is the reimplementation of the Remain in Mexico policy.
The Biden administration asserts they are working on improving conditions for asylum seekers stuck in Mexico. The administration is working to provide legal services and other assistance such as Wi-Fi and transportation.
Biden also continues to enforce title 42, a 1944 public health and welfare statute that allows U.S. Customs and Border Protection to deny entry to persons at the border without due process if they are deemed to pose a potential health risk.
During the pandemic, the Trump administration misused public health authority to further shut down the border. According to U.S. Customs and Border Protection data, between October 2020 and August 2021, 938,045 migrants were removed under Title 42.21 Health experts condemn the misuse of Title 42, and the Centers for Disease Control and Prevention claims that the order “does not provide adequate public health justifications for expelling asylum-seeking families at the border.”22
Title 42 and MMP are criticized as violating human rights. Yet, the Biden administration has not done away with these policies or replaced them with something more humane.
Dreamers
In 2012, the Obama-Biden administration created the DACA policy. Nearly 800,000 immigrants who grew up in the United States were approved to remain in the U.S. under this policy.
Trump issued an order to end DACA on March 5, 2018. Although the federal court did not allow his administration to completely cancel DACA, no new applications were accepted.
On July 16, 2021, the U.S. District Court for the Southern District of Texas ruled that DACA is illegal. In a published statement, President Biden said, “The Department of Justice intends to appeal this decision in order to preserve and fortify DACA. And, as the court recognized, the Department of Homeland Security plans to issue a proposed rule concerning DACA in the near future.”23
Ten years after the program started, there is still no pathway to citizenship for Dreamers.
“It’s important to note that USCIS will accept additional DACA applications, but they cannot currently adjudicate them,” G. Uribe says. “The Biden administration is currently challenging the ruling, but the onus is really going to be on Congress to codify DACA and to provide a path to lawful permanent residency. I’d like to note that the restoration of Advanced Parole for our DACA recipients has been a very welcome change. Because now DACA recipients who are married to U.S. citizens can make use of Advanced Parole to become eligible for Adjustment of Status, and that way they can avoid the riskier process of [going through the consular process].”
Lasting Effects
The Trump administration made changes to policy and society that may never be reversed. Biden’s approach, while less dire, does not address the urgent need for immigration reform.
“Trump managed to change the narrative of how the U.S. deals with immigration,” Osorio says. “It’s like before the question was, what do we do about the 11 people who are here without status? Now that’s off the table completely. Instead, now it’s, let’s see what can be done about Dreamers, about TPS holders, about essential workers . . . what can we do for them?
“It’s a piecemeal approach,” Osorio continues. “And even that hasn’t materialized. Dreamers still don’t have a pathway to become citizens. That’s the damage. That harmful narrative remains.”
Endnotes
1. The Public Charge Rule, Boundless (Apr. 22, 2021), https://www.boundless.com/blog/public-charge-rule-explained.
2. Changes to “Public Charge” Inadmissibility Rule: Implications for Health and Health Coverage, KFF (Aug. 12, 2019), https://www.kff.org/racial-equity-and-health-policy/fact-sheet/public-charge-policies-for-immigrants-implications-for-health-coverage.
3. Emily Moon, How Trump’s Latest Crackdown on Public Benefits Fits into His Immigration Plans, Pac. Standard (May 28, 2019), https://psmag.com/news/how-trumps-latest-crackdown-on-public-benefits-fits-into-his-immigration-plans.
4. Joseph Daval, Biden’s Shot at a Better Public Charge Rule, Health Aff. (Sept. 29, 2021), https://www.healthaffairs.org/do/10.1377/forefront.20210924.126765/full.
5. Camilo Montoya-Galvez, Biden Administration Stops Enforcing Trump-Era “Public Charge” Green Card Restrictions Following Court Order, CBS (Mar. 10, 2021), https://www.cbsnews.com/news/immigration-public-charge-rule-enforcement-stopped-by-biden-administration.
6. Gladdys J. Uribe, Speaker, Mexican American Bar Association (MABA) Immigration Update: Where Are We Now? (Nov. 3, 2021).
7. Prosecutorial Discretion and the ICE Office of the Principal Legal Advisor (OPLA), U.S. Immigr. & Customs Enf’t, https://www.ice.gov/about-ice/opla/prosecutorial-discretion.
8. Fact Sheet: Summary of Executive Order “Enhancing Public Safety in the Interior of the United States,” Am. Immigr. Council (May 19, 2017), https://www.americanimmigrationcouncil.org/immigration-interior-enforcement-executive-order.
9. G. Uribe, supra note 6.
10. Fact Sheet: The End of Immigration Enforcement Priorities Under the Trump Administration, Am. Immigr. Council (Mar. 7, 2018), https://www.americanimmigrationcouncil.org/research/immigration-enforcement-priorities-under-trump-administration.
11. Immigration Court Dispositions Drop 9.3 Percent Under Trump, Trac Immigr. (Syracuse Univ.) (July 17, 2017), https://trac.syr.edu/immigration/reports/474.
12. Memorandum from John D. Trasviña, Principal Legal Advisor, Dep’t of Homeland Sec., Interim Guidance to OPLA Attorneys Regarding Civil Immigration Enforcement and Removal Policies and Priorities (May 27, 2021), https://www.ice.gov/doclib/about/offices/opla/OPLA-immigration-enforcement_interim-guidance.pdf.
13. Memorandum from Alejandro N. Mayorkas, Sec’y, Dep’t of Homeland Sec., to Tae D. Johnson, Guidelines for the Enforcement of Civil Immigration Law (Sept. 30, 2021), https://www.ice.gov/doclib/news/guidelines-civilimmigrationlaw.pdf.
14. Elizabeth P. Uribe, Speaker, Mexican American Bar Association (MABA) Immigration Update: Where Are We Now? (Nov. 3, 2021).
15. Joe Walsh, Trump Can End TPS Protections for Almost 300,000 Immigrants, Court Rules, Forbes (Sept. 14, 2020), https://www.forbes.com/sites/joewalsh/2020/09/14/trump-can-end-tps-protections-for-almost-300000-immigrants-court-rules/?sh=6be3457e75b2.
16. Jill Wilson, Cong. Rsch. Ser., RS20844, Temporary Protected Status and Deferred Enforcement Departure (Aug. 9, 2021), https://sgp.fas.org/crs/homesec/RS20844.pdf.
17. Katie Benner & Caitlin Dickerson, Sessions Says Domestic and Gang Violence Are Not Grounds for Asylum, N.Y. Times (June 11, 2018), https://www.nytimes.com/2018/06/11/us/politics/sessions-domestic-violence-asylum.html.
18. Wilson, supra note 16.
19. Biden Administration Rescinds 2018 USCIS Notice to Appear Guidance, CLINIC (Feb. 23, 2021), https://cliniclegal.org/resources/removal-proceedings/biden-administration-rescinds-2018-uscis-notice-appear-guidance.
20. Q&A: Trump Administration’s “Remain in Mexico” Program, Human Rts. Watch (Jan. 29, 2020), https://www.hrw.org/news/2020/01/29/qa-trump-administrations-remain-mexico-program#.
21. Armando Garcia, Deena Zaru & Quinn Owen, What Is Title 42? Amid Backlash, Biden Administration Defends Use of Trump-Era Order to Expel Migrants, ABC News (Sept. 16, 2021), https://abcnews.go.com/US/title-42-amid-backlash-biden-administration-defends-trump/story?id=80149086.
22. “Illegal and Inhumane”: Biden Administration Continues Embrace of Trump Title 42 Policy as Attacks on People Seeking Refuge Mount, Human Rts. First (Oct. 21, 2021), https://www.humanrightsfirst.org/resource/illegal-and-inhumane-biden-administration-continues-embrace-trump-title-42-policy-attacks.
23. Press Release, White House Briefing Room, Statement by President Joe Biden on DACA and Legislation for Dreamers (July 17, 2021), https://www.whitehouse.gov/briefing-room/statements-releases/2021/07/17/statement-by-president-joe-biden-on-daca-and-legislation-for-dreamers.