Biden Immigration Policy Promises

Restoring Justice: An Analysis of Biden’s Immigration Policy Promises, and What We Might Expect

In just four years, the Trump administration has dramatically reshaped U.S. immigration laws by gutting immigration bureaucracies and using terror to deter undocumented migrants from arriving at the southern border. Representing more than the sum of the individual laws, the Trump administration’s immigration policies amount to a departure from the U.S.’ attitude towards immigration heretofore as a benevolent flow of people and ideas, and as fundamental to the country’s responsibility of welcoming those seeking refuge. 

The Trump administration’s rolling back of existing avenues of immigration have been broad in scope and deep in impact. By intentionally creating a backlog of visa applications and naturalizations as well as lowering the annual refugee ceiling by an unprecedented 86% (from President Obama’s 110,000 in 2016 to 15,000 in 2021), Trump has managed to cut legal immigration by 50%.

The administration befuddled a bipartisan array of legislators by taking action to restrict specialized H-1B visas, a move which effectively curtailed the influx of high-skill and college-educated immigrants who have been proven to contribute disproportionately to national innovation.

The Trump administration has renewed its efforts to stop immigration in recent months, this time under the auspices of preventing the spread of COVID-19. This April, Trump announced a Presidential proclamation which forestalled virtually all avenues of immigration, to be renewed as long as his administration deems necessary.  The indiscriminate nature of these policies, best exemplified by the H-1B visa cuts, illuminates an underlying perception of immigration as detrimental to the U.S. in and of itself. 

President Trump has taken aim at undocumented immigration in a similarly far-reaching manner, though with an added quotient of cruelty. Within months of assuming office following a campaign in which he had derided Mexican immigrants as “rapists,” President Trump and then-Attorney General Jeff Sessions instituted their now defunct ‘zero-tolerance’ policy of separating immigrant mothers from their children without due process.

Trump’s administration and ICE have also concertedly pushed to expedite deportations and bar certain immigrants from being able to make a legal plea to remain in front of a U.S. immigration judge. Moreover, the Migrant Protection Protocols, which are in reality anything but– and are more aptly referred to as the ‘Remain in Mexico’ policy– allows U.S. migration officers to return asylum seekers to Mexico to await their trial without legal assistance.  The locations to which asylum seekers are moved are dangerous, and the vulnerable populations affected by this policy face high rates of kidnapping, sexual assault, and extortion as they await trail in an increasingly slow and bogged-down immigration court system. 

These administrative actions are underpinned by a disregard for human life and are brazen in their motive of using terror as a migration deterrent. Accordingly, the President’s policies have collectively drawn anger from an array of American citizens and legislators, and have been condemned by international human rights organizations.

It is from this shameful nadir in U.S. immigration history which President-elect Joe Biden seeks to govern. In order to rectify the U.S.’ image on the world stage and reverse the current course of action, the President-elect is signaling an attempt to overhaul virtually every aspect of U.S. immigration policy, with proposed changes including the way the U.S. polices its southern border, a dramatic liberalization of asylum policy, and more robust protections for TPS and DACA. In sum, the proposed changes constitute the most comprehensive immigration policy platform in modern American history. 

The multiple pathways through which policy can be enacted means that some of Trump’s policies will be more difficult to overturn than others. Many of Biden’s proposed changes are likely to be enacted through Executive Orders and Executive Memoranda, which can be carried out at the President’s discretion and without a check from other branches in government. One such change that Biden has promised to institute during his first few weeks in office is a 100-day moratorium on deportations for people living and working in the U.S..

This will give time for incoming Biden appointees and new bureaucracies to begin the process of sorting through an immense backlog of immigration court proceedings, and, crucially, will allow for an overhaul of ICE enforcement priorities away from their current strategy wherein all 11 million undocumented immigrants living in the U.S. are considered equal priorities for deportation without any consideration of criminal record.

Though it has been pitched by Biden’s campaign as a first step towards broader action, if enacted, this Executive Order would create an unprecedented attitude of clemency towards undocumented immigrants living in the country. And as evidenced by a document released by his campaign in which he commits to ending for-profit detention centers and claims that migrant detention will be used only as a ‘last resort,’ it appears that Biden hopes to extend greater dignity towards migrants who are yet to arrive at the southern border.

 

In Washington, D.C., demonstrators gather at the Supreme Court to protest a ruling that upheld the practice of expedited deportations. Source: ABC news.

 

President-elect Biden can also accomplish a great deal unilaterally with regard to Temporary Protected Status (TPS). This policy was originally signed into law in 1990, and serves to grant work permits and deportation protection to immigrants living in the U.S. who, due to natural or humanitarian disaster, would be unable to live safely in their countries of origin.

Despite the fact that its protections are more necessary than ever, the Trump administration has curtailed the number of countries which receive TPS. In direct response, President-elect Biden has promised to review every TPS decision made by the Trump administration and to extend benefits to those who have suffered under the Maduro regime in Venezuela. Such measures are within the purview of executive power, and can therefore be expected to be carried out quickly and without difficulty. 

Other Trump policies which the President-elect could reverse using Executive Order include the 2017 travel ban from seven predominately muslim countries as well as the ‘Public Charge’ rule, which grants immigration officials the power to deny entry to immigrants deemed likely to rely upon the American social safety net. Biden has also pledged to rescind the ‘National Emergency’ designation which permitted the reappropriation of congressional funds to the construction of a wall on the southern border.

Finally, the President-elect could take advantage of his role as chief law enforcement officer to delegate asylum officers to make asylum decisions at the southern border. Border Patrol, the organization currently responsible for making asylum decisions, is a law enforcement agency with a history of misconduct and abuse, so allocating this responsibility to asylum officers stands to improve the treatment of asylum-seekers and alleviate clogged immigration courts. 

While President-elect Biden will be able to accomplish a significant amount of governing with the stroke of a pen, the administrative task of actually implementing these changes will be fraught with challenges laid by an intransigent congress and the Trump administration’s crippling cuts to immigration bureaucracy. Biden’s promise to raise the annual refugee cap from the historic low of 15,000 set by President Trump for fiscal year 2021 to 125,000 (which he “seek[s] to raise over time”) stands as a prime example of this difficulty.

There is a backlog of over 120,000 refugees already at various points in the system as a result of the Trump administration’s ‘extreme vetting’ program, the sole purpose of which has been to bog down the immigration courts to allow as few refugees into the country as possible.

Trump has also dramatically cut funding for partnerships between the Federal government and nine CBOs which carry out much of the logistical work of refugee resettlement. Without reallocating funds towards these partnerships, which would require the approval of a preoccupied and ideologically divided Congress, the U.S. would simply not have the administrative capacity to welcome an increased number of refugees.

Moreover, in contrast to the speed at which President Trump’s Executive Orders can be overturned through a new administration’s unitary action, rescinding policies that have been instituted through the full legislative process will pose a much greater political challenge. 

The survival of Deferred Action for Childhood Arrivals (DACA), an Obama-era executive memo that has allowed 800,000 undocumented people who arrived in the U.S. during as a child to work legally and live without fear of deportation, is a prime example of the more substantive political maneuvering that will be required of Biden’s administration.

Despite the program enjoying both a 74% approval rating among Americans as well as a rare instance of bipartisan consensus, Trump has unsuccessfully worked since 2017 to eliminate the program by spuriously claiming it would attract further undocumented migration. 

DACA’s status as an executive memo rather than a law means the legal protections which grant 800,000 Americans the ability to enjoy productive and meaningful lives hang on the political whim of whoever occupies the White House. Congress is the only body in American politics with the authority to create legislation that can grant green cards.

In light of this, if President-elect Biden intends on ossifying protections for DREAMERS and giving them a path to citizenship as he has promised, he will need to pass comprehensive DACA legislation.

The prospects of passing such a bill or any comprehensive immigration reform in his first year as President are dubious. This is because Democrats have an interest in passing their version of an ideal coronavirus relief legislation, an issue that will take immense bipartisan deal-making.

With the current urgency surrounding coronavirus relief, Democrats may be hesitant to place significant political resources on structural immigration reform before a stimulus agreement is agreed upon. The fate of giving DREAMERS a path to citizenship, then, lies in the success and speed of the U.S.’ recovery from the coronavirus pandemic, and more generally in the extent to which bipartisanship can be achieved. 

President-elect Biden’s priorities on immigration governance are foreshadowed by the actions he took as Vice President. One of Biden’s most formidable diplomatic achievements as VP was helping to orchestrate the Alliance for Prosperity, an agreement with Guatemala, Honduras, and El Salvador which focused on strengthening the rule of law and access to the legal system in the Northern Triangle.

This agreement was created with the ultimate goal of reducing the need for Central American people to emigrate from their countries of origin, a strategy which, despite never having been demonstrably successful in this goal, continues to be a favorite among Democratic lawmakers.

Indeed, according to his campaign website, Biden would “renew a robust commitment to U.S. leadership in the region” by developing a four-year, $4 billion regional strategy to address migration drivers in Central America. This plan would include mobilizing private investment, addressing corruption, prioritizing poverty reduction and economic development, and improving security and the rule of law. 

 

Presidents Salvador Sánchez Cerén of El Salvador, Juan Orlando Hernández of Honduras, and Jimmy Morales of Guatemala pose for a photo with then-VP Biden in January of 2016 at a Northern Triangle Conference. Source: The Inter-American Dialogue.

 

Root-cause immigration strategies like the Alliance for Prosperity grant a few key benefits on which President-elect Biden and his administration may hope to capitalize. Reducing the amount of immigrants that seek asylum at the U.S.’ southern border, the goal of this agreement, could help to alleviate the existing immigration backlog. And after four years of public outrage and scandal as a result of Trump’s inhumane handling of border policing, Biden will likely be hesitant to take any action which may be perceived as cruel.

Therefore, root-cause oriented policies may be attractive in that they could allow the President-elect to externalize the issue, and in doing so, forestall the need to take any drastic measures at the border. Implementation of policies in this vein also allow Biden to avoid breaking the bedrock American principle of not turning people away at the border. 

Though there are challenges that lay ahead for President-elect Biden with regard to overturning Trump’s immigration policies, the opportunities are likewise significant. By rebuilding a shattered immigration bureaucracy and court system, taking bold unitary action through Executive Orders, implementing regional ‘root-cause’ diplomacy, and advocating for immigration reform bills in Congress, Biden has the opportunity to both reaffirm one of America’s core identities as a nation of immigrants and rectify its image on the world stage as a nation that honors and celebrates its diversity. 

 


Daniel Tepler | Bates College

My name is Daniel Tepler, from Bridgeport, CT. I am a rising Senior at Bates College where I study Politics, though I recently spent a semester in Mérida, Yucatán, Mexico where I studied Mexico-US relations at the Universidad Autónoma de Yucatán. I am currently completing virtual interviews with ex-US migrants in Oaxaca for a journal article which explores the role of return migration on local electoral politics in Mexican sending communities. By listening to immigrants with fascinating stories of ingenuity and resilience, I began to appreciate personal storytelling as a tool to highlight the human impact of national immigration politics. In my work for Latina Republic, I hope to highlight captivating narratives of immigrant contribution to society and, in doing so, engender greater compassion for immigrants living in the US.