EAH Immigration Blog

High Hopes and Significant Challenges for Biden Administration on Immigration Policy

In a recent article in the Washington Post, readers were asked for the one word that sums up 2020. “Exhausting” was one of the top three words. Exhausting (and relentless, too) is an apt description of the four-year long frontal attack on immigration law, policy, and procedu res imposed by the Trump Administration. There have been some 400 changes that foreign nationals and their advocates have had to navigate, from changes that smack at the fundamental core of what it means to be America to the mundane. Here are just a few:

  • restrictions on asylum
  • historical low refugee-admittance rates
  • an unprecedented remain-in-Mexico policy for asylum seekers
  • restrictive bans on predominantly Muslim countries
  • an attempt to end deferred action for childhood arrivals (DACA)
  • refusal to continue Temporary Status Protections (TPS)
  • implementation of public charge policies that seek to deter legal immigration to the United States
  • child-parent separations at the U.S.-Mexican border
  • use of national emergency funds to build a border war
  • attacks on temporary skilled worker visa programs
  • attempts to change foreign students’ and others’ duration of status
  • draconian and cruel internal enforcement priorities
  • imposition of an interview requirement on employment-based immigrants.

President-elect Biden’s immigration plan sets to undue many of Trump’s horrific immigration policies. But the new administration will face many logistical and political hurdles in reforming these and other immigration policies that the Trump Administration put into place. It will be exhausting. And liberating, too. Among the specific promises included are ending child separation at the border, ending remain-in-Mexico protocols, providing protection of DACA recipients through executive orders, rescinding “Muslim bans,” and ending the public-charge policies. The plan also calls for pathways to citizenship for TPS recipients, streamlining naturalization, providing expansion of parole-in-place for military families, restoration of former ICE enforcement policies, and ending prolonged immigration detention. And, there are plans for comprehensive immigration reform that seek to address the status of the approximately 11 million undocumented foreign nationals currently residing in the United States.

One promising, immediate sign on the immigration horizon is Biden’s announcement to nominate Alejandro Mayorkas as Secretary of Homeland Security. Mayorkas would become the first Latino to hold the position, and is an immigrant himself. As the director of USCIS during the Obama presidency, Mayorkas oversaw the implementation of the DACA program, which was up and running only 60 days after being announced.

Some immigration advocates have called for far-reaching policies that will likely go unrealized, such as returning deportees to the United States, stopping detention of asylum-seekers, and using executive powers to protect more undocumented immigrants. Immigration enforcement will likely be a source of contention, given that the American people are conflicted on this issue. (President Obama’s record on deportation was abysmal. Obama deported some 400,000 people annually midway through his Administration — more than any president, including Trump and Bush.)

Many systemic changes to improve fairness in immigration court is another area in desperate need of attention but are unlikely in a divided government. Unless the Democrats win both special elections in Georgia, they will continue to be the minority party in the Senate, and Biden will struggle to pass progressive legislation. Even with control of Congress, the Democratic majority will remain extremely slim in both houses, limiting the possibility for far-reaching progressive goals. Other changes, such as recognizing a constitutional right to counsel in removal proceedings or restructuring immigration courts so that they are independent from political branches of government, would face even greater legal and political hurdles. Furthermore, with over a quarter of the federal judiciary consisting of Trump appointees, including one-third of the Supreme Court, there will likely be a pushback from the judicial branch on Biden’s legislative agenda and executive actions.

The American Immigration Lawyers Association (AILA) put forth its recommendations, calling on the Biden Administration to take up 12 initiatives: (1) Proclaim a message of welcome; (2) Ensure fairness, efficiency, and accountability in the legal immigration system; (3) Restore integrity, fairness, and efficiency to the immigration courts; (4) Ensure the fair and humane treatment of migrants at the border; (5) Restore asylum law and protections for victims of crime; (6) Guarantee legal assistance and counsel; (7) End inhumane detention; (8) Set a vision for immigration enforcement that is fair, humane, and effective; (9) Improve Customs and Border Protection adjudications and processing at ports of entry; (10) Protect undocumented people and others with deep ties to America; (11) Reform employment-based and family-based visa programs; and (12) Ensure that the State Department has the necessary resources to provide fair and efficient consular processing.

While AILA’s “Vision for America as a Welcoming Nation” is a noble call, what can be done first and tangibly? Here are some immediate actions we hope a President Biden implements on Day One or Day Two:

  • End the most egregious proclamations, namely dealing with Muslims, asylees, and work visa prohibitions;
  • Reverse course on family separations at the border, DACA, enforcement and removals of TPS; and
  • Prioritize who should be the subject of enforcement actions, such as hardened criminals and violent offenders.

 While fixing the broken and now-draconian immigration system will take time, much can be improved with good leadership and initiative coming from the White House. Millions of people are depending on it.

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