WASHINGTON — President-elect Joe Biden has vowed to reverse four years of President Donald Trump’s immigration crackdowns, but that may take a while even if he uses executive orders to undo Trump’s executive orders.
In some of his first actions as president, Trump moved to limit the number of immigrants coming to the United States, both legally and illegally. His flurry of more than 400 immigration-related executive orders separated families at the border, placed children in custody, banned immigrants from Muslim-majority countries from entering the U.S. and diverted defense money to start building a wall along the Southern border. A historic low number of 15,000 refugees were allowed into the U.S., and a historic high number of 267,000 immigrants were deported by Immigration and Customs Enforcement.
Biden could use executive orders as quickly as Trump did to end family separations at the border, rescind the “remain in Mexico” policy for asylum seekers, reinstate the Deferred Action for Childhood Arrivals program, stop border wall construction and rescind the so called “Muslim ban” on travel to the U.S. Other promises, such as creating a pathway to citizenship for 11 million immigrants living in the country illegally, increasing the number of visas granted and expanding the annual refugee admissions cap from 15,000 to 125,000, will take time and the cooperation of Congress. Control of the Senate depends on the outcome of two Jan. 5 special elections in Georgia. And the Democrats’ hold on the House will be slimmer than it was before the election.
Ira Mehlman, media director at the Federation for American Immigration Reform, which believes in limiting immigration, said Trump’s executive actions have increased border security, and Biden’s proposals would allow immigrants to cross the border with impunity.
Admitting more immigrants into the U.S. will exacerbate the pandemic-related economic crisis, Mehlman said. “There’s no reason why we should allow people to remain here endlessly,” he said.
He also said criminals would be able to enter the country more easily. “The overwhelming majority of people who are going to be pouring across the border, under the conditions that are likely to happen under the Biden administration, don’t pose a threat, but it only takes a few people to cause an awful lot of damage, as we have learned from bitter experience,” Mehlman said.
Theresa Brown, director of immigration at the Bipartisan Policy Center, expects most of Trump’s immigration-related executive orders to be undone using executive orders. But she said there are operational implications that should be addressed before Biden acts.
While Irena Sullivan, senior immigration policy counsel at Tahirih Justice Center, said Biden’s win is “an opportunity to reexamine the [immigration] system and rebuild it in new ways that work better.”
Here’s how key immigration issues are likely to play out in the Biden administration:
“Build the wall!” Trump supporters repeatedly chanted at his rallies. A signature promise of Trump’s 2016 campaign was building what he called a “big, beautiful wall,” a concrete barrier between the U.S. and Mexico that Trump said would stop unauthorized immigrants, whom he called “criminals, drug dealers, rapists,” from crossing the border. According to Center for Migration Studies of New York, however, 62% of immigrants living in the country illegally overstayed their legal visas rather than coming across the border illegally.
About 402 miles of border wall have been constructed, according to Customs and Border Protection, costing over $15 billion. Critics of the border wall have said that it’s a symbolic move, rather than an effective method of deterring border crossings. Biden has said he will immediately stop border wall construction during his first 100 days in office, but Brown said it’s unclear whether he will take down what’s already been built or whether he will put the money Trump diverted from the Pentagon back into the Defense Department’s budget.
“There are many more effective and efficient ways to preserve border integrity and security than physical barriers,” said Xiao Wang, CEO of Boundless Immigration, a technology startup that helps immigrants attain green cards and become citizens. “And I’m optimistic that the administration as a whole will explore using technology in new ways.”
Biden said he will enforce border security by improving screening infrastructure at ports of entry using technology such as cameras, sensors, X-ray machines and fixed towers.
Under Trump’s “zero tolerance” policy, in place from April to June 2018, immigration officers separated children from parents when they entered the U.S. illegally. Adults were imprisoned or deported, while children were kept in detention centers. The American Civil Liberties Union estimates that 5,400 children have been separated from their parents since Trump took office. Biden, calling family separation “cruel and senseless,” has said that he will create a task force in his first 100 days in office for the reunification of the 545 children whose parents have not yet been found.
“Given the long-term permanent harm that we caused to these children and parents, official responsibility of the United States also has to include some amounts of restitution to ensure that these families have the services they need in order to begin to heal,” said Tom Jawetz, vice president of immigration policy at the Center for American Progress, an independent nonpartisan policy institute.
Refugee and Asylum Policies
Trump set the U.S. refugee admissions cap at 15,000 for fiscal 2021, lower than any caps since the refugee resettlement program’s inception in 1980. In comparison, President Barack Obama admitted roughly 90,000 refugees during fiscal 2016. Biden has said he will admit 125,000 refugees, which he could do through an executive order, though he hasn’t said when he will do so.
“One of the things the administration will have to contend with is that the systems for resettling refugees have been sort of broken down to a degree in the past few years,” said Dan Gordon, vice president of communications at the National Immigration Forum. “Some of that infrastructure will need to be rebuilt, reestablished and strengthened.”
Dan Wallace, director of the New American Economy, immigration research and advocacy organization, agreed, saying that many refugee resettlement agencies, which receive funding based on the number of refugees they resettle, had to reduce staff.
Biden has said that he will end the Migrant Protection Protocols, also known as the “Remain in Mexico” policy established in 2019, whereby asylum seekers applying for admission to the U.S. from Mexico may be returned to Mexico, where they wait for the duration of their immigration proceedings. More than 60,000 asylum seekers have been forced to return to Mexico, with 24,500 cases pending as of September, and a resulting 1,100 incidents of rape, murder, kidnapping, torture and assault, according to Human Rights First.
Most of those seeking asylum don’t have access to lawyers, said Victoria Carmona, Supervisory Attorney of the Immigration Clinic at the Chicago-Kent College of Law.
Carmona called MPP an “artificial crisis.” She’s seen the asylum process take a year and a half for some of her clients.
Biden intends to protect asylum seekers fleeing persecution from these unsafe conditions, saying during the Oct. 22 presidential debate that they were “sitting in squalor.” But it’s unclear what the process will look like for migrants waiting in Mexico, according to the Migration Policy Institute.
Biden also has promised to end Trump’s metering policy, which limits the number of asylum applications accepted per day, by doubling the number of immigration judges and increasing the number of asylum officers at the border. The backlog of immigration cases reached a historic high of over 1 million as of August 2019, according to the Migration Policy Institute.
Deferred Action for Childhood Arrivals and Temporary Protected Status
DACA was established by Obama in 2012 to provide temporary work permits to immigrants brought to the U.S. illegally as children and to protect them from deportation. Over 800,000 “Dreamers” have signed up since the program began.
In September 2017, Trump announced that he would terminate DACA. Despite a Supreme Court ruling in June that DACA must remain in place, Chad Wolf, acting secretary of homeland security, directed the department to reject any new DACA applications. Biden said he will reinstate DACA in his first 100 days, likely by issuing a memorandum. DACA recipients will contribute about $460.3 billion to the national GDP over the next decade, estimated the left-leaning Center for American Progress.
“DACA has been such an important way for young adults to feed their family and to put a roof over their head,” said Bruna Sollod, DACA recipient and communications director at United We Dream.
Biden has also said he will reinstate Temporary Protected Status after a federal appeals court decided in September that Trump can phase out the provision for 411,000 immigrants living in the U.S. under TPS. TPS grants protection from deportation to immigrants from 10 countries afflicted by natural disasters, war, famine or other catastrophes.
Kate Voigt, American Immigration Lawyers Association senior associate director of government relations, said uncertainty surrounding the state of TPS and DACA protections has left those covered by the programs in an “untenable state of limbo,” making it harder to plan their work and family lives.
The president-elect has promised to create a pathway to citizenship for 11 million immigrants living in the U.S. illegally by sending an immigration bill to Congress on day one. But passing that legislation will require the cooperation of Republicans in the House and Senate.
“There are ways for Republicans and Democrats to come together to make sure that the process – if there’s to be a legalization and eventual citizenship process – is fair to American workers as well as to immigrants,” said Gordon of the National Immigration Forum.
During his first week in office, Trump fulfilled his campaign promise of a “total and complete shutdown of Muslims from entering the United States.” He signed an executive order that banned immigrants from seven predominantly Muslim countries from visiting the country for 90 days. Though two versions of the travel ban were rejected by federal judges, Trump’s third attempt, signed in September 2017, remains in effect today.
Biden said he will sign an executive order on his first day in the White House terminating the travel ban. Joanne Lin, national director of advocacy and government relations at Amnesty International said, however, that long-term reform should come in the form of legislation. She said Biden should push for Congress to pass a measure approved by the House in July that would undo the Muslim ban, prohibit any president from discriminating on the basis of religion, rescind initiatives to unlawfully limit the right to seek asylum at the U.S. border, remove impediments placed on refugees and ensure that the Department of Homeland Security consults with Congress.
It “would send a clear message that the U.S. welcomes and protects people from all faiths and backgrounds,” Lin said.
Green Cards and Visas
The Trump administration’s public charge rule, a wealth test that allows officials to deny green cards to those who need public assistance like food stamps and housing vouchers, was planned to take effect last Feb. 24. A federal judge struck down the rule in November, but that decision could be appealed. Calling the rule “discriminatory,” Biden said he will rescind the rule in his first 100 days as president. The Bipartisan Policy Center’s Brown said that Biden can easily do so by not defending the rule in court. If the courts rule against the regulation, it is vacated, Brown said.
Biden has also said he will work with Congress to increase the number of employment-based visas, currently at 140,000 each year, and to ensure immigrant workers are guarded against labor violations like wage cuts and wage theft.
“That’s a conversation that has been tiptoed around for too long,” said Salvador Sarmiento, national campaign coordinator at the National Day Laborer Organizing Network. “The refusal to allow this enormous population of people to regularize their status is in large part responsible for allowing these widespread workplace violations to continue.”
Five days after his inauguration, Trump signed an executive order allowing Immigration and Customs Enforcement officers to detain any immigrants entering the country illegally rather than targeting only those with criminal records as in the Obama era. The largest raid of his presidency was a raid of seven Mississippi chicken processing plants in August 2019, leading to the arrest of 680 undocumented workers.
Deportations increased from 235,413 in 2015 to 267,258 in 2019. Biden intends to quickly issue a 100-day freeze on deportations. Biden has committed to signing an executive order prioritizing detainment of immigrants convicted of a serious criminal offense and ending workplace raids.
Biden said that he will increase training and oversight of ICE and Customs and Border Protection activities.
Immigrant advocacy groups, like United We Dream, want Biden to abolish ICE, believing reform of the agency is impossible. “These agencies are rooted in evil, they’re rooted in the idea that a human being is not worthy of living in this country,” Sollod said. Alternatively, funding for ICE and CPB should be cut, said United We Dream’s Sollod.
As of August 2016, about three-quarters of the immigration detainee population was held in private prisons. CoreCivic, Inc. and GEO Group, Inc., which collectively manage over half of private prisons in the U.S., earned a combined revenue of over $4 billion in fiscal 2017. About 19 new private prisons have opened since Trump signed an executive order in January 2017 ordering Homeland Security to increase immigration detention centers.
“No business should profit from the suffering of desperate people fleeing violence,” Biden said. He can sign an executive order rescinding Trump’s order and banning the opening of private detention centers, but ending existing contracts would require congressional approval, Brown said.
Biden has also said that he will end prolonged detention using alternatives like nonprofit case management. “Community programs can be put in place to ensure appearance in immigration court and that not all immigrants need to be detained,” Sullivan said.