What a Biden Administration Means for U.S. Immigration Policy

What a Biden Administration Means for U.S. Immigration Policy

President Donald Trump ran his first presidential campaign on the promise to overhaul U.S. immigration, and for the most part, he kept that promise. Month after month, from the very start of Trump’s term, immigration policy changed rapidly, from the Zero Tolerance policy that separated children from their parents, to record low caps on the number of refugees accepted by the U.S. each year.

President-elect Joe Biden has promised to undo most — if not all — of President Trump’s immigration reforms. He’s pledged, for instance, to immediately end the ban restricting foreigners from several Muslim-majority countries from entering the U.S. and reinstate protections from deportation for the roughly 650,000 people who arrived in the U.S. illegally as minors, known as Dreamers.

But after four years of sweeping changes, making some changes could prove more complicated, and could come through executive orders, presidential proclamations or possibly get stuck in a divided Congress, experts say. For instance, the Migrant Protection Protocols (MPP), otherwise known as “Remain in Mexico,” which has kept an estimated more than 67,000 asylum seekers in Mexico while their cases are adjudicated in the U.S., could prove difficult to reverse if the Biden Administration hopes to avoid a surge in migration to the southern border.

And while Biden’s campaign website promises to “modernize America’s immigration system,” immigration advocates and attorneys point out that the Obama-Biden Administration oversaw millions of deportations and an expansion of family detention, raising concerns about what the next four years will bring. Spokespeople from the Biden transition team and the Biden Campaign did not return TIME’s request for comment.

“The Trump Administration made immigration its signature issue,” says Tom Wong, an assistant professor of political science at the University of California San Diego. “What we’ll see from a Biden Administration within the first 100 days are those things that can be undone with the stroke of a pen… [Immigration] advocates need to be clear-eyed that a Biden Administration does not automatically bring about comprehensive immigration reform.”

Here is what Biden is promising, and what he’ll likely be able to deliver during his term.

The First 100 Days: DACA, the ‘Muslim Ban,’ Family Reunification, and the Wall

Among the changes Biden has promised to make during the first 100 days of his Administration is reinstating Deferred Action for Childhood Arrivals (DACA), an Obama-era executive action that Trump rescinded in 2017 which provides protection from deportation for an estimated 650,000 people who arrived in the U.S. illegally as children.

An estimated 56,000 people who have become eligible since Trump ended DACA would be able to submit applications if Biden reinstated the program, according to the Migration Policy Institute (MPI), a nonpartisan research organization. Biden has also promised to ensure that Dreamers are eligible for federal student aid, making higher education more accessible to those with limited financial options.

But without comprehensive immigration reform, which could overhaul and modernize the U.S. immigration system and create a pathway to citizenship for undocumented immigrants, this population will continue to live in uncertainty about their future in the U.S. Though Biden has laid out a lengthy ambitious plan for immigration, a divided Congress could mean barriers to policy changes like comprehensive immigration reform, which includes, among other things, a pathway to citizenship for the estimated 11 million undocumented immigrants in the U.S., including Dreamers.

Biden has also promised to rescind the so-called “Muslim ban” on his first day in office, putting an end to travel bans from 13 countries, many of which are home to Muslim-majority populations. Wong says ending the travel ban would not only be a change to U.S. policy, but would symbolize a change in the nation’s immigration priorities. “The Muslim ban was one of the first executive actions that the Trump Administration took that really made clear its stated preferences not just to limit immigration, but to limit certain kinds of immigration,” he says. “It wasn’t just about reducing overall numbers, it was about gaming the immigration system to allow a certain privileged few to enter, while excluding others.”

Biden has also promised that on the first day of his presidency, he will appoint a task force to track down the parents of 545 children who have still not been found three years after Trump’s Zero Tolerance Policy was enacted. (According NBC News, the number of children could be as high as 666). The task force may have their work cut out for them, as the Trump Administration never kept comprehensive contact information for the parents whose children were separated from them. For that reason, advocates and attorneys tell TIME, we may never actually know the total number of children who were separated from their parents under the policy.

The current estimate is that more than 5,500 were separated during Trump’s Zero Tolerance policy, and during a pilot program in El Paso, Texas, before the policy was implemented. Additional children were separated after a June 2018 executive order ending the practice. Many of the parents for these children have been located, either in the U.S. or abroad, and have been reunited, but for the 545 children whose parents have yet to be located, it is unclear whether they have been reunited.

While experts acknowledge the challenge facing the task force, they welcome the effort. “We certainly think that it’s a good idea to create a task force,” says Christie Turner-Herbas, Director of Special Programs at Kids in Need of Defense (KIND), a nonprofit aiding in the the family reunification process. “We still feel like we haven’t gotten full and complete records from every different kind of government agency that might have information about the parents or the children, or other contact information… Something like a task force could really assist with that effort.”

Read more: The U.S. Separated Families Decades Ago, Too. With 545 Migrant Children Missing Their Parents, That Moment Holds a Key Lesson

Another immediate reversal Biden plans to make is in relation Trump’s controversial border wall, which he promised during his 2016 campaign would be paid for by Mexico. That didn’t happen, but in February 2019, Trump declared a national emergency, allowing his administration to redirect Department of Defense money into the wall’s construction. About 400 miles of border wall went up in California, Arizona, New Mexico and Texas during the Trump Administration, which includes repairs to already existing barriers.

“There will not be another foot of wall constructed in my Administration,” Biden told NPR’s Lulu Garcia-Navarro during an August roundtable with the National Association of Hispanic Journalists.

Biden has promised end the national emergency declaration, immediately ending wall construction and cutting the funding, but has said he would not knock down the wall that was constructed during the Trump Administration

Asylum and ‘Remain in Mexico’

Despite Biden’s promises to end Trump’s “detrimental asylum policies,” experts say undoing Trump’s unprecedented asylum restrictions will be a balancing act. There are some steps the Biden Administration could take, for example, to end Trump’s “metering” policy, that limits the amount of people who can make an initial claim for asylum per day. Biden could also end Trump’s “expulsions” that have taken place since March 2020 as COVID-19 has spread across the U.S. and most of the world.

Read more: Migrants Stranded in Mexico Have 1 Year to File for Asylum. COVID-19 Is Making That Deadline Nearly Impossible

DHS’s expulsion rule allows U.S. Customs and Border Protection (CBP) to immediately remove anyone who crosses the border without authorization to their last country of transit without traditional processing or a chance to have their claims heard in court because of the risks posed by COVID-19. Since the rule was adopted in March, U.S. Border Patrol has conducted more than 197,000 expulsions, according to CBP data.

But the new Administration will likely be cautious about quickly ending the so-called “Remain in Mexico” program, which stipulates asylum seekers who claim asylum in the U.S. after entering from Mexico must wait in Mexico while their cases are heard, without first developing a plan to prevent a surge in migration at the U.S./Mexico border.

Read more: ‘They’re Screaming for Help.’ See Drawings From Children Stuck in Mexico as They Seek U.S. Asylum

Though Biden’s campaign pledge has been to “reassert America’s commitment to asylum-seekers and refugees,” there is evidence that migration flows to the U.S. can follow changes in U.S. immigration policy, according to MPI. For example, after Trump took office, there were record low flows of migration to the U.S. at first as people waited to see what Trump would do.

“If and when the future Biden Administration changes these restrictive [asylum] policies, it will have to do so with great care and planning and in a way that balances humanitarian concerns while avoiding a rush on the border that could overwhelm resources, and result in a renewed sense throughout the country that the border is out of control,” Jessica Bolter, an associate policy analyst at MPI, said during a Nov. 9 webinar.

The Biden Administration may also have to rethink guidance to immigration judges on how to adjudicate asylum cases. In 2014, a judge found that a woman escaping a domestic violence situation did qualify for asylum, setting a new precedent that was later overturned by then Attorney General Jeff Sessions in 2018. Sessions also decided that fleeing gang violence was not grounds for asylum. Biden is likely to return to Obama-era guidance which allowed for both claims, according to MPI, but even under Obama, the odds of being granted asylum in the U.S. were low.

Refugee caps

The U.S. was once considered the world leader on refugee protections, offering permanent resettlement to more people per year than any other country in the world combined, according to the American Immigration Council. The U.S. has been a leader in shaping resettlement programs since admitting more than one million refugees in the aftermath of World War Two. That ended abruptly during the Trump Administration, which lowered the cap on the number of refugees admitted into the U.S. each year. In October, The White House announced it was setting the fiscal year 2021 cap at 15,000 refugees, an all-time low.

Read more: I Oversaw DHS Refugee Affairs. Here Are 3 Ways the Trump Administration Is Trying to Mislead You

Biden has promised to increase the refugee admittance cap to 125,000 people — a higher ceiling than during the Obama-Biden Administration — “and seek to raise it over time commensurate with our responsibility, our values, and the unprecedented global need,” according to his campaign website. According to the UNHCR, at the end of 2019 there were an estimated 26 million refugees worldwide.

“Offering hope and safe haven to refugees is part of who we are as a country,” reads Biden’s campaign promise. “We cannot mobilize other countries to meet their humanitarian obligations if we are not ourselves upholding our cherished democratic values and firmly rejecting Trump’s nativist rhetoric and actions.”

ICE Detention and Deportations

The Obama-Biden Administration oversaw a record-breaking number of deportations, something immigration advocates and attorneys have stated is a concern for them as Biden prepares to take office. Already, some immigrant advocates and lawyers have criticized the Biden Administration for selecting Cecilia Muñoz as a member of the transition team, and have expressed their hopes that she does not become selected as an overseer of immigration policy. Muñoz, who was formally the head of the White House Domestic Policy Council during the Obama years, has been criticized for enabling the thousands of deportations that took place during those eight years.

According to Wong, who was also an advisor to the Obama White House Initiative on Asian Americans and Pacific Islanders and co-lead the immigration portfolio, the hardline on deportations and enforcement was a strategy calculation for the Obama Administration in order to garner Republican support for comprehensive immigration reform.

In the end, that strategy proved ineffective, Wong says, and instead led to 5.2 million people being deported from the U.S. (The Clinton Administration deported more than 12 million people, and the Bush Administration deported more than 10 million.)

Under Trump, enforcement of deportations expanded from Obama’s guidance of prioritizing undocumented immigrants who have been convicted of a felony or were considered a threat to national security and public safety, among other criteria, to include all undocumented immigrants.

Biden will also have to decide what to do about the U.S. Immigration and Customs Enforcement, or ICE. Though the agency has existed since 2003, it has faced widespread allegations of neglect and human rights violations under the Trump Administration. There are over 130 ICE facilities in the U.S., about 66 of which are run by private contractors, according to immigrant advocacy organization Freedom for Immigrants, which collects data on ICE facilities. A combination of Trump’s family separation policy and the number of deaths that have occurred in ICE custody—at least seven children have died—have fueled calls from immigration activists and some members of congress to shut ICE down.

Biden will also have to balance calls to “Abolish ICE” with what the Democratic party and voters want to see happen, Wong says.

Though Biden will likely not abolish ICE, he may take steps to end government partnerships with for-profit companies like GEO Group, CoreCivic and LaSalle Corrections which together run dozens of ICE facilities. He may also seek to shorten the length of time for those in detention—particularly for children—and improve the quality of health care provided at these facilities, a topic that recently came into the spotlight after a whistleblower accused a doctor at a privately run ICE facility of performing unwanted hysterectomies on detained women.

Read more: ‘The Objective Is to Save Lives.’ Inside the Effort to Get ICE Detainees Released During the Coronavirus Pandemic

At the end of the day, Sarah Pierce, another policy analyst at MPI, says the next four years may bring a change of pace in changes to immigration policy, as Biden navigates the COVID-19 pandemic and other high-priority domestic issues.

“During the Trump Administration, immigration was the top policy priority. They poured everything they had into enacting their agenda,” Pierce said during the Nov. 9 webinar. “I think under a Biden Administration we’re about to see the pace of immigration changes slow down significantly. There’s going to be a lot of questions about how much they can accomplish in the first 100 days, and really how much they can accomplish in four years.”

Write to Jasmine Aguilera at [email protected].

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