Analysis

Biden Immigration Plan Focuses On Undoing Trump Actions

Law360 (September 2, 2020, 10:36 PM EDT) -- If he wins in November, Democratic presidential nominee Joe Biden plans to focus his initial immigration policies on undoing the Trump administration's multitude of changes to the U.S. immigration system, likely by using the same executive action tools used to enact them.

Biden devotes much of his immigration platform to reversing President Donald Trump's restrictions on immigration, including the rollback of the Obama-era Deferred Action for Childhood Arrivals program, as well as hardline asylum policies and travel bans.

And while Biden's platform also details goals to achieve longer-term immigration measures through legislation, policy analysts say that any actions in the sphere taken during Biden's first 100 days in office will aim to bring the immigration system back to what it was before Trump was inaugurated in January 2017.

"It's going to take a while for the next administration to undo the harms of the Trump administration," said Marielena Hincapié, executive director of the National Immigration Law Center, who helped shape the campaign's immigration platform while serving as co-chair of the Biden-Sanders Unity Task Force.

But to start chipping away at them, she predicted a Biden administration would primarily look to executive orders and agency directives.

"There are a lot of very quick changes that can be made, not only on day one, but that we are likely to see throughout the first 100 days," Hincapié told Law360.

A 'Pro-Immigration Vision of America'

For immigrant communities, the stakes of the upcoming presidential election are high.

Carlos Guevara, associate director of immigration initiatives at UnidosUS and a counselor at the U.S. Department of Homeland Security during President Barack Obama's second term, said that the past four years under Trump have had a "lasting impact not only on the undocumented themselves, but their families."

"We often talk about how an entire generation of American kids is at risk," he said. "A lot is at stake, and a lot is riding on the election for the community."

Trump has made immigration a hallmark issue of his administration, launching his 2016 campaign by deriding Mexican immigrants as rapists and criminals and then issuing more than 400 changes to the immigration system, according to a count by the nonpartisan Migration Policy Institute.

In turn, the Biden campaign offers more than 6,500 words on its plans to counter Trump's immigration policies, with proposals ranging from taking in historic numbers of refugees, after Trump brought refugee admissions to a record low, to increasing the overall number of green cards.

"I think compared to the past, it's one of the most pro-immigration immigration platforms that we've seen from any party," said David Bier, an immigration policy analyst at the Cato Institute, a libertarian think tank.

As Hincapié put it, the unity task force members asked themselves, "What is the most pro-immigration vision of America Biden can win on?"

The addition of U.S. Sen. Kamala Harris, D-Calif., the former California attorney general and the daughter of immigrants from India and Jamaica, as Biden's running mate further boosts the campaign's interest in protecting immigrants.

"In her own personal trajectory, we see what the American story can mean," said Krish O'Mara Vignarajah, president and CEO of the Lutheran Immigration and Refugee Service. "In one generation, going from the daughter of two immigrants from opposite sides of the globe, to being the vice presidential nominee for a major party ticket is pretty incredible and inspiring."

While some of Harris' critics have raised concerns about her background as a prosecutor, immigrant advocates praise her record on immigration in the Senate, where she has put forth bills to block funding toward expanding immigration detention and to guarantee counsel for immigrants facing deportation.

Citing her Senate record, Guevara called Harris a "fierce champion on immigration for Latino communities."

Greg Chen, government relations director at the American Immigration Lawyers Association, also sees Harris as a voice for change.

"She as a senator has introduced many, many bills that address and seek to rescind or correct problems that the Trump administration has implemented," Chen said. "She has shown an ability to roll up her sleeves on immigration that few candidates have the interest or wherewithal to do."

But Harris has also shown less of a willingness to compromise during her tenure in Congress, Bier said.

In 2018, she was one of three Senate Democrats to vote against a bipartisan immigration bill that would have provided a path to citizenship for DACA recipients, known as Dreamers, in exchange for $25 billion in border security funding.

"I think that also shows a little bit more of a tendency to not want to compromise, and I think that tendency would push toward an exclusive focus on executive action, and not on legislative action," Bier said.

Expect Executive Actions

With Congress split on immigration, executive action in that area has become the norm since the Obama administration, Bier said, and a Biden administration would likely not be an exception.

O'Mara Vignarajah said this would likely be effective. "The good news for immigrant communities is that the Trump administration has largely bypassed Congress to implement its anti-immigrant and anti-immigration efforts, which means that a Biden administration could quickly and unilaterally rescind its executive actions," she said.

In his campaign platform, Biden pledged to rescind the so-called Muslim ban, which initially targeted noncitizens from Muslim-majority nations but has been more recently expanded to include countries in Africa and Southeast Asia, calling the action "morally wrong."

Since those bans — along with the visa bans issued this year during the coronavirus pandemic — were handed down by presidential proclamation, they could swiftly be reversed by a new president, legal analysts said.

Many of the myriad changes the Trump administration has made to curb the availability of asylum at the border could also be easily undone through executive action.

A Biden administration could quickly end the so-called Migrant Protection Protocols, established by former Homeland Security Secretary Kirstjen Nielsen, which have forced tens of thousands of asylum-seekers into dangerous Mexican border towns while they wait for their U.S. immigration proceedings to conclude.

In a departure from the Obama administration, which was scolded by a California federal judge for trying to detain migrant children with their parents in holding facilities, Obama's former vice president also promised to end family immigration detention and instead look to alternatives to detention, like case management programs, which help to ensure asylum-seekers show up to their immigration court dates.

The Biden platform takes its promise to curb immigration detention a step further by pledging to end for-profit detention, a system that has allowed private prison giants like CoreCivic and GEO Group to win lucrative government contracts to operate immigration detention facilities across the U.S. Those contractors have been accused of failing to provide basic hygiene supplies during the pandemic and of forcing detainees to work at the facilities for pennies.

"They have a lot of discretion in those areas to decide how they want to detain immigrants or not. Ending family detention — totally within their ability to do that," Bier said.

The campaign has also set its sights on rolling back a number of Trump administration regulations, including the public charge rule, which penalizes green card applicants found likely to need public assistance in the future. Another Trump administration proposal that would upend the U.S. asylum system and all but bar claims based on gender-based violence is nearly finalized.

While feasible, reversing finalized regulations takes time, requiring a new administration to go through the regulatory process again and provide a rationale for ending the old policy.

"It would take several months, probably a year or more to be able to undo a regulation through the full Administrative Procedure Act regulatory steps," Chen said.

Hincapié stressed that while undoing the Trump administration's restrictive policies would be a top priority for a Biden administration, any incoming administration must be thoughtful in doing so to ensure that the rescissions of Trump policies hold up in court, particularly as Trump's more than 200 judicial nominees reshape the bench.

"It's going to be really critical for a Biden-Harris administration, and whoever the next attorney general is, to make sure that all of those changes are being made very carefully, that we're dotting our I's, crossing T's, making sure that they are done on strong solid legal footing to avoid any potential litigation," she said.

Farther-Reaching Initiatives

The Biden campaign platform doesn't limit itself to executive actions and regulatory reversals, also delving into more ambitious objectives to alter the legal immigration system at a legislative level.

For instance, while Trump has issued orders curbing legal immigration in the name of protecting U.S. workers, Biden would expand immigration by exempting permanent residents' relatives from tight annual green card caps that create long backlogs and prolong family separations. He would also provide paths to permanent residency for DACA recipients, unauthorized farmworkers, and international students in science, technology, engineering or math Ph.D. programs.

He also said he would increase the number of green cards available for highly skilled immigrants and scrap the per-country green card limits, which have kept immigrants from countries like India and China waiting years for a green card to become available once they have been approved.

This idea was put forth in controversial legislation known as the Fairness for High-Skilled Immigrants Act, which easily passed the House last year but has been stalled in the Senate. Harris is a co-sponsor of that legislation.

But changes to green card caps and immigration programs creating paths to legal status would need to go through Congress, a tougher sell for a divided legislative body with a poor record of passing immigration reform bills, experts said.

Megan Essaheb, director of immigration advocacy at Asian Americans Advancing Justice-AAJC, said that her organization is very concerned about the plight of Indian citizens waiting in yearslong backlogs for a green card in "perpetual temporary status," sometimes for so long that their children become too old to get green cards through them.

"Those pieces are definitely harder," she said, but she wasn't completely pessimistic. "There's been a lot of push around lifting the caps. We'll see," she said.

And while many immigrant advocates praised the Biden-Harris immigration plan for its breadth and level of detail, some said they would have liked to see Biden go even further.

Aman Kapoor, president of Immigration Voice, a group that advocates for Indian citizens waiting in visa backlogs, said in a statement to Law360 that the current Biden-Harris platform "contains language appearing to indicate that other changes to the immigration system would need to be made" before the Fairness for High-Skilled Immigrants Act could pass.

"First priority of any administration ought [to] be to end discrimination, and thus equality ought to account as the highest priority. This is not even a matter of increase or decrease in immigration, this is a matter of basic human dignity," Kapoor said.

Essaheb said that her organization had concerns about the platform's language surrounding immigration enforcement within the U.S., which is reminiscent of the Obama-era enforcement priorities to target immigrants with criminal convictions for deportation over families. The Biden platform states that the Biden administration would "direct enforcement efforts toward threats to public safety."

Essaheb said that while prioritization is important, she still opposes targeting longtime U.S. permanent residents with criminal convictions for deportation.

"For many of them, the conviction is old, they've served their time, and we see it as a double punishment to deport them," she said.

A spokesperson for the Biden campaign didn't respond to requests for comment.

--Editing by Jill Coffey and Brian Baresch.

For a reprint of this article, please contact reprints@law360.com.

Hello! I'm Law360's automated support bot.

How can I help you today?

For example, you can type:
  • I forgot my password
  • I took a free trial but didn't get a verification email
  • How do I sign up for a newsletter?
Beta
Ask a question!