Analysis

Biden Win Sets Stage For End Of Trump Immigration Regime

Law360 (November 8, 2020, 5:22 PM EST) -- Former Vice President Joe Biden clinched enough votes on Saturday to win the U.S. presidency, paving the way for dismantling four years of the Trump administration's immigration restrictions. 

Biden's victory, which President Donald Trump's campaign is challenging in multiple lawsuits, marks the likely end of the current administration's restrictive immigration policies. However, while immigrants may win reprieve from the limits imposed under Trump, immigration advocates say they likely won't see instant relief from the tighter enforcement regime Trump built.

"It's a big sigh of relief [for immigration]," said Muzaffar Chishti, director of the nonpartisan Migration Policy Institute's New York office, "but with an understanding of how daunting it is to unwind Trump, and how difficult it may be to push him to go beyond what the Obama administration was able to do in his second term."

The stakes for immigrants this election were huge, with Biden and Trump offering essentially opposite immigration platforms and visions for American immigration. At a news conference in Arizona in October touting Trump's record on immigration, acting Department of Homeland Security chief Chad Wolf promised to "continue to strengthen and expand" immigration programs like "Remain in Mexico," which forces migrants to await their immigration court decisions outside the U.S. More than 65,000 migrants have been subject to the program so far, according to Wolf.

Wolf also stood by the administration's public health order barring asylum-seekers from making claims for protection at the southwest border, warning that an "unimaginable public health crisis" would result if the order were rescinded.

Biden has pledged in his campaign platform to reinstate much of the immigration system that Trump shut down, including by taking in more refugees, rescinding Trump's travel ban, barring for-profit immigration detention facilities and ending the "Remain in Mexico" program.

While some of Trump's executive actions will be easier for an incoming Biden administration to rescind, undoing formal regulations that have been finalized, like the administration's "public charge" rule making it harder for low-income immigrants to get green cards, could take months at least.

Even some of Trump's executive actions, such as his travel ban targeting foreign citizens trying to enter the U.S. from Muslim-majority nations, may not be able to be rescinded on Day One, Chishti said, noting that dismantling heightened vetting requirements at each consulate and providing new guidance "will take time and a lot of political capital."

An incoming Biden administration will also face pressure to settle court battles over Trump's immigration programs if he plans to rescind them. Letting these lawsuits run their course could set the stage for a precedent that would allow the executive branch to implement such programs in the future.

The U.S. Supreme Court, for instance, took up two cases in October regarding the executive's authority to divert congressionally appropriated funds to finance border wall construction and to force asylum-seekers who request protection on U.S. soil to return to Mexico and await the results of their U.S. immigration court proceedings there.

"It's imperative that he not set another precedent that will really, really do serious damage to the principle of non refoulement," said Yael Schacher, senior U.S. advocate at Refugees International, referring to the principle that governments should not send refugees back to danger.

If Biden lifts Trump's asylum restrictions, he may have to manage a potential surge of people seeking to cross the U.S.-Mexico border.

"There's just a lot of talk about this surge at the border that's going to happen. I don't know if it's true or not, but I'm worried about how he might react to that," Schacher said.

Schacher pointed to Biden's experience as vice president to former President Barack Obama, when the U.S. saw increasing numbers of migrant families seeking protection in 2014. Biden met with Central American leaders at the time and moved to infuse more money in the Northern Triangle region, which comprises Honduras, Guatemala and El Salvador, to improve security and, in theory, deter migration to the U.S.

"We need to disentangle any conditions on foreign aid from migration control policies," Schacher said. "I worry that Biden won't do that, because in 2014, they were very connected."

Trump also has another three months in office, and immigration advocates worry he could use the lame-duck period to push through a number of additional immigration restrictions and finalize more policies.

"Really until the day that he gets on the helicopter and leaves D.C., he's going to have 60 days — or however many days — to cause a lot of harm to the nation's immigration policies," said Ali Noorani, president and CEO of the National Immigration Forum, a pro-immigrant nonprofit. "It's Stephen Miller's last 70 days in power; he's not going to pass up that opportunity," he added, referring to the White House immigration adviser known for his restrictionist stance. 

And with millions of Americans unemployed and COVID-19 continuing to spread across the U.S., immigration policies may not be top of mind for the Biden administration, at least during his first year in office.

This sidelining of immigration issues was evident on the campaign trail. Trump ran on immigration in 2016, famously announcing his campaign for president by deriding Mexican immigrants as criminals, but the topic was not a central part of either candidate's campaign messaging this year.

"That's the unfortunate truth with which a Biden presidency … is going to be confronted: that the best ideas and best intentions on some very important public policy issues, they will not be [able] to do much in the initial stages of the presidency because of the pandemic," Chishti said.

Nonetheless, despite these constraints on Biden's immigration authorities, Chishti stressed that it will be important for Biden to make certain announcements, like his plans to raise the refugee ceiling, during his early days in office "to send a signal" to the world that there is a "new day in America."

"In many ways, the world is much more hungry for a new direction in America than we in America are," he said.

--Editing by Jack Karp and Emily Kokoll.

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

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