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Immigration Under Biden: What to Expect in the First 100 Days

Posted by Matthew Green | Dec 03, 2020 | 0 Comments

Just as he promised in his 2016 campaign, President Trump brought great changes to United States immigration.  Immigration reform has been a central feature of his administration.  Yet, many of the policies enacted during his tenure, like the April executive order limiting immigration and the Third-Country Transit Asylum Ban, have been both controversial and heavily criticized. 

In this past 2020 campaign, President-elect Joe Biden has also offered a promise to transform the U.S. immigration system.  The approaches between Trump and Biden are opposing; in fact, Biden has made clear that he will “take urgent action to undo Trump's damage and reclaim America's value.”  This “urgent action” will begin within the first hundred days of the new administration.  Significant changes that can be expected in this benchmark period within a new administration include the ending of the separation of parents and children at the U.S.-Mexico border, terminating construction of the border wall, restoring the asylum system, officially reinstating DACA, addressing deportation policy and ICE detention, and overturning Trump's travel and refugee bans. Biden's extensive plan to “modernize America's immigration system” will take time to realize and will be complicated by issues such as the COVID-19 pandemic and a potentially divided congress. 

Family Reunification at the U.S.-Mexico Border

First on the list of the Biden campaign website is to “immediately reverse the Trump Administration's cruel and senseless policies that separate parents from their children at our border.”  As Time reports, the president-elect will appoint a task force on the first day of his presidency to “track down the parents of 545 children who have still not been found three years after Trump's Zero Tolerance Policy was enacted.” It is estimated that more than 5,500 families were separated as a result of the policy and that additional children were separated even after the June 2018 executive order that halted the practice. 

The Border Wall

In February 2019, Trump issued a proclamation which declared a "National Emergency Concerning the Southern Border of the United States." This  allowed his administration to redirect money from the Department of Defense toward the construction of a wall between the U.S.-Mexico Border.  Approximately 400 miles of wall went up in California, Arizona, New Mexico, and Texas.

“There will not be another foot of wall constructed in my Administration,” Biden told NPR's Lulu Garcia-Navarro.  He will instead end the National Emergency declaration, which will thereby halt construction and cut funding.  The wall that has already been constructed will not come down. 

Restoration of the Asylum System

Biden plans to end Trump's “detrimental” asylum policies and the mismanagement of the asylum system itself.  This will involve the reversal of policies like the Migrant Protection Protocols (MPP), also known as the Remain in Mexico policy, which requires migrants to stay in Mexico as they await their U.S. immigration court hearings.  According to the Guardian, MPP “forced more than 65,000 asylum-seekers to wait in Mexico—in squalid improvised refugee camps—while their cases are heard in U.S. immigration courts.”  In addition, Biden promises to overturn Trump's policy of “metering,” which limits the number of people who file an initial claim for asylum each day.  Instead, resources will be directed to ensure asylum applications are processed “fairly and efficiently.”

DACA

The Deferred Action for Childhood Arrivals (DACA) program was enacted by Obama in 2012 with the purpose of protecting “Dreamers,” undocumented immigrants brought to the United States as children.  It has faced a series of ups and downs, beginning in 2017 when Trump rescinded the program. The Supreme Court blocked his attempt in June 2020 but this was largely undone by a memorandum issued by Chad Wolf, Acting Secretary of the Department of Homeland Security.  In our previous blog post, we discuss the most recent ruling, in which a federal judge found Wolf to have been unlawfully appointed. By extension, his July suspension of DACA is also unlawful. 

The Biden administration will fully reinstate the DACA program and offer it permanent protection.  Furthermore, Biden has promised federal student aid to “Dreamers,” including access to community college without debt. 

Deportations 

President Trump directed his administration to deport all undocumented immigrants, regardless of crimes committed. The Biden campaign website states that it will direct enforcement efforts towards threats to public safety and national security.  This is echoed by the Associated Press, which has reported that Biden is “expected return to criteria similar to what Obama adopted toward the end of his tenure, largely limiting deportations to people with serious criminal records in the United States.”  Because the Obama-Biden Administration saw to a record number of deportations, this is something of concern to immigration advocates. These concerns are heightened by the inclusion of Cecilia Muñoz as a member of Biden's transition team; Muñoz, who served as Obama's head of the White House Domestic Policy Council, has been criticized for enabling the mass amounts of deportations that occurred during those eight years.

Under Trump, Immigration and Customs Enforcement (ICE), whose Enforcement and Removal Operations division oversees deportation, has been accused of neglect and human rights violations.  By contrast, Biden has outlined that his administration will ensure that ICE and Customs and Border Protection (CBP) employees “abide by professional standards and are held accountable for inhumane treatment.” 

Travel and Refugee Bans Refugee Caps

Although the United States was once seen as a world leader on refugee protections, the Trump Administration set the 2021 fiscal year cap at 15,000—an all-time low. Under President-elect Biden, the refugee admittance cap will be increased to 125,000.

Biden will also rescind the travel and refugee bans, commonly referred to as the “Muslim bans” because they originally targeted citizens from majority Muslim nations considered security threats.  The latest order, as listed by Voice of America, includes Myanmar (Burma), Eritrea, Kyrgyzstan, Nigeria, Sudan, Tanzania, Iran, Libya, Somalia, Syria and Yemen, along with Venezuela and North Korea.   

Issues

Although Biden has an extensive plan to reform the U.S. immigration system, he is likely to face a divided Congress that could make it difficult to fully realize.  In theory, Biden could issue executive orders to enact some policies and rescind those made by President Trump. In implementing such a mechanism, however, the issue of protecting executive power arises. Alongside this, the ongoing pandemic must be considered as a complicating factor. The Trump Administration has been criticized for using COVID-19 as an excuse to enact stricter immigration protocols (see “Understanding Trump's Executive Order Limiting Immigration” and “Foreign Students Face Deportation if Their Universities Go Online-Only” to read more).  Immigration is far from a simple matter; it is important to remember that it will take effort and time for the Biden Administration to disentangle all of the harsh policies designed and upheld by Trump.

About the Author

Matthew Green

Managing Attorney. Green | Evans-Schroeder (formerly Law Offices of Matthew H. Green) focuses on the aggressive defense of immigrants. A native of Arizona, Mr. Green understands the difficulties that immigrants and families of immigrants face when a loved one is charged with a crime. He knows how frightening it can be for some...

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Green Evans-Schroeder is focused on the aggressive defense of immigrants.

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