What A Biden/Harris Presidency Means For Immigration Policy:
Updated: Apr 10
10 Major Changes Immigration Experts See Coming
As the United States prepares for a new incoming presidential administration in January of 2021, immigration advocates are looking to what a Biden/Harris presidential administration might mean for their clients.
Here are ten ways immigration experts anticipate the Biden/Harris administration will change our immigration system—for the better.
1. Stop All Deportations (Temporarily)
President-Elect Biden will put a 100-day freeze on all deportations while his administration reviews how to best use the resources available to effectively enforce immigration laws in the U.S.
Although the Trump administration changed its deportation priorities in 2017 to indicate that anyone in the U.S. unlawfully was a target for deportation, the net effect of this policy was to flood the deportation system, creating more delays in the courts and effectively reducing the amount of deportations that could actually be accomplished.
Under Trump, arrests of non-citizens for immigration violations inside the U.S. increased by 30% (in 2017), but total deportations were less than 80% of Obama-era levels, even at each administration’s highest numbers.
Advocates have differing opinions about the role deportation should play in effective immigration policy, but the numbers are clear: the Obama administration’s approach allowed his government to more effectively remove those foreign nationals with criminal or repeat immigration violations on their records than the Trump administration’s policy to scrap the enforcement priorities altogether.
President Biden’s policy on deportation and removal has yet to be fleshed out, but experts anticipate it may mirror the Obama-era focus on enforcement priorities, meaning that many non-citizens who have been in the U.S. for long periods of time without any major criminal or immigration violations will be able to breathe a little easier, as they are unlikely to be caught up as “collateral arrests” when ICE is targeting others for enforcement.
2. Restore the Asylum Process and Increase Refugee Admissions
President Trump dramatically reduced the cap on refugee admissions in the U.S. to a mere 15,000 per year, which President-Elect Biden plans to increase to 125,000. Notably, refugee admissions and asylum seekers are not always the same; refugees are usually designated as such before they come to the U.S., whereas asylum seekers apply for asylum upon reaching the U.S. border or port of entry.
Under President Trump, former Attorney General Jeff Sessions issued controversial decisions that ended longstanding policy permitting victims of gang violence and domestic violence to apply for asylum. A Biden administration would likely reverse that 2018 decision, allowing applicants who can prove that their government was unwilling or unable to protect them from such violence the opportunity to apply for protection in the U.S.
The Biden/Harris administration also intends to withdraw from controversial agreements Trump entered into with Central American countries requiring asylum seekers fleeing their countries to first seek asylum in each country through which they travel on their way to the U.S. Advocates argue that these agreements not only flouted international human rights laws but also forced refugees and asylum seekers to avail themselves to broken asylum systems in countries largely facing the same structural inability to protect them from persecution as their homelands.
The President-Elect also plans to hire more immigration judges and asylum officers to make the asylum process more efficient and reduce the backlog that, for some of our clients at McGuire Law, is currently somewhere between five to ten years long.
Immigrant detention policies have also expanded dramatically under the Trump administration, including jailing non-violent asylum seekers and their children during the pendency of their application for asylum. Biden’s administration is likely to replace this policy with other case management measures, since almost 100% of asylum seekers who are released from detention still show up for their final hearings.
3. Reinstate DACA and Create a Pathway to Citizenship
The Deferred Action for Childhood Arrivals program, commonly known as DACA and whose beneficiaries have been called “Dreamers,” was a longstanding cornerstone of Obama-era immigration policy. Although the Trump administration tried to end DACA altogether, the program narrowly survived total shutdown in June of 2020 when the U.S. Supreme Court ruled that the Trump administration’s termination of the program was arbitrary and capricious.
In response to the Supreme Court decision, U.S. Citizenship and Immigration Services issued a memo in which it established that it would allow DACA recipients to continue renewing their status on a limited, one-year basis, but it would not accept new applications from anyone who had not already applied. DACA recipients are estimated to be around 700,000 individuals across the United States, many of whom are now parents, business owners, and recipients of college degrees.
A Biden/Harris administration is likely to reinstate DACA to its original 2012 iteration, allowing applicants who are otherwise eligible to apply for the first time, and issuing temporary authorization to live and work in the U.S. in two-year increments.
This reinstated policy may face its own series of legal challenges, but potential DACA recipients who have been watching the program anxiously may want to jump on the opportunity to apply for the first time under President-Elect Biden’s restored policy. Aspiring DACA applicants should make sure to consult an immigration expert before applying to assess the risks and benefits of filing a new application.
The long touted “pathway to citizenship” for DACA recipients still remains unclear, but it will likely require legislative action from Congress. Under the current law, DACA recipients do not qualify for green cards and subsequent citizenship unless they have some alternative pathway, such as a U.S. citizen immediate family member or a sponsoring employer. Biden’s plan is to nudge Congress toward new laws that open those benefits up directly to Dreamers, which is one of his less controversial proposals for legislative immigration reform.
4. Stop Separating Families
One of the Trump administration’s most notorious immigration policies was its family separation policy, which has been soundly criticized by everyone from U.S. Congressional Representatives to human rights advocates. This policy gave rise to the imagery commonly affiliated with the Trump immigration policies, depicting crying children locked in cages or torn from their desperate parents’ arms.
Although this policy is largely considered to have been halted, as of this writing, close to 700 children have yet to be reunited with the families from whom they were separated under the Trump “Zero Tolerance” policy. President-Elect Biden has committed to establishing a task force that would reunite these families, but the details of where and how the reunions would take place are still unclear.
5. End the “Muslim Ban”
Within his first 100 days in office, Biden has announced his plan to repeal the Trump executive order commonly known as the “Muslim Ban,” restricting entry to the U.S. for citizens of Myanmar/Burma, Eritrea, Kyrgystan, Nigeria, Sudan, Tanzania, Iran, Libya, Somalia, Syria, Yemen, North Korea, and Venezuela.
President-Elect Biden faces the task of walking the fine line between restoring dignity and fairness to our immigration system, allowing a healthy flow of migration consistent with our immigration laws, and protecting our country from the devastating spread of COVID-19. It remains to be seen exactly what this delicate balance will look like.
6. Give Temporary Protected Status to Certain Venezuelans and Restore Temporary Protected Status for Other Nationalities
Biden campaigned on assertions that Venezuelans fleeing the Maduro regime should be able to receive Temporary Protected Status, which comes with a work permit and a temporary period of authorized stay in the U.S. based on the local conditions in Venezuela.
The Biden campaign also committed to restore any TPS programs that were improperly terminated by the Trump administration. Although a federal court in the 9th Circuit allowed the termination of TPS protections back in September 2020 for citizens of El Salvador, Haiti, Nicaragua, and Sudan, the termination was in several instances based on contested or incomplete reports about the current conditions in those countries. This decision also allows TPS designations for Nepal and Honduras to wind down, leaving many thousands of individuals vulnerable to a termination of their lawful status this coming spring. It is estimated that approximately 300,000 individuals with 200,000 U.S. citizen children are affected by this policy, a mass exodus of whom could have a major impact on U.S. businesses and labor markets.
7. Abolish the “Remain in Mexico”/MPP Program
The Migrant Protection Protocols (the formal designation for the program), have sent more than 60,000 asylum seekers to northern Mexico border towns to await immigration court hearings in the U.S., forcing almost all of them to live in squalor for months in refugee border camps that are being ravaged by COVID-19 and intense weather conditions. Regardless of whether the asylum seekers were originally from Mexico, they were sent there to await their case outcome, making them particularly vulnerable to violent crime in the area.
The policy was a new development in 2019 designed to reduce the amount of individuals entering the U.S. to seek asylum, which they could previously do legally pursuant to longstanding legal policies. President-Elect Biden has indicated that he plans to terminate this MPP program and restore asylum procedures to their previous norm, which required applicants to attend an interview with a border officer to determine whether their asylum application was likely to be approved, and in positive cases, allow them to await the outcome of their case inside the U.S. with temporary employment authorization.
8. Undo the Unfair “Public Charge” Requirements
That is, assuming the court system doesn’t undo it first. The Trump version of the Public Charge rule, sometimes called the “wealth test,” implemented restrictive and prejudicial requirements that intending immigrants must demonstrate the financial means to support themselves and obtain health insurance in the U.S. Previously, prospective immigrants were already subject to scrutiny if they had received certain public benefits like food stamps, but the Trump rule took the wealth test to a much stricter and less fair level. Like many of the Trump administration’s immigration policies, its reworked Public Charge rule has been challenged in federal court. After a complex history of federal legal challenges, a recent federal court ruling from November of 2020 declared the policy to be an illegal violation of the Administrative Procedures Act. Soon after, the Trump administration appealed that finding, allowing it to continue to enforce the rule. Biden’s administration could drop the appeal, essentially leaving the federal judge’s order in place and terminating the new Public Charge requirement as illegally established. Alternatively, the new administration could re-define the Public Charge requirement to be more fair, but they would have to follow the rule-making procedure that the Trump rule was found to have violated, which could take six months or more.
9. Try to Fix a Broken System with New Legislation
As difficult as immigration reform has proven in Congress over the past 20 or so years, the Biden/Harris administration aspires to work together with Congress to pass much-needed legislation addressing the U.S.’s outdated immigration system. Whether or not this aspiration is realistic depends heavily on Congress’s new makeup, which is likely to be narrowly divided, and its legislative priorities in 2021.
10. Hit the Ground Running
All of President Trump’s immigration policy was enacted through the Executive, in executive orders, presidential proclamations, regulations, and policy memos—meaning that Congress did not play a role in any of the major immigration policy changes implemented from 2017 to 2020. This also means that a new Executive administration can undo and re-do all of the changes as soon as it can navigate the bureaucratic and administrative structures currently in place. One thing is for certain: a Biden/Harris administration will almost certainly jump right in.
“We can be a nation of immigrants, as well as a nation that is decent.”
— Joe Biden, CNN/Univision Debate in Washington, D.C.