As in many other areas of policy, the Biden administration has quickly and emphatically signaled it will take a vastly different approach to the rights of immigrants than that of the Trump administration. But the extent and pace of the administration’s implementation of this sea change is hampered both by the sheer magnitude of the issues involved and the sometimes poisonous history underlying U.S. immigration policy. And in certain instances, as illustrated by last week’s flip-flopping on refugees, the administration appears to be standing in its own way, even on actions it could take unilaterally and immediately.

During his first weeks in office, President Joe Biden issued a number of Executive Orders aimed at dismantling the harmful and punitive policies adopted by Trump. These steps included establishing a Task Force on the Reunification of Families separated under Trump’s border policy, rescinding the discriminatory “Muslim Ban,” ending the so-called Migrant Protection Protocols that kept many asylum seekers languishing in camps on the Mexico side of the border, trying to reduce detention and reprioritize deportations, and sending a sweeping immigration overhaul bill to Congress that would provide a path to citizenship for millions. Biden also has promised a wide-ranging policy review that could rescind more than 20 Trump-era regulatory changes related to immigration that are being litigated in court and recommend ways to remove barriers erected during the Trump administration. Many of those barriers were created through agency-level policy changes that were never even made public.

The Biden administration’s more human rights-based approach to migration is reflected in the U.S. response (see “Addendum 1” under “Outcome of the Review”) to recommendations made in the U.N. Human Rights Council’s Universal Periodic Review (UPR) process, both through U.S. acceptance of quite a few of those recommendations and in the administration’s oral presentation to the council at the recent adoption of the UPR outcome. The U.S. statement made clear that immigrants are welcome in the United States:

The President’s strategy is centered on the basic premise that our country is safer, stronger, and more prosperous with a fair, safe, and orderly immigration system that welcomes immigrants, keeps families together, and allows everyone – both newly arrived immigrants and people who have lived here for generations – to fully contribute to our country.

In its written response, the United States accepted recommendations from numerous countries to strengthen protections for the rights of immigrants, end the “zero tolerance” policy for unauthorized presence in the United States, ensure proper conditions for those who are detained, and create adequate mechanisms to deal with the flow of migrants. It pointed to executive actions already taken by Biden to undo some of the practices criticized by other U.N. member countries.

The U.S. delegation’s oral presentation strongly denounced the punitive immigration policies of the Trump administration, especially family separation, and promised “to reinstate the safe and orderly reception and processing of arriving migrants and asylum seekers.”

Limitations – External and Self-Imposed

While these are positive signals, a number of limitations (including decades of anti-immigrant policies, an outdated immigration framework, and bloated agency enforcement budgets) will hamper the speed and ability of the Biden White House to undo the damage done by Trump and to pave the way for the full protection of immigrants’ rights. There has already been pushback from members of Congress, local leaders, and other key players. For example, Immigration and Customs Enforcement (ICE) officials charged with implementing immigration policies defied the White House by continuing to carry out deportations that conflicted with new policies, and a federal judge in Texas issued a preliminary injunction in February, which remains in effect, striking down Biden’s attempt to pause deportations. The new administration is also confronting a substantial backlog — created both by Trump policies designed to cause logjams as well as by general inefficiencies – of people who have either been detained or kept waiting for their cases to be processed. Even with the best intentions, this backlog cannot be eliminated overnight.

These challenges resulted in some of the U.S. responses to the UPR recommendations painting a picture of the current situation that appears much more positive than the reality on the ground. For example, in response to recommendations about conditions of confinement for people who are detained, especially for children, the U.S. stated that “[w]hen non-citizen children are placed in government custody, we ensure they are placed in the least restrictive setting and treated in a safe, dignified, and secure manner.” While this may well represent the policy — and the intentions — of the Biden administration, it has not yet been translated into reality for many children who remain in custody in crowded detention facilities and even in Border Patrol stations.

With regard to recommendations to ensure that human rights defenders who act on behalf of immigrant rights be allowed to work freely and not be subjected to punitive measures such as detention or deportation, the United States stated that it “does not target immigrants, including unlawfully present non-citizens, based on advocacy positions they hold or state.” While this statement, again, likely reflects the policy of the Biden administration, such practices were indeed taking place in November 2020, when the recommendations were made, and at least until the Trump administration left office in January 2021. The Trump administration made a practice of arresting and deporting immigration activists. Given the resistance Biden is encountering from ICE and Border Patrol agents, such actions are proving hard to overcome, particularly given the Texas injunction barring Biden’s attempt to pause deportations.

The limitations of Biden’s ability to clear away some barriers for immigrants was also reflected in the partial U.S. acceptance of a number of recommendations. In response to recommendations to review administrative measures that criminalize migrants and to stop separating families and incarcerating migrants, the United States demurred, stating that in some limited circumstances (“rare circumstances” with regard to separating children from their families), U.S. law would require doing so. Somewhat disturbingly, in response to a recommendation to “prioritize the family unit and safeguard the best interests of the child,” the United States stated that while it “considers the best interests of the child in all placement decisions,” it would only partially accept the recommendation “because the best interests of a child is one factor – not the only factor – in determinations by immigration judges.”

In fact, though, many of the factors considered by immigration judges or raised by ICE counsel, who are administrative employees of the executive branch of the U.S. government, are often within the control of the White House and its Attorney General. Just as Trump-appointed Attorney General Jeff Sessions issued instructions to the immigration courts that changed longstanding precedents on asylum eligibility, Biden’s newly confirmed Attorney General Merrick Garland has the ability to instruct immigration judges to “safeguard the best interests of the child” in cases that come before them. For example, even where other provisions of the Immigration and Nationality Act (INA) would prevent an immigration judge from granting bond for a detained immigrant, ICE — also under the executive branch — nevertheless retains the authority to release a person on parole, something the Biden administration could direct them to do to safeguard the best interests of the child or in other circumstances.

Concrete Steps

In short, it is within the administration’s power to take bold action to protect people and comply with international law and best practices. A few steps that must be taken immediately include the following:

  • Ensure that all unaccompanied minors and detained asylum seekers have meaningful access to adequate legal counsel at every stage of the process, and endeavor to ensure government-appointed counsel in the long-term to those who cannot afford it. Currently, there is no right to government-appointed counsel for persons in immigration proceedings under U.S. law. There have been a plethora of news reports in recent years about toddlers appearing in immigration court with no one but a language interpreter to help them. This is, of course, a morally unacceptable situation. As the U.N. General Assembly stated in Principle 17 of the Body of Principles for the Protection of All Persons Under Any Form of Detention and Imprisonment, “a detained person shall be entitled to have the assistance of a legal counsel.” Article 13 of the International Covenant on Civil and Political Rights (ICCPR), of which the U.S. is a party, provides that all persons who are in the territory of a State Party lawfully – and seeking asylum is lawful – are entitled to be represented in deportation proceedings. Moreover, pursuant to Article 14 of the ICCPR, any person charged with a criminal offense is entitled to legal assistance. Although immigration proceedings are not themselves criminal in nature, the consequences are incredibly serious, including exile, return to serious harms, or permanent separation from family. In addition, many people, including asylum seekers, are detained during removal proceedings, often under mandatory detention provisions that prohibit release. People who face such consequences and are held in prolonged detention are entitled to full due process protections. 
  • Revoke proposed policies and regulations that contravene the government’s obligation not to return people to situations where they face torture, ill-treatment, or other irreparable harm, and provide training regarding such obligations to all Border Patrol and ICE officers. The United States is a party to several international conventions that contain the obligation of non-refoulement— a prohibition on returning people to a country in which they are likely to be subjected to torture or persecution. These include the Refugee Convention and its Protocol, as well as the Convention Against Torture (CAT). The guarantee of the rights to life and freedom from torture under the ICCPR are also applicable. Moreover, the concept of non-refoulement is considered a universally binding peremptory international law norm that applies to all states regardless of their treaty ratifications. A State must respect, protect, and fulfill obligations under treaties to which it is party as well as obligations under peremptory international law norms. This includes ensuring that State agents receive the proper training, instruction, and policy guidance to carry out these obligations. The administration must work to revoke and replace harmful policy guidance, case precedent, and regulations that require or allow immigration officials to deny asylum protections in violation of international and domestic legal obligations.  
  • Eliminate the backlog in asylum adjudications by dedicating sufficient resources and eliminating harmful and duplicative policies designed to slow the process and violate due process, giving particular focus to people in detention. Article 9 of the ICCPR prohibits arbitrary detention. Yet, U.S. law allows — or, in some cases, requires — detention of people in immigration proceedings, including those who are exercising their lawful right to seek asylum. Pursuant to both international and U.S. law, people have the right to seek asylum and should not be criminalized for doing so. Contrary to popular misconception, there is not a process for people to apply for asylum while remaining in their countries of origin. As a result, many asylum seekers must present themselves at the U.S. border or enter the United States to apply for protections, which may allow the U.S. government to detain them during immigration proceedings. Even if the initial detention is justified, prolonged detention of asylum seekers by immigration authorities is clearly arbitrary. Under international law, a person may be deprived of liberty when charged or convicted of crimes pursuant to a lawful criminal legal process. Since people held in immigration detention are not in criminal proceedings, immigration detention must be strictly limited to the briefest time that is reasonably necessary for initial processing. Prolonged detention of asylum seekers who are not charged with crimes is arbitrary, and those who are charged with crimes should be handled through the criminal legal system with all of the rights inherent in that system.     
  • Ensure that those who must, under exceptional circumstances, remain in detention are held in facilities that comply with all international human rights standards with regard to conditions of detention. The primary source of international human rights standards for prisons and jails is the U.N. Standard Minimum Rules for the Treatment of Prisoners, also known as the “Mandela Rules” in honor of Nelson Mandela, who spent nearly 30 years in prison because of his democracy and anti-apartheid activism in South Africa. These standards are based on the requirements, found in the Universal Declaration of Human Rights (UDHR, also sometimes called the International Bill of Rights), the ICCPR, and the CAT that everyone be treated with the inherent dignity of humankind, and that the right to life and the right to be free from torture and cruel, inhuman, and degrading treatment be respected. The Mandela Rules are supplemented by the U.N. Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules). Both sets of rules apply to all settings in which people are deprived of their liberty by the State, including prisons, jails, and other detention facilities. Many U.S. immigration-detention facilities fail to comply with the gamut of these international standards, from overcrowding and understaffing to deficient health care and more. Prompt release of all asylum seekers would quickly help ease unacceptable conditions, particularly since numerous alternatives to detention exist and the criminal courts are the proper venue for those who are charged or convicted of serious crimes.  
  • Continue to rescind harmful and unlawful policies and regulations of past administrations while quickly proposing and implementing policies, regulations, and legislation that bring U.S. immigration policies in line with international practices. The Biden administration made an admirable start by quickly rescinding some of the worst of the Trump administration policies, such as the “Muslim Ban” and the “Remain in Mexico” (MPP) policy. But to the horror of immigration advocates, the administration has continued to rely on a misguided application of public-health law, the so-called “Title 42 expulsion policy,” that bars people, including asylum seekers, from crossing the U.S. border from Mexico or Canada if they would be held in a congregate setting by U.S. authorities. While this rule is purportedly justified due to COVID-19, its alleged necessity is created only by the fact that the United States continues to detain asylum seekers en masse.

The Biden administration’s promise of “a fair, safe, and orderly immigration system that welcomes immigrants” is laudable, and immigrant rights advocates understand that the undoing of four years of intentional damage aimed at destroying such a system cannot be instantaneous. But neither can the process of creating a fair and safe system drag on at the expense of people who are being harmed as we write this. Moreover, the Biden administration’s policies cannot simply aim to undo the harms of the Trump administration when many of the harms giving rise to concerns and recommendations at the UPR are the result of anti-immigrant and xenophobic policies and laws that have weakened the foundations of the U.S. immigration system for decades.

After a promising start, the administration is faced with a choice of maintaining its vision and promises of more just and lawful immigration policies or, instead, bowing to pressures and taking more politically expedient paths that revert to xenophobic and exclusionary policies. The latter choices threaten to harm many more people than have already suffered, including the most vulnerable, and violate America’s international and domestic legal obligations.

IMAGE: A human trafficker rafts a group of immigrant families across the U.S.-Mexico border on April 14, 2021 in Roma, Texas. A surge of mostly Central American immigrants crossing into the United States, including record numbers of children, has challenged U.S. immigration agencies along the U.S. southern border. (Photo by John Moore/Getty Images)