President Joe Biden took swift action within the first week of his inauguration against several of his predecessor’s most reprehensible policies on immigration. He rescinded the ban on nationals of majority-Muslim and African nations and the Zero Tolerance policy that resulted in family separations. And the new president declared his commitment to defend the Obama-era Deferred Action for Childhood Arrivals program that provides short-term protection to about 640,000 undocumented people. Those early announcements, among others, were welcome relief for immigrants, their families, and the communities that rely on them, and showed that he remained committed to the promises he had made on the campaign trail to implement an “immigration policy that reflects our highest values as a nation.”
One hundred days later, that initial ebullience has waned. The principal cause for the setback was the political firestorm over the southern border. Although there is a significant seasonal uptick in border arrivals every year, the White House underestimated the extensive, and often uninformed, media coverage and partisan attacks that blamed the president for the influx. Contrary to these claims, government data confirms that the number of asylum seekers started increasing in April 2020, long before Biden was elected or entered office. But the reporting portrayed an image of an uncontrolled border, and opened the White House to criticism.
Public attitudes and media coverage of the southern border should not constitute the full measure of the president’s record on immigration issues, however. It also does not seem fair to judge a president based on events that were set in motion before he took office or that are far beyond his control. Rather, he should be judged by the yardstick of how he confronts crisis and solves problems. Under this test, Biden gets strong marks for problem-solving, an unsurprising result given the many policies implemented to date already by the exceptionally qualified immigration landing team he put in place. On crisis management, however, he has stumbled and been reluctant to follow through on more controversial reforms. As discussed below, the president may ultimately be judged not for creating the so-called border “crisis,” but for whether he remained true to his principles in the face of opposition.
In 1933, Franklin D. Roosevelt set the gold standard for laws passed in a president’s first 100 days, at 76 (on various issues). As yet, the new Congress this year has not passed any major immigration legislation, and no immediate action is expected on Biden’s legislative proposal, now embodied in the U.S. Citizenship Act. But bitter divisions in Congress and weak Democratic control over the Senate are responsible for the inaction, not the absence of presidential initiative. Democrats hold power in the Senate only by virtue of Vice President Kamala Harris’s power to cast a tie-breaking vote, hardly a commanding majority. By contrast, the 1932 elections delivered Roosevelt overwhelming Democratic majorities in both chambers — 313 Democrats to 117 Republicans in the House, and 58 Democrats to 37 Republicans in the Senate.
Headway With Executive Action
If passing legislation has been out of reach, Biden has made progress in the executive branch, issuing dozens of new policies that have both symbolic appeal as well as immediate on-the-ground impact on people’s lives. The symbolic leadership a president exerts on immigration is especially important, given the politically divisive nature of the issue. By rescinding the discriminatory country bans and proclaiming that all people are welcome, no matter their faith, Biden sent a clarion call that the federal government was moving in a dramatically different direction on immigration policy — to celebrate immigrants rather than denigrate them.
The new administration also has implemented several reforms that improve the overall functioning of the immigration system and its ability to help American families, businesses, and people at risk. That includes short-term protection for nationals of Liberia, Venezuela, and Burma. Biden also lifted or allowed the expiration of bans on immigrant and nonimmigrant visas that were blocking the entry of thousands of foreign workers, as well as relatives waiting to reunify with their family in the United States, and recipients of the diversity visa lottery.
With an eye toward keeping the immigration system — and America — open to all immigrants, the administration has halted a massive and unjustified fee hike that was in the works for nearly all immigration applications, and he has blocked the public charge rule, which clearly was designed to bar vast numbers of working class people from obtaining green cards and frighten them from seeking health care and other essential services. Less headline-grabbing actions that will have far-reaching impact include the elimination of a mean-spirited Trump-era practice of rejecting asylum applications and other petitions that left a single space blank, even when the question on the form did not apply. The so-called “blank space” policy was one of many Trump put in place to make the immigration process more difficult, rather than making it more efficient or welcoming. To further improve the process, the Biden administration reinstated the policy of granting deference to prior determinations made by U.S. Citizenship and Immigration Services adjudicators, thus ending the previous administration’s inefficient practice of requiring agency staff to repeat unnecessary determinations.
A comprehensive review by the American Immigration Lawyers Association, where I serve, assessing Biden’s first 100 days in office shows that most of the administration’s immigration actions are still in progress or incomplete. One reason many Trump-era policies remain in place is that they are now established in law as federal regulation. Among the “midnight” regulations Trump finalized in his last days in office was a sweeping policy that would functionally eviscerate asylum law. Such regulations cannot be undone with the stroke of a pen. Pursuant to the Administrative Procedures Act, before rescinding a regulation, the federal government must follow a formal process that includes publishing a notice of the proposed change and giving the public the opportunity to comment.
Biden has nonetheless been able to avoid implementing some harmful regulations by delaying rules before they took effect or by altering course on litigation after courts had halted regulations. The asylum regulation that was finalized in December has never taken effect because it was enjoined before coming into effect. Once a regulation is enjoined, the new administration can decide how and whether to defend it in court. This was the case with Trump’s public charge rule, which the Biden administration concluded was not “in the public interest” and chose not to defend any longer.
Glaring Gap: the Justice Department
A glaring gap in the execution of Biden’s immigration plan is the lack of overarching policy emanating from the Justice Department, which controls the immigration courts that are overwhelmed by a backlog of 1.3 million cases. With average waits for hearings exceeding four years, asylum seekers may be at greater risk of being denied asylum and sent back into harm’s way if evidence grows stale or a witness becomes unavailable.
Then-attorney general nominee Merrick Garland signaled his awareness of the need for docket prioritization to address the backlog, in an exchange with Senator Mazie Hirono (D-HI) during his confirmation hearing. Yet Garland, who took office March 11, still has not taken steps he could have instituted immediately to prioritize the backlog. That’s a missed opportunity: an estimated 700,000 cases do not fall under the president’s new enforcement priorities and could be removed from the backlog to allow more pressing matters to move forward. The failure to act is even more stark given Biden’s Jan. 20 executive order, which instructed the attorney general to set enforcement priorities. The delays in Garland’s confirmation provide only a partial explanation. Another department, Homeland Security, issued its memo on enforcement priorities on Jan. 20, the same day as Biden’s order and well before Secretary of Homeland Security Alejandro Mayorkas was confirmed on Feb. 2.
The delays in installing new leadership and other personnel also continue to hold back reforms of the immigration courts, which are dominated by ideologically-minded Trump appointees, with the exception of the acting director, who was installed in late January. Their impact, along with Trump’s appointment of 300 immigration judges who now comprise a majority of all judges, has increased the denial rate on asylum cases from about 50 percent during the Obama and Bush years to a staggering and historically unprecedented 72 percent. As long as these Trump holdovers remain in office, judges will be pressured to dispense with cases rapidly under Trump-era case quotas, and people will be rushed through court proceedings at the expense of a fair hearing. Removing or reassigning these officials requires thorough investigation and assessment of whether improper actions were taken, a process Senators Dick Durbin (D-Illinois), Kirsten Gillibrand (D-NY), and several others are now urging.
Personnel delays and operational challenges may buy the new president some goodwill to fulfill campaign commitments. But he has come under the sharpest scrutiny – and rightly so — when he has failed to deliver purely for political reasons or optics. On April 16, this pattern was on vivid display when Biden unexpectedly backed away from his pledge to increase the number of refugees that would be resettled in the United States. Instead, he announced that the resettlement goal would remain at an appallingly low 15,000 refugees — the same level that Trump had established and less than a quarter of Biden’s campaign commitment. The new president may have been concerned about potential political damage, especially in the 2022 midterm elections, considering the criticism from the right over the border influx. The denunciations from within his own party and human rights advocates, however, were resounding, and within the same day, the White House reversed itself and said it would announce a new refugee number by the middle of May.
Need for Moral Clarity
While the capitulation on refugee policy marks Biden’s most embarrassing low point, his lack of moral clarity on border policy is also jeopardizing his human rights record on asylum seekers and the treatment of migrants. The president deserves credit for halting new enrollments under the Migrant Protection Protocols and executing the initial phase of processing for some asylum seekers who had been forced to wait in dangerous conditions in Mexico. Still in place, however, are many barriers that threaten the lives of those who have fled from danger and persecution. Most notably, Biden has retained the ban on asylum seekers that the Centers for Disease Control and Prevention issued under pressure from Trump officials on the false pretext of protecting public health during the pandemic. Relying on this policy, the new administration has expelled large numbers of Haitians, Cameroonians, and other asylum seekers already in the United States, as well as asylum seekers from Mexico and Central American countries. Many of these people have not had adequate opportunity to apply for humanitarian relief.
Concerns about drawing more migrants to the U.S. border are also impeding Biden’s success on detention policy, where he has pledged to end family detention and to reduce the overall use of inhumane detention of migrants. Reports from news agencies and non-governmental organizations, including ourshave shown that ICE detention facilities are petri dishes for COVID-19 and that ICE has failed to take steps to protect people in detention, the staff who guard them, and local communities.
Advocates have urged the president to reduce the astronomical $2 billion burden on taxpayers that is being spent wastefully and unnecessarily on detaining immigrants. The initial “skinny” budget Biden presented to Congress recognizes the importance of alternatives to detention, such as community-based case management and legal representation, which are the right solution to ensure people appear at court without depriving them of their liberty. But the budget does not commit to any reduction in detention spending, and if the president is serious about detention reform, he should cut its budget by 75 percent to bring numbers closer to where detention levels were two decades ago, before its use escalated. With current detention figures at low levels of about 14,000 people detained per day, the president has an opportunity to implement a major reform.
Biden campaigned on a powerful vision chock full of practical solutions to tackle the border and other seemingly intractable immigration challenges. The American people need to hear him explain the wisdom of those solutions — that the protection of refugees advances America’s humanitarian record and its national interest, and that the processing of migrants at the border can be done fairly, humanely, and in an orderly manner. For decades, Americans have become increasingly supportive of immigration, even when Trump was mounting constant attacks on immigrants in the media. In the long run, that support is unlikely to waver, and the public will stand firmly behind the president, as long as he stands by his principles and delivers solutions.
IMAGE: U.S. President Joe Biden and Vice President Kamala Harris meet with Homeland Security Secretary Alejandro Mayorkas, Health and Human Services Secretary Xavier Becerra, Chief of Staff Ron Klain (R) and other cabinet members and immigration advisors in the State Dining Room on March 24, 2021 in Washington, DC. (Photo by Chip Somodevilla/Getty Images)