Joe Biden’s immigration policy: “Trump light”?

Dr. Dorian Kantor is a political scientist, author, and professor of International Relations at Pontificia Universidad Javeriana. As a 2021 FES DC Media Fellow, he writes about U.S. foreign and national security policy.

In the 2020 presidential election, a record-setting 81.3 million voters delivered the White House to Joseph R. Biden, Jr., with over two thirds of the Latinx vote going to the Democratic candidate. As Biden faces a whole host of daunting domestic and foreign policy challenges, expectations for the new administration to make a clean break with the immigration policies of the Trump years run exceptionally high. Indeed, Joe Biden’s victory over Donald Trump brought new hope and relief to many who expected that the Democratic administration’s approach to immigration would represent a 180 degree turn from the “zero-tolerance” policies of the previous four years. To wit, the 45^th president was determined to stop virtually all migration from Latin America and the Caribbean, to drastically limit immigration overall, and to end the Deferred Action for Childhood Arrivals (DACA) program[1] which was put in place during Barack Obama’s second term in office.

To be sure, President Biden faces daunting challenges as he develops a new set of immigration policies. Specifically, the administration’s job is immensely complicated by a global pandemic, natural disasters, poverty, violence, and corruption that constitute the push factors driving desperate individuals to seek a better life in the United States. Indeed, irregular border crossings along the US-Mexico border have reached a 20-year high in recent months.

Despite the soaring expectations, Biden’s immigration-related policies have been labeled as “Trump light” or “Trump 2.0” by various progressive commentators, academics, media outlets, and immigrants’ rights activists. In this article, I will examine President Biden’s immigration-related executive orders and their implementation to date to evaluate if those labels accurately characterize the new administration’s track record.

Biden’s executive actions – five attempts to enact policy change

The Biden administration has sought to implement meaningful change in the immigration policy area through executive orders. As the head of the executive branch, the president has the authority to order the bureaucracy – including administrative agencies – to change the way that the laws are executed while remaining within the confines of the applicable congressional statutes.[2]

First, Biden has signed the “Executive Order on the Establishment of [an] Interagency Task Force on the Reunification of Families” separated by the U.S. government in implementation of the Trump administration’s zero-tolerance immigration policies. One of those inhumane policies of prevention-through-deterrence under President Trump mandated the systematic separation of children from their immediate or extended family members, affecting tens of thousands of minors. While President Biden’s effort to undo the effect of Trump’s family-separation policy is laudable, if we factor in those minors who arrived at the U.S.-Mexico border unaccompanied by a parent or a legal guardian, roughly 20,000 children still remain in U.S. custody awaiting to be united with a vetted sponsor. Moreover, as the TV newsmagazine 60 Minutes reported earlier this month, the president’s family reunification task force has only been able to rejoin 52 of roughly 1,500 separated migrant families.

Second, Biden has ordered the review and overhaul of the asylum process in the executive order titled “Creating a Comprehensive Regional Framework to Address the Causes of Immigration, to Manage Migration Throughout North and Central America, and to Provide Safe and Orderly Processing of Asylum Seekers at the United States Border.” As part of that order, Biden did away with the Migrant Protection Protocol which forced asylum seekers to wait for U.S. immigration proceedings to unfold in open-air refugee camps in Mexico. However, as the Department of Homeland Security began processing those asylum applicants – and while also seeking additional resources to carry out the process in an expedited and orderly fashion – the Trump-appointed U.S. District Judge Matthew Kacsmaryk in Amarillo, Texas ordered the administration to reinstate the “Remain in Mexico” program. Kacsmaryk argued that the Biden administration’s rescission of the program was “arbitrary” and “capricious” and thus in violation of the Administrative Procedures Act, which dictates the process that agencies must follow before implementing new policies. When the federal government sought emergency relief from the U.S. Supreme Court in August, the Court’s six-member conservative majority refused to block the district judge’s order. Although the administration argues that the reinstatement of the program will be temporary, immigrants’ rights groups have emphasized that it will inevitably lead to more human suffering. In fact, according to the group Human Rights First, up to February 2021 at least 1,544 publicly reported cases of murder, rape, torture, kidnapping, and other violent assaults had been reported against asylum seekers subject to the “Remain in Mexico” program.

In keeping with the same executive order, the Justice Department (DOJ) has implemented other significant changes: First, Attorney General Merrick Garland has reversed several Trump-era policies, including the one that limited the ability of victims of domestic violence and gang threats to seek asylum in the United States. Second, it allowed immigration judges to administratively close low-priority cases, thereby clearing the massive backlog that accumulated under the  DOJ’s rules under the leadership of Jeff Sessions in the Trump administration. Nevertheless, much to the chagrin of immigration advocates, the Biden administration has indefinitely extended Title 42, a Trump-issued pandemic-related public health order, which allows border agents to summarily expel migrants caught crossing the border, essentially foreclosing the opportunity to seek asylum in the United States. The administration justifies the indefinite extension of the policy by citing the CDC’s determination that the spread of Covid by non-citizens remains a “serious danger” to public health. According to one estimate, the Biden administration has invoked Title 42 to expel more than 700,000 people since February 2021. In fact, it was based on this policy that Border Patrol Agents detained and deported thousands of Haitian migrants in September, prompting the U.S. envoy to Haiti, Daniel Foote, to resign in protest saying that the decision was “inhumane and counterproductive.”  

Third, the Biden-Harris administration has terminated Trump’s national emergency with respect to the southern border and the redirection of funds diverted to border wall construction. Biden has also “pause[d] work on each construction project on the southern border wall.” Instead, the new administration has proposed “smart” border enforcement efforts such as cameras, sensors, x-ray machines, and, potentially, facial recognition – a change to be sure, albeit one that is not without controversy.

As a sign of increasingly tense federal-state relations in the post-Trump era, on October 21, 2021, the attorneys general of Texas and Missouri filed a lawsuit in the U.S. district court in Victoria, TX, to force resumption of the construction of the U.S.-Mexico border wall. According to Texas attorney general Ken Paxton, “[t]he Biden administration’s flat refusal to use funds that have already been set aside by Congress to build the border wall is not only illegal and unconstitutional… It’s also wrong, and it leaves states like Texas and Missouri footing the bill.” Indeed, Congress had appropriated roughly $1.4 billion to construct barriers along the southwest border for FY 2021, and President Biden’s decision not to spend those funds is on shaky legal grounds – specifically, the Congressional Budget and Impoundment Control Act of 1974 which definitively removed the president’s power of impoundment, i.e., the ability not to spend money approved by Congress.

Fourth, another one of Biden’s executive orders promises to “preserve and fortify Deferred Action for Childhood Arrivals,” reaffirming his commitment to retain the DACA program and to protect DACA recipients. It paves the way for nearly 650,000 Dreamers to renew their DACA status and for more than 300,000 DACA-eligible US residents to apply for the program. It also reaffirms Biden’s commitment to create a path to citizenship for Dreamers. In July, DACA suffered a major blow when U.S. District Judge Andrew Hanen in Houston, TX (a George W. Bush appointee) ruled that the program as conceived in 2012 illegally short-circuited the requirements of the Administrative Procedures Act.  Since then, President Biden’s Department of Homeland Security has proposed a new formal rule to shore up the program and to gain the federal courts’ seal of approval.

Fifth, as presidential candidate, Joe Biden also promised to do away with the Asylum Cooperative Agreements concluded by the Trump administration with the “Northern Triangle” countries (Guatemala, Honduras, and El Salvador) which forced people fleeing for their lives to seek asylum in the very countries that they had fled. Fulfilling Biden’s campaign pledge, in February, the State Department issued a statement announcing the immediate suspension and proximate termination of the Asylum Cooperative Agreements.

Finally, Biden’s immigration-related executive orders did not address the matter of Temporary Protected Statuses (TPS),[3] many of which the Trump administration allowed to expire leaving countless U.S. residents without a proper legal status. Nevertheless, the new administration has taken a generous approach to the issue of TPS, not only renewing existing grants, but also extending the status to new countries such as Venezuela.

Ultimately, Biden’s record appears to be a mixed bag. While the administration has mounted an ambitious effort to protect those who are already in the United States as DACA or TPS beneficiaries, it has also continued Trump-era policies that erect barriers that are equally – if not more – challenging for migrants to overcome than physical ones. Nevertheless, the labels “Trump light” or “Trump 2.0” are not fully accurate. Specifically, the Biden administration’s efforts to pivot away from Trump’s immigration policies have come up against hostile judicial rulings and contentious federal-state relations. Indeed, President Trump was able to profoundly impact the composition of the federal courts – more so than any president in a single term since Jimmy Carter; and his appointees have embraced judicial activism at all levels of the judiciary. Also, Republican governors and attorneys general have shown remarkable willingness to challenge Biden’s immigration policies, impeding much-needed progress in this area.

Getting it right: the U. S. Citizenship Act

As I outlined above, where President Biden has been able to make changes in the realm of U.S. immigration policy he did so via executive action. Nevertheless, legislation is necessary to make more permanent changes. In February of this year, with Biden’s backing, Democrats unveiled the U.S. Citizenship Act, a sweeping immigration reform bill which essentially mirrors the President’s stated priorities. The pillars of the proposed immigration overhaul are:

1. A pathway to citizenship for the over 11 million undocumented immigrants in the United States. This provision of the bill would also take care of DACA recipients and people who hold Temporary Protected Status.
2. The bill also proposes to increase border security at ports of entry by providing much-needed resources.
3. It would relieve the pressure on the asylum system by funding more immigration judges to deal with the backlog that was created under President Trump. Additionally, asylum seekers would receive pro bono representation so that they can comply with the requirements of the process.

Unable to move forward with the larger immigration overhaul, on March 18, the Democratic-controlled House of Representatives passed two pared-back immigration bills: one providing a pathway to citizenship to some (but not all) undocumented immigrants, including the Dreamers and those enjoying Temporary Protected Status; and one granting legal status to farm workers while the Congress works on updating the agricultural visa program. Although both bills enjoyed bipartisan support in the House, their future in the Senate remains uncertain, especially without changing the filibuster.

Ultimately, Biden’s executive orders and agency action have produced positive change can only serve as temporary Band-Aids, leaving millions at the mercy of changing political winds. As Congresswoman Veronica Escobar (D-TX) put it on CNN’s State of the Union, the crisis at the southern border “is a challenge that we’ve been seeing for years. It’s not going away – until we fix it,” and that fix must come in the form of congressional legislation.

The centrality of Central America – stemming the flow of migrants through investment?

Biden has had a special concern for the countries of the Northern Triangle since his time as the nation’s 47^th vice president. While serving under Obama, Biden was the architect of the Alliance for Prosperity (A4P) initiative whose purpose was “to address the structural causes of irregular migration through the generation of economic opportunities and the improvement of citizens’ quality of life.” In an effort to boost development and to improve security and governance across Guatemala, Honduras, and El Salvador, Congress initially approved $750 million for the A4P in 2016.

The impact of the A4P initiative is difficult to measure since Trump curtailed the program in 2019 and cut foreign aid to Central America by 75% in 2017. It is safe to say, however, that it ultimately failed to achieve its purpose of curbing the flow of irregular migrants from Central America. Nevertheless, building on the existing program, the Biden administration has proposed A4P 2.0,  which includes a $4 billion investment package to address the economic, security, and governance causes of migration from the Northern Triangle. Those funds, at least in theory, will eliminate the push factors that drive migrants to the United States. Unlike its precursor, A4P 2.0 promises to “[p]lace strong conditions of verifiable progress to ensure that U.S. taxpayer funds are used effectively.”

While a coherent program has yet to see the light of day, Biden’s campaign website envisions the following as pillars of the $4-billion foreign-aid-focused regional strategy: (i) combating corruption, (ii) marshaling private sector investment, and (iii) investing in civil society organizations. As an indication of the administration’s commitment to improving the economic and governance conditions of the region, the president has tasked his Vice President, Kamala Harris, to lead the diplomatic efforts to address the root causes of migration from the Northern Triangle – the same role that Biden himself had when he was Barack Obama’s vice president.

Mexico: America’s proxy border wall

A truism regarding the stemming of the flow of irregular migration from Central America is that the United States must cooperate with Mexico. However, during Andrés Manuel López Obrador’s presidency, the bilateral security relationship between the U.S. and its southern neighbor has seen precipitous deterioration.

What has caused the bilateral security relationship to sour? One reason – or rather a symptom – is the exoneration of Mexico’s former Minister of Defense Salvador Cienfuegos, whom U.S. authorities arrested and accused of drug trafficking, money laundering, and cooperation with the Mexican drug cartels. This reveals the lack of a concentrated effort on the part of the Mexican government to root out corruption and organized crime.

To add insult to injury, in December of 2020, the Mexican Congress passed a law restricting cooperation between the United States and Mexico to fight organized crime. Essentially, the new statute paralyzes Mexico’s cooperation with fellow law enforcement agents in the U.S., and severely undermines the trust between the two countries.

Nevertheless, despite their differences, Biden recognizes the need to cooperate with his North American counterpart ALMO (as López Obrador is widely referred to in Mexico). In a recent virtual meeting between the two presidents, Biden emphasized that Mexico and the United States are “equal” partners in “addressing the challenges of [the] shared border.” Indeed, the facts on the ground are that Mexico has effectively become a proxy for Trump’s border wall, and the U.S. needs to maintain a working relationship with its southern neighbor not only to control migration but also to ensure that migrants’ rights are respected. Ultimately, President Biden’s goal must be common success rather than physical, ideological, and political barriers.

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In conclusion, President Biden faces a host of challenges as his administration seeks to develop a coherent set of immigration policies. Some of those challenges are external push factors driving migrants to seek a better life in the United States: COVID-19, natural disasters, poverty, and crime, to mention just a few. Domestically, his administration faces a public health emergency, coupled with hostile judicial rulings and contentious federal-state relations. The president struck the right tone in a press conference on March 25^th when we said: “I make no apologies for ending programs that did not exist before Trump became president that have an incredibly negative impact on the law, international law, as well as on human dignity.” Nevertheless, Biden’s track record on immigration is tarnished by a number of factors including the retention of Title 42, the treatment of Haitian immigrants, and the inefficiency of the family reunification task force. Despite his failings, however, Biden has shown none of the malice that President Trump displayed toward immigrants. Therefore, it would be unfair to label his immigration policy as “Trump light” or “Trump 2.0.” In fact, his support for the U.S. Citizenship Act indicates that President Biden is committed to pursuing the much-needed and long-overdue overhaul of the Immigration Reform and Control Act which was signed into law thirty-five years ago by President Ronald Reagan. Indeed, without a legislative fix, the Dreams, TPS beneficiaries, and asylum seekers will remain subject to the vicissitudes of ad hoc presidential politics.

Finally, it is important to point out that President Biden is quickly running out of political capital to enact his immigration-related agenda. According to multiple polls conducted mid-October (Quinnipiac, Morning Consult/Politico, FiveThirtyEight), roughly 65% of Americans disapprove of the administration’s handling of immigration issues – an alarming figure for a president who made reversing Trump’s anti-immigrant policies and the overhauling the United States’ broken immigration system one of the focal points of his administration’s political agenda. Worse even, Biden is losing support among key groups of his political coalition including Hispanics, Independents, and progressives. Hence, since the president is stuck in a damned-if-you-do-damned-if-you-don’t situation, he might as well do the right thing so as not to further alienate Hispanic and progressive voters, i.e., throw out Title 42, speed up family reunification, fast-track the release of unaccompanied minors to U.S. sponsors, and find a way around Senate Rule 22 (the filibuster) in order to greenlight the Democrats’ legislative program, including the enactment of the U.S. Citizenship Act.

[1] The protection of those U.S. residents who arrived in the United States as children through no fault of their own and remain undocumented. Congress has also attempted to resolve the precarious legal status of immigrants who were brought to the United States as minors through the Development, Relief, and Education for Alien Minors Act, also known as the DREAM Act. The DREAM Act was first introduced in 2001 and has been reintroduced numerous times since then, however, its sponsors have not achieved legislative success. In American parlance, young undocumented immigrants have come to be referred to as “dreamers.”

[2] See, Kenneth Meyer. “Executive Orders and Presidential Power.” The Journal of Politics, Vol. 61, No. 2 (May, 1999): 445-466. https://doi.org/10.2307/2647511

[3] TPS status is essentially a stopgap measure affording, according to Cecilia Menjívar, “liminal legality” for temporary immigrants who might return home in the foreseeable future.