Reviving DACA to reforming DHS: 5 immigration issues Biden could confront as president

If Joe Biden wins in November, advocates who have spent the last four years suing President Donald Trump over his immigration policy are ready to hold the Democratic nominee accountable for his campaign promises.

Biden is positioning himself as former President Barack Obama’s natural successor, including on immigration policy. But he has sworn he won’t merely revert to the Obama-era status quo if elected.

“I was very proud to serve Barack, but even he acknowledges we can’t go back to what it was,” the former vice president said in June, pledging to send an immigration reform bill to Congress on day one of his presidency. “We have to go back and build back better. And so I have a program that is significantly different and builds upon where we left off and tries to undo the damage Trump has done.”

Immigration isn’t the only policy area in which Biden has made big progressive promises. But compared to health care or climate change, presidents have broad legal authority over immigration policy — as Trump has demonstrated by singlehandedly and fundamentally reshaping the immigration system during his first term, typically through executive action.

Merely undoing these changes will be a tall order if Biden claims victory in November. Advocates want to know how Biden plans to reign in the agencies tasked with immigration enforcement, which have become vessels of Trump’s nativist policies, and what he would do would respond if he faces a surge of migration at the southern border.

The pandemic could change the political calculus on immigration, which is no longer one of voters’ top priorities. In an era of mass unemployment, it might be difficult for Biden to advocate for policies vastly expanding immigration, as his immigration plan promises, when Americans fear they will be passed over for job opportunities, even though research shows that immigrants have essentially no effect on the unemployment rate.

But there are policy changes that Biden could undertake unilaterally and immediately upon assuming office: He could reverse some of Trump’s signature immigration policies, including the travel ban and his pandemic-related restrictions on legal immigration, and begin the immense task of reforming the immigration agencies by installing new leadership and revising their enforcement priorities.

Here are the top immigration priorities Biden would be under pressure to address during his first days in office:

1) Undo some of Trump’s biggest immigration policies

Trump has primarily pursued his agenda via executive fiat, meaning that Biden could easily reverse at least some policies as soon as he assumes office.

The presumptive Democratic nominee has already vowed to immediately end, among other policies, Trump’s travel ban citizens of 13 countries that his administration deems to be security threats; his practice of separating families in immigration detention; his recent memorandum excluding unauthorized immigrants from 2020 census population counts that will be used to draw new congressional districts in 2021; and restrictions on asylum including the Migrant Protection Protocols, under which Trump has sent tens of thousands of migrants back to Mexico to wait for their court hearings in the US.

Biden has also suggested that he would roll back the restrictions Trump recently imposed on foreign workers and immigrants applying for green cards. He has not yet said whether he would rescind Trump’s pandemic-related policies at the border that allow him to rapidly return asylum seekers to Mexico. (The Biden campaign didn’t immediately respond to a request for comment.)

Other Trump-era regulations may be more difficult to roll back. That includes Trump’s so-called public charge rule, which imposes a wealth test on immigrants applying to enter the US, extend their visa, or convert their temporary immigration status into a green card.

The rule represents one of Trump’s harshest blows to legal immigration yet and has had the effect of deterring immigrants from seeking out much-needed public services amid the pandemic. But Biden can’t afford to rush through the process of repealing the complex, 217-page rule; he will likely have to use executive action to initially limit the effect of the rule before formally repealing it or else risk losing challenges in the courts, David Bier, a policy analyst for the libertarian Cato Institute, said.

“A hasty repeal could get hung up in the courts,” he said. “As much as the immigrant advocacy community has used the courts to their advantage, the opposite will be the case [under a Biden administration]. Especially with many Trump judges on the courts, it will be hard to find a favorable ear.”

2) Reform the immigration agencies and install new leadership

Unlike more progressive candidates in the primaries, Biden has said that he would reform the existing federal immigration agencies — the Department of Homeland Security (DHS) and its component agencies, US Customs and Border Protection (CBP), US Immigration and Customs Enforcement (ICE) and US Citizenship and Immigration Services (USCIS) — rather than defunding them or dismantling them and building something new in their place. That will be a difficult task given just how fundamentally Trump has altered these agencies to do his bidding on immigration.

Leadership crises have plagued the DHS, which has been without a Senate-confirmed secretary since April 2019, and a government watchdog recently finding that the appointments of two top officials were invalid. USCIS, which is in the middle of a budget crisis of Trump’s making that could hamstring its ability to process immigration applications, has changed its mission statement to make clear that it no longer deigned to serve immigrants, but rather the American people.

Since Trump took office, there have been growing reports of abuses in ICE detention, including sexual assault, inadequate medical care, and retaliatory use of solitary confinement. CBP officers in military-style gear have been used to quash protests in Portland and to aid ICE in conducting routine immigration arrests in other sanctuary cities.

There have also been shifts at other agencies that preside over immigration issues: Trump’s US Attorneys General have increasingly sought to politicize immigration court proceedings. And there has been a mass exodus of career officials at agencies including the State Department, which oversees consulates that process visas worldwide and refugee resettlement.

Reversing these trends in the executive branch will not happen overnight. But it needs to be a priority, Rep. Joaquin Castro, the chair of the Congressional Hispanic Caucus (CHC), said.

“I think the number one thing that he’s got to do right away is to appoint a cabinet secretary at DHS, the head of the Border Patrol, the head of USCIS and the head of ICE,” he said. “He’s got to appoint true reformers who are willing to clean house.”

But on top of that, Carlos Guevara, associate director for immigration initiatives at the advocacy group UnidosUS, said that Biden also needs to review the next layer of political appointees, such as the officials running the DHS policy shop or the general counsel’s office.

“Those decisions will make a big difference,” he said.

Biden has proposed some ways that he would try to change the culture at the immigration agencies. He would focus on deporting only immigrants who pose a threat to national security and public safety — a designation that relies largely on the discretion of individual immigration officers. He would also improve accountability for immigration agencies like CBP and ICE. (His plan isn’t specific about what this accountability would look like.) He calls for ending for-profit detention centers, which have been sites of some of the most egregious abuses of immigrants in recent years. And he would work towards making the immigration courts more independent from the DOJ.

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Nicole Narea