Trump vs. Biden race to dictate fate of U.S. immigration for years to come

The 2020 presidential election will pit two drastically different visions on immigration against each other, with the victor retaining or assuming broad executive authorities that have dominated policy-making on the issue for decades in the absence of congressional action.

President Trump’s reelection would allow his administration to continue cracking down on unauthorized immigrants, limiting legal immigration and curtailing humanitarian protections for foreigners. During a second term, Mr. Trump could also see through major policy changes to the U.S. immigration system that have so far been stalled by federal courts.

If victorious, Joe Biden will inherit an immigration system transformed by hundreds of changes made by the Trump administration, including a series of restrictive asylum policies, sweeping green card rules, broader deportation priorities, a decimated refugee program and pandemic-era border restrictions.

Current and former senior Department of Homeland Security (DHS) officials and people close to the Biden campaign said the process of unwinding the Trump administration’s immigration policies could be an arduous and long effort.

“There has been such a demolition of our traditional immigration system under this administration, that the biggest challenge will be deciding where to begin rebuilding first,” León Rodríguez, who led U.S. Citizenship and Immigration Services (USCIS) during President Obama’s second term, told CBS News.

Cristóbal Alex, a senior Biden adviser, said the former vice president would take “immediate actions to undo Trump’s horrific immigration policies,” but conceded some “will take longer than others.”

Rescinding Mr. Trump’s presidential edicts, such as his travel ban on a group of mostly African and Asian countries, will be easier than scrapping the “public charge” wealth test on green cards and visas instituted through federal regulations, officials said. Other changes will require appointing an attorney general committed to overturning precedent-setting decisions, such as one issued by Jeff Sessions in 2018 to restrict asylum for victims of gang and domestic violence.

“Stated policies are fairly easy to reverse, from a practical perspective,” Rodríguez said. “Regulations present a bit more complicated case. Most of the regulations that would be of concern to a Biden administration are the subject of legal challenges. And so, the status of those legal challenges will play a big role in what strategy a Biden administration would choose.”

Ken Cuccinelli, the second in command at DHS, said he expects the Trump administration’s legacy on immigration to endure — even if the president loses reelection. Changing regulations, he added, is “very slow.”

“It’s not like someone shows up on day one and can stop doing regulation A, B or C,” Cuccinelli told CBS News. “Anyone looking to undo all that is going to have a lot of work to do.”

Biden will be under pressure from progressives to quickly reverse Mr. Trump’s changes, while also separating himself from some Obama administration practices unpopular with the immigrants’ rights community. Returning to Obama-era policies, especially when it comes to deportations and the detention of migrant families, will not be sufficient, progressive activists warn.

“Biden needs to undo the harm, make advancements to decrease the level of enforcement and create other opportunities for people to get status,” said Javier Valdés, the co-executive director of Make the Road Action and a member of a task force of Biden and Bernie Sanders supporters who created a unified immigration platform. “When I say undo the harm created by the U.S. government towards immigrant communities, I’m not just saying what happened under Trump. Yes, it was on steroids, but this has been a historical issue.”

Grappling with the Obama legacy

In 2014, as Univision anchor Jorge Ramos pressed him on the high number of deportations during his presidency and accused him of “destroying many families,” Mr. Obama grew visibly frustrated.

Mr. Obama strongly defended his record on immigration, citing his creation of the Deferred Action for Childhood Arrivals (DACA) initiative for “Dreamers,” as well as his attempt to create another deportation protection program for undocumented parents of U.S. citizens and green card holders. He also blamed Republican opposition in Congress for the inability to pass comprehensive immigration reform. However, the 3 million U.S. Immigration and Customs Enforcement (ICE) deportations executed during his presidency angered activists, who dubbed Mr. Obama the “deporter in chief.”

More than 749,000 deportations were carried out in the fiscal years with available statistics under Mr. Trump’s tenure. Midway into Obama’s presidency, ICE deported more than 400,000 immigrants in a single year — a record-high.

“I always say that Trump is abusing the ICE deportation machine that Obama built,” Amy Maldonado, a Michigan-based immigration lawyer, told CBS News. “And by most measures, Trump has been a lot worse than Obama, except for his actual deportations. Obama, hands down, still holds the deporter-in-chief record. Even if Trump had two terms, I don’t think he could match Obama, because he’s not that competent.”

The Obama administration issued several memos instructing ICE agents to use their discretion to exempt some individuals, such as long-time permanent residents and pregnant women, from enforcement and to focus on deporting immigrants with certain criminal convictions, recent border-crossers and those who reentered the U.S. after being removed. During his first week in office, Mr. Trump rescinded these Obama-era policies, broadening deportation priorities and decreeing that no undocumented immigrant would be exempt from being removed from the U.S.

On the campaign trail, Biden has conceded the Obama administration “took too long” to retool its enforcement priorities, calling the number of deportations a “big mistake.” He has pledged to institute a 100-day freeze on deportations. After that, Biden would oversee a “pretty significant adjustment” in deportation policy and direct ICE to focus on threats to national security and those convicted of serious felonies, according to Alex, his senior adviser.

Under Mr. Trump, ICE has increased its capacity to hold immigrants, expanding the world’s largest civil immigration detention system through contracts with for-profit prison companies and county jails. It has also confined asylum-seekers for longer periods of time, often in remote immigration jails with little oversight.

Biden has vowed to stop detaining asylum-seekers for the duration of their cases, and Alex said he would also end for-profit immigration detention. “No business should profit from the suffering of desperate people fleeing violence,” Alex said, adding that a Biden administration would expand programs that serve as alternatives to detention, like case management initiatives.

If elected, Biden will also face calls from the immigrant advocacy community to discontinue family immigration detention, a practice expanded dramatically by the Obama administration in 2014, when it faced a surge in unauthorized border crossings of children and families from Central America.

Reversing Trump’s policies

Through several asylum rules, the Trump administration has granted border officials the power to quickly bounce migrants off U.S. soil, effectively ending a system the president and his aides derided as “catch and release.” 

More than 60,000 asylum-seekers were returned to Mexico and required to wait there for their U.S. court hearings. Thousands were disqualified from asylum under a new rule because they traveled through a third country to reach U.S. soil. The administration also brokered agreements with El Salvador, Guatemala and Honduras that allow the U.S. to re-route asylum-seekers at the southern border to those countries.

While these programs have been, for the most part, suspended during the coronavirus pandemic, the Trump administration has used a public health directive issued in March to expel tens of thousands of border-crossers, including 8,800 unaccompanied children, without allowing them to apply for asylum.

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