Biden’s immigration plan: Cancel Trump orders, seek bill in Congress

But the Democratic presidential nominee still faces criticism over Obama-era enforcement policies and a deportation rate higher than Trump’s

Activists remind Joe Biden last year in Philadelphia of immigration policies he supported during the Obama era.  (Bastiaan Slabbers/NurPhoto via Getty Images)
Activists remind Joe Biden last year in Philadelphia of immigration policies he supported during the Obama era. (Bastiaan Slabbers/NurPhoto via Getty Images)
Posted August 20, 2020 at 4:36pm

Not only would President Donald Trump’s border wall come to an end if Democratic presidential nominee Joe Biden defeats him in November, Biden would quickly move to roll back many of Trump’s executive orders and actions on immigration, according to the candidate and the party platform.

“There will not be another foot of wall constructed on my administration, No. 1,” Biden told Black and Hispanic journalists during a press briefing in early August.

“I’m going to make sure that we have border protection, but it’s going to be based on making sure that we use high-tech capacity to deal with it. And at the ports of entry — that’s where all the bad stuff is happening,” he said.

Biden also has vowed to pursue comprehensive immigration legislation, something that Congress hasn’t been able to do since 1986 and failed notably in 2013, when House Republicans rebuffed a Senate-passed bill.

Passing legislation would likely be a heavy lift, but Biden could move quickly to rescind the executive orders and actions that Trump has signed, a total pegged at more than 400 by the Migration Policy Institute.

“We will start by righting the wrongs of the Trump Administration,” the party platform reads.

According to the campaign website for Biden and his vice presidential running mate, Sen. Kamala Harris, within their first 100 days after taking office, Biden would revoke Trump’s declaration of a national emergency to build the border wall, rescind various travel and asylum bans, and end the “Remain in Mexico” and “metering” border policies that prevent migrants seeking asylum from entering the United States.

He also would scrap the wealth test the Trump administration has proposed for prospective immigrants.

A Biden administration would also move quickly to reinstate and extend protections for undocumented immigrants who came to the United States as children and who have been protected under the Deferred Action on Childhood Arrivals program. It would grant these so-called “Dreamers” access to federal student loans.

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Democrats “will reinstate, expand, and streamline protections for Dreamers and the parents of American citizen children to keep families together in the communities they have long called home,” according to the party platform.

Biden also would raise the current refugee ceiling from 18,000, a historic low, to 125,000, which would surpass even Obama-era levels. His plan said he would issue new rules and guidance for processing migrants at the border in a way that Todd Schulte, president of pro-immigration group Fwd.us, described as “totally transformative.”

Comprehensive legislation

A Biden administration would also, according to the campaign website, “commit significant political capital to finally deliver legislative immigration reform.” This would include a push for new laws and policies to allow more people into the immigration system. That includes the roughly 11 million undocumented people now in the country, for whom Biden intends to create “a roadmap for citizenship,” provided they pay taxes and pass background checks.

“That is the central demand, and that is something he has committed to,” Schulte said. “It is a big deal.”

The platform also notes the party would “support legislation to ensure that no president can enact discriminatory bans ever again,” an initiative that could be included in comprehensive legislation.

Biden’s plan would fast-track the citizenship process for agricultural workers. It would expand the so-called high-skilled work visa program and make changes to prevent exploitation of foreign workers and displacement of American workers. It would eliminate limits on employment-based green cards by country, which have caused decadeslong backlogs for applicants from India, in particular.

But Congress hasn’t been able to pass major immigration legislation since 1986. Even if Democrats take control of both chambers, political differences within the party, and opposition from Republicans, could easily stymie efforts to pass legislation.

Biden’s evolution

Biden’s positions on immigration have evolved “quite a bit” — even from the beginning of his own campaign, said Muzaffar Chishti, a senior fellow and director of the MPI office at the New York University School of Law.

“His instinct is to be a moderate, and that extends to immigration,” Chishti added. “My hunch is that he’s going to revert back to that position.”

What Biden’s agenda and the Democratic Party platform include, and what they leave out, suggests a shift in his immigration stance, albeit a tentative one.

Neither calls for abolition of U.S. Immigration and Customs Enforcement, as many advocates and progressive Democrats have sought after media and government reports of medical neglect and abuse of migrants in its care. Instead, the Biden and Democratic platforms seek to “increase resources for training and demand transparency in, and independent oversight” over ICE and Customs and Border Protection, the other agency whose culture and treatment of migrants has been criticized. They also mention ramping up technology at the border for screening vehicles and people who cross, which has been another flashpoint for some progressives and privacy advocates who worry about needless surveillance against border communities.

In July, the Unity Task Force created by Biden and former Democratic presidential candidate Sen. Bernie Sanders, I-Vt., proposed a number of changes in immigration policy that sought to merge the moderate goals Biden initially held with border measures advocated by Sanders and his supporters. They included a 100-day moratorium on deportations, pending a review on “current practices to develop recommendations for transforming enforcement policies and practices at ICE and CBP.” The Biden-Harris agenda does not mention that policy, which would be a significant departure from the Obama era, or even earlier in Biden’s own campaign, Chishti said.

Since launching his presidential run, Biden has faced criticism from immigrant rights advocates over Obama-era enforcement policies and his own voting record. For example, deportations were higher during the Obama-Biden administration than they have been in the Trump presidency.

The Obama-Biden administration also detained Central American asylum-seekers and their children at large family detention centers. It was known to rush them through a fast-track court process and authorize raids to round up and deport migrants after they were ordered removed.

Biden has recently expressed regret for this approach.

“The ‘deporter-in-chief’ moniker that Obama got, [Biden] was hit with that,” Chishti said. “He did admit recently that that [Obama-era] approach was a mistake — that was a departure.”

Biden’s website now mentions he would restore an enforcement approach similar to the Obama administration, wherein immigration authorities would target for deportation only the undocumented immigrants whom they see as security risks. He also would end private detention and expand detention alternatives and case management programs for immigrants.

Biden also would be expected to focus on developing a more efficient asylum processing apparatus, as well as greatly expand the regional work he did during the Obama administration to address the root causes of unauthorized migration. 

These steps may not go far enough, however, for immigrant activists pushing for more significant changes.