Immigration changes to take time under Biden, experts say

Restoring DACA and rescinding Muslim ban likely first steps

Revelers on Saturday celebrate Joe Biden becoming the 46th president of the United States at Black Lives Matter Plaza in D.C.  (Tom Williams/CQ Roll Call)
Revelers on Saturday celebrate Joe Biden becoming the 46th president of the United States at Black Lives Matter Plaza in D.C. (Tom Williams/CQ Roll Call)
Posted November 9, 2020 at 5:44pm

The Trump administration has taken over 400 executive and regulatory actions on immigration, imposing sweeping restrictions and expanding enforcement efforts. While President-elect Joe Biden has promised a set of executive orders to reverse some of them, immigration analysts say unraveling many others won't be so easy.

When Biden and his vice president, Kamala Harris, take office on Jan. 20, they will inherit a bevy of immigration policy issues that include an incomplete border wall, an immigration benefits agency in financial crisis, an asylum system in ruins, and the aftermath of a messy family separation policy. 

Both campaigned on the promise of reversing a bulk of the Trump-era policies, but their transition website does not mention immigration as a priority. And the top issue for the incoming administration was crystallized Monday when Biden announced a COVID-19 advisory board to handle the federal response to the pandemic.

“We’re about to see the pace of immigration changes slow down significantly,” Sarah Pierce, a Migration Policy Institute analyst, said Monday at a press briefing about a new report on Biden-era immigration prospects.  

Experts said this, along with weekend speeches about national unity, economic recovery and a Senate that may remain in Republican control, signal which policy areas may take precedence over immigration plans — in stark contrast to the Trump administration, under which they were a priority. 

How a Biden administration will choose to balance political perceptions with policy goals will be clearer once it announces its cabinet picks for key immigration-related agencies — the Homeland Security and Justice Departments, in particular. 

First 100 days: Quick reversals

Certain elements of a Biden immigration agenda can be fairly easy to achieve through presidential memos and proclamations.

For example, Biden’s promises of canceling the travel ban against Muslim majority countries and reinstating the Obama-era Deferred Action for Childhood Arrivals program should be relatively quick to fulfill, MPI experts noted Monday.

Beneficiaries of DACA, which allows undocumented people who came to the country as children to stay and work, are viewed sympathetically by the American public. Legislation protecting these immigrants have gained bipartisan support in Congress.  

Regulatory changes instituted by Trump, such as the public charge rule that denies green cards to immigrants deemed “likely” to rely on public benefits, would have to go through a longer rulemaking process, even if they were enacted without public comment, Pierce said. And because many of these rules are subject to litigation, it’s possible the future administration may be able to circumvent the regulatory process and revise them through the court process.

“This might be a frequent approach for the Biden administration,” Pierce said. 

“Some regulations could also be reversed through the Congressional Review Act,” she added. “This is a law that allows Congress to reverse regulation enacted within 60 days.” 

The Biden-Harris administration has vowed to stop border wall construction and revive the asylum process that's largely ended under Trump, but logistical considerations will play a huge role in how these reversals are implemented. The administration may actually leave intact a controversial March order allowing border officials to send back all migrants at the border while it gets its bearings, MPI experts said Monday. 

On the southern border, Biden has pledged to end the Trump administration’s Migrant Protection Protocols policy, often called the “Remain in Mexico” program. It remains to be seen where it “paroles” the 25,000 or so people in the program now living in makeshift camps along the border, or in shelters in more interior parts of Mexico, so they can enter the United States and carry out their court process here.

MPI experts also said the Biden administration may pick up its policy recommendation to allow asylum officers to not just screen migrants for asylum, but adjudicate their cases to completion. That would expedite processing and reduce court backlogs. 

They did not hold out much hope that Biden will follow through on his promise to propose comprehensive immigration legislation.

In the last presidential debate, Biden promised to send a comprehensive immigration reform bill to Congress within his first 100 days in office.

“That was a surprise to a lot of us, just because of the crowded agenda they had,” MPI senior fellow Muzaffar Chishti said in the briefing Monday. 

However, even if the Senate ends up in the control of Democrats, it’s going to be a real feat getting different camps within the Democratic Party to agree on any comprehensive measure.

“Because it is important to the base of the Democratic Party, one can expect there will be some movement toward comprehensive immigration reform — but it will be an uphill task,” Chishti said.