Originally Published in The Washington Post
Nick Miroff and Maria Sacchetti - December 2, 2020
President-elect Joe Biden will take office under pressure to repudiate and rescind many, if not most, of the more than 400 executive actions President Trump has used to tighten the U.S. immigration system. But Biden also will start his term in a bind that could make such changes difficult to accomplish in short order.
Biden’s administration will inherit an enforcement system cracking under the strains of the coronavirus pandemic, a crippling immigration court backlog and a demoralized workforce at the Department of Homeland Security, where leadership instability and administrative chaos have been signatures of Trump’s tenure.
At the U.S.-Mexico border, tens of thousands of migrants with pending asylum claims are waiting to enter the United States, some in squalid tent cities that resemble refugee camps. U.S. border agents have been making arrests at a soaring rate — more than 2,000 per day in recent weeks — as the economic fallout from the pandemic and devastating hurricanes in Central America threaten to trigger a new wave of illegal migration to the United States.
The emergency policies Trump has used at the border to contain migration pressures are among the measures Biden has pledged to rescind, leaving Homeland Security officials and analysts warning of the potential for a new crisis.
Navigating between activists’ demands for a total rejection of Trump’s policies and the complex reality at the border — where communities on the U.S. side are among the hardest-hit by the pandemic — will be a challenge for Biden from his first day in office.
“It’ll be a matter of managing expectations,” said Theresa Cardinal Brown, director of immigration and cross-border policy at the Bipartisan Policy Center in Washington. “Biden will have to say: We intend to do this, but we have to do it well so that we don’t re-create horrid conditions at the border. … I think people will give him a little bit of slack, but not for too long."
Biden, the descendant of Irish immigrants, has promised to shred Trump’s executive orders on asylum, seek a path to legal residency for millions living in the shadows and restore the United States’ core identity as a nation of immigrants. A sense of relief washed over many immigrant communities after his election, with crowds cheering outside the White House, dancing in front of their computer screens in New York and praying in refugee shelters in Mexico.
The Biden campaign’s immigration proposals are loaded with the wish-list items of immigration advocates and Democratic activists. The president-elect has pledged to renew and expand Deferred Action for Childhood Arrivals (DACA) protections, raise the refugee limit sevenfold, to 125,000 per year, and immediately end construction of Trump’s $15 billion border wall. Biden also has promised to overhaul the country’s asylum system and once again make violent and serious offenders the priority for U.S. Immigration and Customs Enforcement (ICE).
Biden’s transition team has indicated that immigration policy is likely to remain a focus for DHS under Alejandro Mayorkas, his pick to be the department’s secretary. Mayorkas, the son of Jewish Cuban refugees, would be the first immigrant and the first Hispanic American to lead the department. The former head of U.S. Citizenship and Immigration Services who also served as DHS’s second-ranking official during President Barack Obama’s second term was one of the creators of DACA. His nomination was a sign that Biden seeks a Homeland Security chief familiar with the intense partisan politics of immigration enforcement but also someone who views immigrants as a benefit to the nation — the complete opposite of Trump’s view.
Mayorkas declined an interview request, but wrote on Twitter that immigration, for him, is deeply personal.
“When I was very young, the United States provided my family and me a place of refuge,” he wrote. “Now, I have been nominated to be the DHS Secretary and oversee the protection of all Americans and those who flee persecution in search of a better life for themselves and their loved ones.”
Trump stunned the nation as soon as he took office with a flurry of immigration policies that sowed chaos worldwide, particularly his travel ban on arrivals from majority-Muslim nations. Biden’s supporters hope he will reverse them with the same speed and fury.
Trump’s Homeland Security officials sent a signal to the nation’s 11 million undocumented immigrants: Look over your shoulders and be afraid. In Biden’s view, they should be allowed a path to citizenship. He is expected to recalibrate interior enforcement efforts in a similar fashion to Obama, when ICE agents were directed to take a more hands-off approach to immigrants who lack legal status but don’t commit violent or serious crimes.
Trump responded to a surge in Central American families at the Mexico border in 2018 by implementing a zero tolerance approach that Obama-era policymakers considered too abhorrent to try. U.S. border agents separated more than 3,000 children from their parents until a public outcry forced Trump to reverse course. Lawyers trying to reunite those families say they have not been able to contact more than 650 of the parents.
Biden denounced the family separations as “criminal." But Homeland Security officials say they urgently need lawmakers to fix a dysfunctional U.S. immigration system. They point to the historic border surge that followed Trump’s decision to end the separations, when smugglers dropped off busloads of families at the border with instructions to walk across and seek asylum.
U.S. authorities took nearly 1 million migrants into custody along the border in 2019, leaving detention cells packed and agents overwhelmed during the worst border crisis in more than a decade.
Biden plans to form a task force to improve coordination among federal agencies along the border. But how he would approach another mass influx of asylum-seeking families remains an open question. The United States lacks the ability to quickly process their asylum claims, and releasing them into the country while their cases are pending could be an incentive for new waves of irregular immigration.
Cameron French, a spokesman for the Biden campaign, referred inquiries about the president-elect’s plans to the campaign website.
Biden will be able to eliminate some of Trump’s hard-line policies with the stroke of a pen. Others are regulations that are likely to take months to change. A more lasting solution — immigration legislation passed by Congress — may not materialize if Democrats are unable to win Senate seats in Georgia in a runoff election in January.
Advocates for immigrants are pushing for major changes. But immigration experts say there is a gulf between their hopes and what is legally possible. A deeply divided nation and a Republican-leaning Supreme Court mean that the new administration is likely to face tough legal challenges, just as Trump did, although there is no heavyweight litigious entity on the right akin to the American Civil Liberties Union, which filed more than 400 immigration-related lawsuits during Trump’s term.
Biden is expected to rely heavily on his presidential authority to undo Trump’s immigration legacy.
“Here’s the bottom line: The horrible situation we see today when it comes to immigration in America was created by Donald Trump by executive order,” Sen. Richard J. Durbin (D-Ill.) said in an interview. “The good news is what is done by executive order can be undone by executive order. So we are setting out to get back to a stable, thoughtful system of immigration.”
Durbin said he recognizes the risk of a new migration surge at the border with policy changes and a new approach.
“That is a very realistic concern, and I share it,” he said. “That after all of the repression under Trump, that there will be a feeling that it’s going to be a complete reversal.”
Biden has pledged to rescind the Migrant Protection Protocols — also known as the Remain in Mexico program — that have sent more than 67,000 asylum seekers back to Mexico to wait outside U.S. territory while U.S. courts process their claims.
“Just doing away with it will invite chaos,” said Rodolfo Karisch, who retired in January as the chief of the Border Patrol’s Rio Grande Valley sector in South Texas.
The MPP process “has restored safety, allowed everything to catch up,” Karish said. “We still have covid out there, so are we simply going to want to admit people who potentially have covid into a country that already has high numbers?”
Karisch said his advice to the new administration is: “Proceed cautiously.”
“Rather than just coming in and saying, ‘We’ll scrap all this,’ look at which programs work and which ones you’ll want to change,” he said. “Because sometimes when you take an action, it can have unintended consequences, especially on the immigration side.”
Other Border Patrol veterans and officials who spoke to The Washington Post expressed similar alarm about the possibility of a new migration crisis in the middle of the pandemic. They warned that it would overwhelm a U.S. enforcement system that since March has aimed to rapidly expel border-crossers, rather than holding them in detention cells, where the risk of spreading the virus is high.
That has led to some speculation that Biden could leave in place the emergency pandemic enforcement mechanism known as Title 42, which agents rely on to send more than 90 percent of those who cross the border illegally back to Mexico in a matter of hours.
A federal judge ordered the Trump administration on Nov. 18 to stop“expelling” underage migrants and cast doubt on the broader legality of the emergency public health measures the government has used to impose strict border controls.
Border officials also have expressed concern that Biden will pull back 2,000 National Guard troops now assisting U.S. Customs and Border Protection, which has thousands of unfilled positions and struggles to recruit qualified candidates.