Can Biden Finally Fix America’s Broken Immigration System?

Can Biden Finally Fix America’s Broken Immigration System?

Originally Published in The New York Times

Opinion by Spencer Bokat-Lindell - January 21, 2021

He called part of Obama’s legacy “a big mistake.” Here’s how he plans to remedy it.

Credit...Illustration by The New York Times; photographs by Chang W. Lee/The New York Times, Adriana Zehbrauskas and Alyssa Schukar for The New York Times

Last February, back when the fate of the Democratic presidential primary was still uncertain, the journalist Jorge Ramos coaxed from Joe Biden a sentiment he was not in the habit of expressing: regret for the actions of his former boss Barack Obama.

Mr. Ramos was questioning Mr. Biden about the Obama administration’s immigration legacy, which includes the deportation of more than three million undocumented immigrants, an estimated 1.7 million of whom had no criminal record. “We took far too long to get it right,” Mr. Biden said of the administration’s early failure to focus only on those who had committed crimes. “I think it was a big mistake.”

On his first day as president, Mr. Biden took an extraordinary step toward remedying that mistake: Mere hours after he was sworn in on Wednesday, he not only revoked a Trump executive order that aggressively targeted undocumented immigrants for arrest, but also sent a sweeping proposal to Congress that promised, after four years of an explicitly anti-immigration administration, “to restore humanity and American values to our immigration system.” What would this restoration look like, and can it succeed? Here’s what people are saying.

Named the U.S. Citizenship Act of 2021, Mr. Biden’s plan, if made law, would be the most comprehensive immigration reform since the Reagan administration. Here are some of its key provisions:

  • An eight-year pathway to citizenship: The bill would allow the estimated 10.5 million undocumented immigrants who arrived in the United States on or before Jan. 1, 2021, to immediately apply for temporary legal status. (Current holders of temporary protected status, farmworkers and Deferred Action for Childhood Arrivals recipients would be able to apply for green cards immediately.) After five years, provided they pass background checks and pay their taxes, those with temporary status would be eligible for green cards, and after another three years, citizenship.

  • An overhaul of the family- and jobs-based immigration system:The bill promises to make it easier for family-based immigration — which was drastically curtailed under the Trump administration — by clearing backlogs, increasing per-country visa quotas and eliminating the so-called three- and 10-year bars that prohibit undocumented immigrants who leave the country from returning. At the same time, the plan promises to make it easier for high-skilled foreign workers to immigrate to and stay in the country.

  • Labor protections: The bill calls for the establishment of a commission involving labor, employer and civil rights organizations to strengthen protections from deportation for undocumented workers who face workplace retaliation and labor violations.

  • A plan to address the underlying causes of immigration from Central America: ​The bill would establish a $4 billion program to assist El Salvador, Guatemala and Honduras in mitigating poverty, crime and other conditions that drive people to flee their home countries, as thousands are now doing.

  • A reformed immigration court system: The bill promises to reduce immigration court backlogs — which number some 1.3 million cases — expand family case management programs and improve technology for immigration courts.

  • More investment in border security: Mr. Biden would build on his predecessor’s funding for immigration enforcement by authorizing record budget allocations to the Department of Homeland Security, with an emphasis on investing in screening technologies for drug smuggling and other forms of criminal activity instead of a physical border wall.

  • An improved asylum system: Throughout his presidency, Mr. Trump drew attention to the frequent mobilization of large groups of Central American migrants seeking refuge in the United States to restrict the right of foreigners to claim asylum. Mr. Biden’s plan would ease these restrictions while expediting and improving the asylum application process at ports of entry.

The path to citizenship is arguably the most significant component of Mr. Biden’s plan, and may draw broad support. According to the Pew Research Center, 75 percent of Americans, including 57 percent of Republicans, say there should be a way for undocumented immigrants already living here to stay in the country legally if certain conditions are met, even as a large majority support increased border security (though not in the form of a border wall).

“Legalizing all unauthorized immigrants, not just DREAMers, was once considered the ‘third rail’ in Democratic immigration politics,” Tara Golshan writes at Vox. “Republicans decried it as amnesty, and even moderate Democrats worried it would send the wrong message to people living unlawfully in the United States. Now it’s uncontroversial.”

The proposal has also earned praise from immigration activists. “We are truly in the cusp of a new day, and I could not be more thrilled,” Lorella Praeli, the president of Community Change Action, told The Times. “The new administration and Congress will face a political mandate to deliver on the vision for a more just and free country.”

Still others argue that Mr. Biden’s plan is too lenient and will invite more illegal immigration. “Amnesties have always created an incentive for more migrants to enter the United States illegally, as new migrants enter illegally hoping that they will be able to take advantage of the next amnesty,” Andrew R. Arthur writes at the Center for Immigration Studies. “Any amnesty that is not accompanied by a reform of the legal immigration system will have a ‘multiplier’ effect on the number of foreign nationals who ultimately remain in and enter the United States legally.”

Objections to Mr. Biden’s plan will not pertain strictly to law or demographics. While there is broad consensus that immigration benefits the economy overall, debate persists about whether and to what extent an increase of so-called low-skilled, undocumented immigrants depresses the wages of similar workers already in the country, especially those without high school degrees.

“Allowing a massive flow of new immigrants — the inevitable result of any amnesty plan — will also help Republicans complete their transformation from being the party of Wall Street (which has abandoned them in recent election cycles) to that of the working class,” Jonathan Tobin writes in Newsweek. “Such voters rightly understand that such a measure at a time of high unemployment is a gift to large corporations, but a cruel blow to Americans — both whites and minorities — who are sinking further into poverty as a result of pandemic.”

Similar concerns have been raised about the plan’s implications for high-skilled workers already in the country. “The above executive-based proposals will apparently provide domestic employers with more skilled labor options, but also will pose a challenge to the domestic labor market by increasing the competitiveness of the pool of potential skilled employees,” Ediberto Román argues in Bloomberg Law. “In fact, some of the Biden proposals actually expand the pool of domestic workers, i.e., his DACA and DAPA reinstatement plans.”

The population of undocumented immigrants in the United States began to grow with the overhaul of immigration policy in 1965, which imposed the first limits on immigration from countries in the Western Hemisphere. That overhaul coincided with the end of the Bracero program, which was designed to fill labor shortages for low-paying agricultural jobs during World War II by allowing farmworkers from Mexico to work legally in the United States on a temporary basis and travel back and forth between the two countries.

When avenues for legal migration were suddenly restricted after 1965, enforcement efforts had the opposite of their intended effect: Since 1996, as Dara Lind explains at Vox, most undocumented immigrants have had no way of applying for legal status — even if they marry a U.S. citizen.

In recent years, illegal immigration has decreased from Mexico but increased from Central America and Asia, with the majority occurring because of visa overstays rather than border crossings. As of 2017, about 4.95 million of the 10.5 million undocumented immigrants in the United States were from Mexico, 1.9 million were from Central America, 1.45 million were from Asia, and 500,000 were from Europe and Canada, according to the Pew Research Center.

Senator Charles Schumer of New York, the majority leader, vowed to take up Mr. Biden’s immigration proposal, calling it “one of the most important things a Democratic Congress can do.” While Mr. Obama campaigned on the promise of bringing undocumented immigrants “out of the shadows,” he didn’t follow through when Democrats had control of both congressional chambers, and the promise died in 2013 in the Republican-controlled House of Representatives.

Nine years later, Mr. Biden’s plan is likely to face fierce opposition from Senate Republicans. “The political wrangling over Biden’s plan is going to be significant, and getting Congress to act will take nothing short of a miracle,” Scott Martelle writes in The Los Angeles Times. “Few issues in contemporary American politics are as thorny as immigration, pitting those who believe in living up to our history as a nation built on immigration against folks who would prefer to keep the door only slightly ajar.”

For example, Senator Marco Rubio, Republican of Florida, has already called the proposal a “nonstarter,” adding that “there are many issues I think we can work cooperatively with President-elect Biden, but a blanket amnesty for people who are here unlawfully isn’t going to be one of them.”

Confronted with such opposition, immigration advocates are mulling alternative ways of passing parts of Mr. Biden’s proposal, as Nicole Narea reports for Vox. For example, the advocacy group has estimated that about 5 million of the 10.5 million undocumented immigrants in the country are essential pandemic workers, so some congressional Democrats are planning to draft a stand-alone bill to give them access to green cards.

“I would be surprised if anything big could get through,” Sarah Pierce, a policy analyst at the Migration Policy Institute, told Ms. Narea. “The bandwidth couldn’t be more limited. The pandemic is going to be that the big focus, and it’s going to be hard to draw people’s attention away from that. So I think it’s probably going to be something more piecemeal.”

Mr. Biden already took steps to undo some of the Trump administration’s immigration policies on Wednesday by issuing a suite of executive orders that fortified DACA, halted construction of the border wall with Mexico and rescinded the so-called Muslim ban.

But reversing his predecessor’s legacy entirely so that he can forge his own — even with Congress’s help, and especially without it — will not be easy. “There’s so much change that has happened in the last four years,” Ms. Pierce told the Times editorial board. “There’s no way a new administration could reverse things in four or even eight years.”



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