Originally Published in Vox
Nicole Narea - February 3, 2021
Obama had a mixed record on immigration. Biden is striving to do better.
In his first days in office, President Joe Biden has made immigration a key priority for his administration, seeking to distinguish himself from another “deporter in chief,” as activists once called President Barack Obama.
He has issued a series of executive actions aimed at dismantling the Trump administration’s nativist legacy, unveiled an ambitious legislative proposal for immigration reform, begun to roll back a program that has left asylum seekers trapped in Mexico, and sought to enact a 100-day pause on deportations.
On Tuesday, he issued another three executive orders that create a task force to reunite families separated under President Donald Trump and implement measures to remove obstacles to noncitizens seeking to naturalize, enter the US on visas, and obtain asylum or other humanitarian protections. White House press secretary Jen Psaki said to expect additional announcements, including an expansion of the US refugee program, going forward.
For immigrant communities, those changes can’t come soon enough. Democrats have long promised to create a more just immigration system, and Biden’s initial actions have built confidence among some immigrant advocates that he intends to finally deliver, though they wish he would act even more quickly on behalf of people whose lives are hanging in the balance.
The task before Biden is immense. Immigrant communities expect him not just to revert to the Obama-era approach to immigration enforcement, which involved record deportations and an expansion of family detention, but to improve on it. And while Obama failed to pass comprehensive immigration reform or even a narrow bill offering legal protections to “DREAMers” who came to the US without authorization as children, activists see immigration reform as an imperative and are counting on Biden to pass it by whatever means possible.
Though Biden has largely stood by his record as vice president, he has acknowledged that the Obama administration stumbled on immigration, particularly with regard to mass deportations.
“We took far too long to get it right,” Biden told Univision last February. “I think it was a big mistake.”
Since Obama was in office, the public has become more favorable to immigration, in part as a reaction to the shock-and-awe tactics behind the Trump administration’s high-profile travel ban and family separation policies. The Democratic Party is also more unified on immigration, a topic they once regarded as politically radioactive.
The question is whether Biden will put real weight behind his legislative proposals and urgently pursue administrative solutions for a more humane immigration enforcement system — or whether immigration will recede into the background among competing priorities, as it did with Obama.
“That’s exactly what Obama did,” Erika Andiola, chief of advocacy at the immigrant rights group Raices, said. “It was a lot of talking and narrative and rhetoric that they were going to pass immigration reform. But there wasn’t necessarily a real strategy to get it through.”
Biden didn’t enter office with a clean slate, but with the baggage of Obama’s record and his own as vice president. That record is a study in contradictions that at times led to a strained relationship with immigrant advocates, defined by policies that simultaneously alienated and criminalized immigrants, as well as brought them out of the shadows.
Immigrant communities who acutely remember Obama’s empty promises are skeptical that Biden will choose anything but the path of least resistance: going back to the way things were. To heal those decade-old divisions, Biden still has much to prove.
Unlike Obama, Biden is pushing immigration reform early
Biden unveiled an outline of his proposal for comprehensive immigration reform on his first day in office. Though the full bill has yet to be introduced in Congress and is unlikely to survive in its current form, Biden’s decision to push the proposal early represents an improvement over the Obama White House, which initially failed to prioritize immigration reform and has faced criticism for squandering its best chance at getting it done in 2013.
“The administration is building upon the lessons learned under Obama,” said Clarissa Martínez-de-Castro, the deputy vice president of policy and advocacy for UnidosUS, a prominent Latino rights group formerly known as the National Council of La Raza. “I think that the real push for immigration came more in Obama’s second term. And we have seen Biden make that a priority from the beginning.”
Obama promised repeatedly during his 2008 campaign that he would introduce a comprehensive immigration reform bill during his first year in office, claiming he would make it a “top priority.” Much like Biden, Obama said he would make bringing the then 11 million undocumented immigrants living in the US “out of the shadows” a centerpiece of his plan.
“I think it’s time for a President who won’t walk away from something as important as comprehensive [immigration] reform when it becomes politically unpopular. And that’s the commitment I’m making to you,” Obama said at the July 2008 annual meeting of the National Council of La Raza.
But he didn’t deliver. Immigration wasn’t mentioned in his 2009 inaugural address. During his first year in office, the focus was primarily on economic recovery following the 2008 financial crisis and the health care reform bill.
Republican Sen. Lindsey Graham — who had been working on an immigration bill with Democratic Sen. Chuck Schumer — had warned that the passage of the Affordable Care Act would “poison the well” on any future bipartisan reform, including on immigration. Even Democrats were reluctant to take up the mantle, Obama wrote in his 2020 memoir.
“With the economy in crisis and Americans losing jobs, few in Congress had any appetite to take on a hot-button issue like immigration,” he said.
But Obama also did little to publicly drum up support for reform during his first term. His first speech as president focusing exclusively on immigration policy didn’t come until July 2010, and an immigration bill that incorporated his priorities for reform was only introduced in the Senate that September, right before the midterm elections. The legislation, largely considered to be just a messaging tool, died a quiet death once Democrats lost control of the House and the new Congress was seated.
Obama admitted during his 2012 campaign that the “biggest failure” of his first term was his inability to get comprehensive immigration reform done, saying that he couldn’t find a single Republican who was willing to work with him on the issue.
In 2013, Republicans’ political calculus seemed to have changed: After Mitt Romney’s loss in 2012, when he won little over a quarter of the Hispanic vote, a 100-page Republican National Committee autopsy argued that passing immigration reform was critical. The bipartisan “Gang of Eight” bill, which passed the Senate 68-32 in 2013, would have reinvented the immigration system, creating a 13-year path to citizenship for unauthorized immigrants and a new visa for low-skilled workers. It also would have required employers to verify the employment authorization of their workers and shifting away from policies emphasizing family ties in favor of work skills.
It was Congress’s best chance of passing comprehensive immigration reform in a generation — but House Republican leadership refused to hold a vote on the bill. Though negotiations continued, GOP willingness to get immigration reform done had faltered by 2014. Eric Cantor, then the second-ranking House Republican, had lost reelection to an anti-immigrant challenger, and a crisis had emerged at the southern border, where tens of thousands of Central American families and children were seeking refuge. A rattled Republican Party reacted by embracing anti-immigrant rhetoric, leaving an opening for a candidate like Trump in 2016.
Obama eventually abandoned hope of working with Congress, instead pursuing executive actions that created the Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) programs.
Obama was ultimately unable to overcome Republican opposition to comprehensive immigration reform. And in the years since his presidency, the Republican Party has only leaned into its anti-immigrant rhetoric, meaning that Biden isn’t likely to have any more success in striking a grand bargain on reform.
Biden’s bill, which has been embraced by immigrant advocates, is unlikely to pass in the Senate, where Democrats have a narrow majority and it would need at least 60 votes in order to survive the filibuster. Though Democrat Bob Menendez is leading negotiations in the Senate, it seems unlikely that 10 Republicans will sign on to the bill after some have already expressed concern that it doesn’t include sufficient border security provisions.
But Biden’s hands aren’t tied. Advocates are pushing him to bypass Republicans and ensure that at least parts of his bill go on to become law in other forms.
“If we’re going to get anything on immigration that is humane, Democrats are going to have to get it done on their own,” Andiola said.
Biden could try to incorporate a path to citizenship for the country’s 5 million undocumented essential workers in a Covid-19 relief bill, as a group of 100 Democratic lawmakers have recently demanded. Alternatively, the legalization pieces of Biden’s bill — including the path to citizenship for essential workers and DACA recipients — could be incorporated in a budget reconciliation bill, which could pass by a simple majority and without a single Republican vote.
Activists are hoping to see movement on that kind of immigration legislation in the next two to three months.
“After that, I am going to be a lot more skeptical of what can be done,” Andiola said.
Biden is seeking to distance himself from Obama’s record deportations
After being asked to answer for Obama’s legacy on deportations on the campaign trail, Biden has made an early effort to show that his administration will rethink its enforcement priorities in order to build a more humane system. His 100-day pause on deportations, which his administration is now defending in court, is a product of that effort.
Biden had initially resisted the idea but eventually pledged to implement a deportation moratorium last February under pressure from immigrant activists. His administration has framed the policy as a way to “review and reset enforcement priorities” after the Trump administration sought to ensure that no undocumented immigrants — including families and longtime US residents — were safe from deportation.
Though a federal judge in Texas has temporarily blocked the policy from going into effect, advocates still considered it to be an important signal that Biden is not simply going to revert to Obama’s immigration enforcement tactics.
“The fact that they did it in the first two days of the Biden presidency — it’s a very different starting point than we had under the Obama administration,” Andiola said.
Obama, by contrast, initially maintained the status quo on immigration enforcement, which he saw as a means of building goodwill with Republicans ahead of immigration reform negotiations.
“My team and I had made a strategic choice not to immediately try to reverse the policies we’d inherited in large part because we didn’t want to provide ammunition to critics who claimed that Democrats weren’t willing to enforce existing immigration laws — a perception that we thought could torpedo our chances of passing a future reform bill,” he wrote in his memoir.
Among the Bush-era policies that Obama kept intact and expanded was the “Secure Communities” program. Meant to deport primarily people with records of violent crime, the program allowed local law enforcement to share the fingerprints of anyone booked in jail with federal immigration authorities so that they could identify unauthorized immigrants and determine whether to deport them.
But it proved difficult to draw the line between who constitutes a threat and who doesn’t. It wasn’t just violent criminals who were deported, but also individuals with minor infractions such as traffic tickets.
In 2014, Obama ended the program, which had driven a wedge between his administration and immigrant advocates, and instead instructed US Immigration and Customs Enforcement to deport “felons, not families.” He sought to narrow the people who were targeted to those who had already been ordered deported by an immigration judge, engaged in terrorism or gang activity, recently arrived in the US, were caught trying to cross the border without authorization, or had committed multiple misdemeanor offenses or a felony.
But ICE “largely ignored” those reforms, an August 2016 report by Syracuse University’s Transactional Records Access Clearinghouse found. The agency was still targeting individuals with no criminal record en masse.
“Under Obama, there was this narrative that they were deporting ‘criminals’ and ‘felons,’” Andiola said. “In reality, people who were being deported were folks who had a conviction that, if they were a citizen, would have gotten them a few days in jail or that they could have gotten expunged. But unfortunately, a lot of these folks ended up having to be broken away from their families.”
Obama also presided over an expansion of immigration detention, particularly for families. When more than 237,000 Central Americans, including over 60,000 unaccompanied children, showed up at the southern border in 2014, the administration was caught unprepared. Border officials detained children in jail-like facilities for longer than the 72 hours that is permitted by law. The administration set up temporary housing and tried to detain migrant families for extended periods.
Eventually, courts stepped in to put an end to these practices. And in 2015, apprehensions at the border had halved — but that didn’t mean the crisis had ended. The Obama administration had simply outsourced the task of deporting asylum seekers to Mexico, “as if continuing to push the problem out of sight and out of mind might solve it,” historian Adam Goodman writes in The Deportation Machine.
Meanwhile, Obama didn’t scale back immigration detention. By the final year of his presidency, the US was detaining about 360,000 immigrants annually for an average period of 35 days and at a daily cost of $126.67 per person.
Advocates are concerned that Biden will similarly make promises to detain and deport only people who pose a risk to safety and security, but that families and people with no criminal records will again be targeted.
Biden has announced preliminary priorities for enforcement, including people who committed felonies, who engage in acts of terrorism or espionage, or who otherwise pose a national security threat to the US. People who were apprehended while trying to cross the border after November 1 or who arrived in the US thereafter are also being prioritized.
But immigrant advocacy groups have reported that ICE has yet to adapt, with numerous asylum seekers and longtime US residents being deported on flights in the middle of the night despite pending claims for protection in the first weeks of the Biden presidency. Even though the deportation moratorium has not been permitted to go into effect, the Biden administration could be exercising prosecutorial discretion to prevent deportations from going forward on an individual basis.
Advocates have consequently expressed concern about Biden’s ability to implement his enforcement priorities and meaningfully alter ICE’s culture.
They’re also planning to push him to further narrow those priorities so that they exclusively focus on real threats. That involves taking a hard look at the intersection of bias in the criminal justice system and in the immigration system.
“There are so many stories of immigrants that fall into these categories and unfortunately, they’re criminalized,” Andiola said. “There are people falling through the cracks.”
Biden is building on Obama’s successes on immigration
While Biden will be expected to advance from the Obama approach to immigration enforcement and reform, he is also standing on his predecessor’s shoulders in some respects. During his second term, Obama embraced sweeping executive actions to protect immigrants following the failure of comprehensive immigration reform — and Biden is charged with finishing what Obama started.
Chief among Biden’s priorities is protecting DREAMers, undocumented immigrants who came to the US as children and in many cases know no other home. Their fate has been a subject of contentious legislative debate for years.
The primary legislative proposal to attempt to tackle the problem was the DREAM Act, first introduced in 2001, which would have offered unauthorized immigrant students the opportunity to apply for provisional protection from deportation and then a green card. The bill came close to becoming law in 2010 with Obama’s support, clearing the House but falling five votes short of the 60 required for it to proceed in the Senate.
Facing opposition from Republicans, Obama ultimately decided to go it alone and created DACA in 2012 via executive action — what was then considered a risky move but has become one of the defining moments of the Obama administration on immigration. The program allowed young, unauthorized immigrants who came to the US before age 16 to obtain legal status and work authorization if they pursued education or service in the armed forces or Coast Guard and passed a background check.
Obama had previously voiced misgivings about unilaterally suspending deportations on multiple occasions. When asked about his goals for immigration reform in a 2010 interviewwith Univision, Obama said he needed Congress’s support: “I am president, I am not king.” The following year, Obama said it was “just not the case” that he could suspend deportations through executive order.
When he announced the DACA program in 2012, Obama conceded that the program was only intended to be a “temporary stopgap measure” and “not an amnesty.”
“This is not a path to citizenship. It is not a permanent fix,” he said.
Republicans have decried the program as an unconstitutional power grab. In 2014, Obama nevertheless tried to expand its protections to the parents of children born in the US through the DAPA program, but the Supreme Court prevented it from going into effect.
Eight years later, DACA has survived Trump’s attempts to end it and has become more permanent than Obama anticipated, earning widespread public support. More than 700,000 people have relied on it to live and work in the US free of fear from deportation.
Ensuring that DREAMers secure a path to citizenship, which seemed an impossible goal under Obama, is now the bare minimum of what Biden is expected to achieve. Advocates are waiting to see if Biden puts serious political capital behind legalizing as many undocumented immigrants as possible through Congress. That includes not only the most sympathetic populations of immigrants — such as DREAMers and now essential workers — but all the 10.5 million undocumented people living in the US.
And in the absence of progress in Congress, advocates are counting on Biden to use executive action aggressively to implement reform. Obama’s creation of DACA paved the way for Biden to do so, and so far, he has brought the power of his office to bear with an initial flurry of executive actions on immigration.
“It’s only the opening act,” Lorella Praeli, president of the immigrant advocacy group Community Change Action, said in a press call. “They have the authority to lean in and to use every tool at their disposal to deliver. That’s the opportunity here.”