US IMMIGRATION IN THE ROARIN’ ‘2020S: WHAT TO EXPECT FROM A BIDEN PRESIDENCY


Tuesday December 1, 2020


By: Attorney Robert Perkins, ESQ and Lauren Gabbaian
Immigration Professor’s Corner

 

American immigration policy under President Donald Trump ultimately became an exercise in pushing the powers of the executive branch to their limits with the apparent goal of eliminating immigration altogether. For example, the number of visas made available to refugees was about 110,000 at the beginning of 2016, and that number was slashed nearly 90 percent by some tallies to about 15,000 by the end of 2021 – the lowest it’s ever been. President-Elect Biden has stated he plans to raise that number up to 125,000. Further, he has pledged to stop the highly controversial policy of separating families at the border and wants the government to help reunite the hundreds of people who remain apart. Biden is also likely to remove Trump’s travel ban on threatening countries including Iran, Nigeria, Syria, Venezuela, and North Korea, that was initially criticized for focusing on Muslim-majority countries before being expanded. And he is expected to stop construction on Trump’s infamous Border Wall by cutting off Pentagon funding.

With respect to immigrants already in the country, the Trump administration attempted to close the door on DACA (the Deferred Action for Childhood Arrivals). Biden will likely reopen the program, shielding some 650,000 undocumented immigrants brought to the US as minors from deportation. He is also expected to install new leadership in key immigration agencies to undo many Trump regulations, and to limit deportations only to those with serious criminal records in the United States.

These changes are all projected to happen in the early part of 2021, as they can mostly be handled by executive order. Some other Trump policies will be more difficult and/or time-consuming.

In February 2020, the Trump Administration instated what critics call a “wealth test” on immigrants applying for an adjustment of status. Though there have always been some minimal checks on an immigrant’s ability to sustain himor herself, the Public Charge Rule as newly implemented added an extensive application and requirements that immigrants not be reliant on government benefits. Courts have stopped and restarted enforcement on this rule multiple times over its short lifetime, but for the Biden Administration to return it to more liberal standards in the long-term, experts believe a lengthy notice and public comment period will be required.

It will take even more effort to undo Trump policies that made immigration significantly more difficult for refugees. Specifically, this pertains to the Migrant Protection Protocols, which require asylum-seekers to stay in Mexican border cities while waiting for immigration court hearings in the US, and a rule requiring that Central American refugees apply for protection in a third country before reaching a US port of entry. Not only are these complicated policies that will likely require the cooperation of foreign governments to unravel, but Biden will also want to preserve the executive privilege that put the policies in place and to limit an explosion of new arrivals.

Perhaps the most ambitious of President-Elect Biden’s immigration goals is to push forward immigration reform. Though he has pledged to send such a bill to Congress on the first day of his presidency, the outcome of two Senate run-off elections in Georgia in January 2021 will decide whether or not this reform bill can become law. The democrats need to win both seats to achieve control of both houses of congress, thereby making progressive legislation possible for the first time in nearly a decade.

Critics also question whether Biden will actually make these changes a priority. While immigration reform, especially with respect to policies that separated infants from their parents and put them in often highly unsanitary “cages,” has been at the top of Americans’ minds frequently over the last four years, the coronavirus and protests against racial inequality may have eclipsed these concerns. In fact, though the Biden campaign posted a comprehensive immigration plan to their website (joebiden.com/immigration), no similar plan is anywhere to be found on the new Official Transition Website (buildbackbetter.gov). In fact, under the header “Priorities,” the only listings are “COVID-19,” “Economic Recovery,” “Racial Equity,” and “Climate Change.”

Much is likely to change in the realm of immigration law over the next several months, if only just as the result of the changing of the guard. At the very least, Trump advisor Stephen Miller, a vocal anti-immigration policymaker, will no longer be calling the shots.



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