Special Edition—New Biden immigration plan details and the all-important appointments—11-13-20
Immigration news, in context
This is the fifty-seventh edition of BORDER/LINES, a weekly newsletter by Felipe De La Hoz and Gaby Del Valle designed to get you up to speed on the big developments in immigration policy. Reach out with feedback, suggestions, tips, and ideas at BorderLines.News@protonmail.ch.
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This week’s edition:
More details about the specifics of President-elect Biden’s immigration plans are starting to trickle out, answering some questions while raising others. At the same time, the appointments speculation bonanza is in full swing; rather than jump into the guessing game, we’ll break down the significance of certain appointments for whoever ends up in those roles.
Perhaps the most significant detail to emerge in the last week is confirmation of a plan to impose some sort of 100-day deportation moratorium once Biden takes office, as confirmed to CBS News’ Camilo Montoya-Galvez by people familiar with the transition. There had been questions about whether this would still form part of Biden’s immigration initiatives when it didn’t feature in his campaign’s official immigration platform despite him having previously suggested it was his position.
According to the CBS report, the freeze would take place so that the administration could reevaluate ICE’s enforcement priorities (more on that below), though it remains unclear what would happen to the people already in detention. For people who already have orders of removal, federal courts have ruled that the purpose of civil immigration detention must be to ensure that they can be expeditiously deported (understood as within six months), and a prohibition on such deportations for an extended period of time could open the door for Habeas petitions for release from detention.
There is also the issue of what a review of the enforcement and adjudication system would entail, beyond the curbing of collateral arrests that was already mentioned. The suggestion now appears to be that the Biden administration would narrow enforcement priorities, perhaps by re-instituting a semblance of an Obama-era graded prioritization scheme, with recent entrants and people convicted of felonies at the top, and longtime undocumented residents with no criminal contact de-prioritized completely. This begs the question of what happens with the Secure Communities program, the main vehicle of data from local criminal justice systems to ICE. Will Biden replace it with Obama’s Priority Enforcement Program again, or something different? It might seem esoteric, but the flow of that data is crucial for the agency to carry out arrests.
Another open question is the touchy subject of the detention of asylum seekers. While there has been no explicit confirmation of this, we can probably assume that Biden would terminate the CDC order that has led to the expulsion of thousands of would-be asylum seekers. He has made comments to the effect that the Migrant Protection Protocols program and metering would be terminated, and the transition told CBS that the third-country asylum agreements would be canceled. That doesn’t even begin to fully roll back the plethora of asylum restrictions that the Trump administration put into place, but it does create the prospect that large numbers of asylum-seeking families will be presenting at ports of entry and crossing the southern border in the first months of a Biden administration, and actually be allowed to present claims without being turned away, sent to other countries, or expelled. This also means that many families will be probably initially detained, and the administration will have to figure out the logistics of doing so safely and complying with the Flores settlement, which would require unaccompanied minors and families with children to be quickly released from detention.
Then there’s the subject of the broader detention system itself, a horrid cesspool of gross negligence and rights abuses. There has been no shortage of coverage on the sheer incidence of incompetence or malice that have put the life and safety of detainees at risk, leading to skyrocketing deaths. Even if the Biden administration completely shifts the profile of people being arrested by ICE in the interior of the country, there would still be people going into a detention system in which any effort at meaningful reform would be a massive undertaking.
Other details that appear to be confirmed are Biden’s plan to raise the refugee cap 125,000 for the next fiscal year, greater than it was even pre-Trump. A salient question that some experts have already raised is how to accommodate that increased flow of refugees when much of the infrastructure in place via public-private partnerships to receive them and help them get set up has deteriorated during the Trump era. Additionally, Biden will end the third-country asylum agreements, though details are still scant on how exactly he would dial with the plethora of other asylum-related restrictions.
When people think about immigration enforcement, they think of DHS and the agencies under its purview: ICE, Customs and Border Protection, and so forth. But the Justice Department is instrumental in the deportation process too. The Executive Office for Immigration Review, the agency that runs the nation’s immigration court system, is part of the DOJ. Under Trump’s numerous attorneys general, EOIR has become increasingly draconian, emphasizing “efficiency” by pushing judges to complete more cases in less time, implementing caseload quotas, going on a hiring spree (with many judges having little immigration experience or coming from enforcement backgrounds), and ramping up the use of video hearings facilitate the use of detention and hurt immigrants’ chances of finding legal representation.
All of these steps were ostensibly taken to reduce the growing backlog of immigration cases, which sat at 500,000 a few months before Trump’s inauguration. Rather than reducing the backlog, however, DOJ’s policies under Trump added to it—there are now more than 1 million active immigration cases.
One contributor to the backlog’s seemingly nonstop growth was former attorney general Jeff Sessions’s 2018 decision to end administrative closure, a mechanism that lets immigration judges indefinitely postpone cases rather than issuing a decision. Administrative closure doesn’t grant people status, but it essentially gives certain immigrants the ability to stay in the U.S. without fear of being deported, albeit in a limbo state. It is permitted again in the Fourth and Seventh Circuits after federal court rulings, but remains unavailable elsewhere, not only preventing cases from being closed but forcing the reopening of tens of thousands. Biden’s attorney general could easily issue a presidential decision—as Sessions did—reinstating the use of administrative closure, which would potentially let judges close thousands of cases.
Sessions ended administrative closure through a presidential decision, Matter of Castro-Tum. The ability to review past cases—and to appoint immigration judges to the Board of Immigration Appeals, the immigration courts’ appellate body—is a key aspect of the attorney general’s role as it relates to immigration. As Tanvi Misra reported last year for CQ Roll Call, DOJ changed its hiring practices to add more punitive judges to the BIA, which has, as our Felipe De La Hoz wrote for The Nation, become another enforcement arm under Trump.
Trump’s attorneys general issued a series of precedential decisions further limiting who could qualify for asylum, adding new hurdles for migrants and, in the rare cases where they have them, their lawyers. In Matter of AB-, Sessions ruled that victims of interpersonal violence—such as domestic violence or gang violence—don’t meet the qualifications to receive asylum. In a subsequent decision, attorney general Bill Barr ruled that being a member of a family didn’t constitute the “social group” qualification for asylum. In other words, if someone is persecuting you because of who your relatives are—say, if your brother is being recruited for a gang and you get targeted as a result—then you won’t qualify for asylum.
These decisions seem like disputes over how to interpret immigration law, but they’re ultimately attempts to reduce the number of successful asylum claims, particularly those filed by migrants from Central America, from which the majority of asylum seekers hail. Biden’s attorney general could overturn those decisions as well, and could potentially issue subsequent ones expanding the scope of asylum rather than limiting it.
This is perhaps the most public-facing immigration-related federal government role in the country. The Homeland Security secretary’s primary function for these purposes is to set overarching policy for the immigration enforcement and adjudication components, such that it is self-consistent and advancing the president’s agenda. The component heads, as we’ll get into below, have a lot of say in setting agency policy and overseeing daily operations, but the more consequential changes, such as, for example, the imposition of the Migrant Protection Protocols program are put in place at the secretary level. Other agency shifts in prioritization and operational stance, such as on collateral arrests, would generally also require secretary sign-off.
Ultimately, it is also up to the DHS secretary to determine the best response when particular crises arise, for example sudden growths in the volume of unaccompanied minors and families arriving at the southern border at once, as they did in 2014 under the Obama administration. In that case, the decision was made to build the family residential centers to detain families together, leading to the controversial imagery of children in wire mesh cages.
To an extent, the Homeland Security secretary is at the forefront of messaging, to Congress, the U.S. public, and their own agencies about the direction and primary objectives of the immigration system. Even when not specifically enacting new policy, the secretary’s public stances inform how the rest of the department approaches its work.
In February 2017, less than a month into Trump’s first term, the head of Immigration and Customs Enforcement issued a memo announcing the agency’s new enforcement priorities. The memo, obtained by ProPublica, instructed officers “take enforcement action against all removable aliens encountered in the course of their duties.” This was a clear shift from the agency’s enforcement directive during the latter years of the Obama administration—during which immigration officers were told to arrest immigrants whose deportation would “serve an important federal interest”—and towards a more punitive stance. (That said, it’s worth noting that Obama-era enforcement priorities weren’t always so narrow, and that the Obama administration did indeed deport millions of immigrants.)
Under Trump, ICE agents have been given more latitude to make “collateral arrests.” Put simply, ICE agents go into the field looking to arrest specific people—those for whom they have a notice to appear in immigration court, a document signaling the government’s intent to deport them. If they happen to find other people who may be undocumented or otherwise in violation of immigration law while arresting the person they’re looking for, the agents can arrest those people as well, provided they can’t prove they have legal status. The administration recently expanded ICE officers’ arrest capabilities even further by broadening “expedited removal,” a sped-up deportation process.
Biden’s ICE director could be instrumental in shifting away from this enforcement style. The agency could tighten its enforcement priorities, forbidding collateral arrests. The Biden administration could scale back expedited removal or even do away with it altogether. (Although expedited removal has been part of the law since 1996, the statute was only expanded to its full scope under the Trump administration; Biden’s ICE director could issue a directive ending or limiting its use.)
Another factor is where arrests happen. Under Trump, ICE returned to the Bush-era practice of massive workplace raids. In addition to facilitating the arrests of hundreds of people, these raids provided the Trump administration with what it desired most: spectacle. In 2019, ICE arrested more than 600 workers at several chicken processing plants in rural Mississippi—the largest workplace raid in the agency’s history.
Under Biden, the director of ICE could shift away from workplace raids, as was the case during the Obama administration. It could add additional“sensitive locations,” such as courtrooms, where arrests would be prohibited except in special circumstances
There’s also the question of detention. The Trump administration expanded the use of detention, entering into contracts for new facilities, many of which are in the Deep South. Under Trump, ICE field offices have denied parole for detained migrants en masse, keeping them detained indefinitely throughout the duration of their hearings. The detention of asylum seekers, who often do not meet the criteria for mandatory detention under the law, has been particularly contentious under Trump and could potentially be reversed under Biden.
Moreover, it’s possible that Biden’s ICE director could issue new standards for ICE detention, although that may be less likely, given the abysmal state of detention facilities under the Obama administration. It’s likely that a Biden administration will also move away from the use of private detention, particularly if pressured to do so by advocates, but there’s also the matter of state and county-run detention facilities, which have also come under fire for being substandard.
The U.S. Citizenship and Immigration Services has been at the forefront of what some observers term the “paper wall” that the current administration built to keep curb legal immigration. The agency was never before understood as part of the enforcement sphere, but rather as a services provider to immigration benefits applicants. That changed under Trump (and really, Stephen Miller), who reoriented it towards being an executor of White House policy.
Higher-level policy decisions like who gets to apply for immigration benefits happen at a level above the agency’s head, but much of the nitty-gritty day-to-day operational decisions can be hugely consequential to the functioning of the entire adjudicative system. Take, for example, the infamous “blank spaces” policy that USCIS instituted earlier this year. Under it, certain applications were automatically rejected if they did not have every field filled out, even when it made no sense to do so. This led to bizarre situations like crime victims and asylum seekers having applications rejected for not filling out the current location field for deceased relatives. Attorneys quickly adapted to the new reality, but not before an untold number of applications were rejected; those without lawyers would have no way of knowing about the onerous and pointless new requirements.
By and large, submitting and processing applications for all types of legal immigration benefits has become more challenging and unpredictable, with a greater volume of requests for additional evidence, applications rejected outright without even the possibility to correct mistakes, and a growing number of blatant errors from USCIS staff itself. Processing times have grown to the extent that certain adjudications take months or even years longer than they did a few years ago. These types of hurdles don’t, on the surface, affect the ability to apply for DACA, visas, residency, and citizenship, but in practice lead to people simply giving up or not bothering in the first place.
While the USCIS director doesn’t have the power to unilaterally set higher-level policy, they do play a significant advisory and implementation role in big immigration regulatory decisions, including, for example, how to interpret the public charge rule and whether to issue or terminate Temporary Protected Status.
As with the other agency heads we’ve discussed, the main import of the CBP commissioner will be how they choose to enact presidential and DHS policy on the ground. A particular point of interest will be the handling of Border Patrol and the longtime strategy of “prevention through deterrence,” a diplomatic way of saying that a more dangerous, deadlier border will dissuade more migrants from even trying to cross.
The strategy originated in the Clinton years and has been used since, with crossings becoming steadily deadlier in the Trump term. The Border Patrol’s movements, patrol strategies, and tactics could have a huge impact in either direction. Something as simple as stopping the harassment of border humanitarian groups and the destruction of humanitarian supplies could save lives. There’s also the obvious fact that border agents have long been trained to interdict and detain a very different demographic (single men of working age) from the people they’re mostly dealing with now (families of asylum seekers, often with small children). The Obama administration dragged its feet on the retraining question and Trump’s people seemed to relish that no special accommodations were being made for this new type of migrant, but a new administration could finally address the mismatch in skill sets.
Beyond that, many of the anti-asylum initiatives rolled out by the Trump administration were handled in practice by CBP; for example it is CBP’s job to bring migrants in the MPP program to the asylum tent courts, and enact the metering program. If a Biden administration were to reverse course on these programs, it would be a CBP commissioner’s job to ensure that the transition to a prior status quo would go smoothly, and people were again accepted for normal asylum processing.