How will the upcoming presidential election affect immigration?
We have talked here and on our Facebook page about how immigration may be the arena where President Trump has had the most impact. He didn’t build his wall—though he did get started—nor did he stop immigration across America’s southern border. He did make it harder and more painful to immigrate to America though, unspeakably so when he instituted the policy of separating children from their parents. The 545 children whose parents can’t be found testifies to the inhumanity that his administration would stoop to in an effort to discourage desperate people from fleeing the danger, criminality, and abject poverty they faced in Central America and looking for help in the United States.
As immigration lawyers, we have seen that same kind of friction applied to the processes, making the mechanics of legal immigration more difficult and discouraging.
What will change if Joe Biden is elected? Here’s what’s on the table:
- DACA - Biden has vowed to make the Deferred Action for Childhood Arrivals program permanent on day one of a Biden Administration. That would be welcome not because it’s the most impactful thing he could do, but because it simply has to happen. Clearly, nothing can be done to affect the millions of immigrants in legal gray areas until the almost 700,000 DACA recipients are free from the possibility that they could be sent back to countries that were never their homes.
- Muslim Travel Ban - Biden has also vowed to overturn this on what is shaping up to be a very busy first day in office. Again, this is easy work, but as long as America has an institutionalized antipathy for some religions and cultures, it’s not living up to its ideals.
- Asylum - “He will secure our border, while ensuring the dignity of migrants and upholding their legal right to seek asylum,” his website reads. Trump and Steven Miller worked to find creative, punishing ways to discourage people from seeking asylum in the United States, and they have used COVID-19 as a pretext to bring asylum almost to a dead stop. Since many of the changes to asylum policy came through executive actions, they’ll be fairly easily overturned. But, according to Jessica Bolter, an analyst for the Migration Policy Institute, overturning those actions will only partly solve the problems, and going after regulatory changes will be harder when Trump leaves Biden such a long punch list of changes to make. “That’s kind of the genius of what the Trump administration has done here,” she says. “They’ve created a really effective web of major and minor policies that have completely changed the asylum system and made it really hard to sustain advocacy on all of them.”
- Undo Trump’s Actions - That’s Biden’s catch-all in immigration and, really, almost all other policy areas. It’s also easier said than done for the same reason that Bolter spelled out above. Many of the executive actions can be easily undone including the “Remain in Mexico” policy and Trump’s desire to exclude undocumented immigrants from the census, which will come before the Supreme Court next year if Biden doesn’t address them. Still, the Migration Policy Institute counted more than 400 actions taken by the Trump Administration that make immigration harder. “There’s so much change that has happened in the last four years, there’s no way a new administration could reverse things in four or even eight years,” said Sarah Pierce, a policy analyst at the Migration Policy Institute. Bottom line: we’ll spend at least the next four years trying to undo the damage of the Trump Administration during a Biden presidency.
- Comprehensive Immigration Reform - Biden’s immigration policy page points out that he and President Obama supported the effort at comprehensive immigration reform that passed the Senate in 2013, and he pledges to “finish the work of building a fair and humane immigration system,” which sounds like a promise to continue that 2013 effort. Comprehensive immigration reform is badly needed, but in our current climate of partisan divide, it’s hard to imagine Senate Republicans giving Biden the votes for effort. For something to happen there, Biden will likely need to deal first with the filibuster and, probably, health care and jobs since 2020 has been hard on both. Will he have the time and energy for such a heavy lift? We can hope.
We’re encouraged to see information play a part in Biden’s thinking about immigration. For the last four years, misinformed beliefs and prejudices have shaped immigration policy, and particularly the belief that immigrants are drains on a community. On his website, the Biden plan acknowledges, “Research suggests that ‘the total annual contribution of foreign-born workers is roughly $2 trillion.’ Key sectors of the U.S. economy, from agriculture to technology, rely on immigration. Working-age immigrants keep our economy growing, our communities thriving, and country moving forward.”
On the other hand, given four more years, Trump can set many of his changes in concrete and alter the nature of immigration in America for decades to come. If these are issues that matter to you, vote.
