Former vice president Joe Biden says hes ashamed of Trumps immigration policy that led to a national scandal over the separation of migrant children and parents at the border.
Family separations. The travel ban. The wall. Gutting the asylum and refugee systems. Pushing to abolish DACA.
Those policies implemented by President Donald Trump helped define his legacy, fulfilling some of his campaign promises while enraging many Americans and further isolating the U.S. from the world. President-elect Joe Biden has vowed to reverse most of those restrictionist policies, but it could take months, or even many years, to do so.
In all, the Trump administration enacted more than 400 policy changes that have shrunk legal and illegal immigration channels into the United States. The process of overturning many of them will be straightforward Biden can sign executive orders and his agency heads can issue memos or directives overriding Trump policies. Some changes, however, could take much longer to unwinddue to long bureaucratic processes or legal challenges in court from states or groups that oppose the policy shifts.
Untangling the moves will be even more difficult given that so many of them overlap, forcing the Biden administration to carefully peel them back one by one without overwhelming the immigration system or encouraging a new wave of migrants. That conundrum can be seen most clearly along the southern border.
One Trump policy requires migrants to request asylum in Guatemala or Mexico before they reach the United States. Another Trump policy limits the number of people who can legally request asylum each day at U.S. ports of entry. And yet another Trump policy requires asylum seekers to remain in Mexico while their immigration case is decided.
The end result has been about 25,000 migrants currently living in dangerous, makeshift camps in Mexican border towns. If the Biden team rescinds all those Trump orders, it will have to develop a new plan to handle those asylum seekers.
"Detangling everything Trump did at the southern border may be Bidens biggest headache on immigration,"said Sarah Pierce, policy analyst at the Migration Policy Institute, a Washington, D.C.-based, non-partisan organization that researches immigration policy.
President Donald Trump and former Vice President Joe Biden debate in September at Case Western University in Cleveland.(Photo: Patrick Semansky, AP Images)
The Biden team will also face intense pressure from immigration advocacy groups to grant entry to the tens of thousands of people who have been blocked from entering the U.S. by dozens of other changes made by Trump. His administration has blocked legal residents, relatives of U.S. citizens, refugees, asylum seekers, foreign workers and others for a variety of reasons, including national security and public health throughout the COVID-19 pandemic.
"You can come in on day one and...issue memos that will reset the world,"said Karen Tumlin, founder and director of the Justice Action Center, a group that represents immigrants in court. "But can you unring the bell? Can you undo the damage?"
Biden will face a polarized nation when hes sworn in, meaning hell likely face intense pushback in his attempts to reverse Trumps immigration policies. And if Republicans maintain control of the Senate which wont be decided until two runoff elections in Georgia in January hell likely be forced to act alone through executive actions.
"Some of (Trumps policies) will remain in effect because the Biden administration will realize they are useful policies, or because they will not be able to undo them quickly because of wanting to avoid a political disaster of an influx at the border or because they receive so much push back in the form of litigation and just the fact that there is a certain amount of inertia with any government regulation,"said Jessica Vaughan, policy studies director at the Center for Immigration Studies, a think tank that favored many of the policy changes implemented by the Trump administration.
Heres a look at some of the key immigration policy changes Biden could attempt in his first 100 days in office, and the documents he will have to strike down in the process:
The policy:Sept. 24, 2017, executive order signed by Trump to implement a travel ban, his third attempt to enact the ban.
Demonstrators hold signs and chant in the baggage claim area during a protest against President Donald Trump's executive order banning travel to the United States by citizens of several countries Sunday, Jan. 29, 2017, at Detroit Metropolitan Airport.(Photo: Jeffrey M. Smith, AP)
After vowing on the campaign trail to implement a "total and complete shutdown of Muslims from entering the United States,"the president signed an executive order that did just that, temporarily barring people from seven majority-Muslim countries and completely halting the refugee program.
The first version was shot down by several federal judges. Trump then signed a second travel ban that was also eventually blocked by federal judges, including the U.S. Courts of Appeals for the 4th Circuit, which concluded that the order was "steeped in animus and directed at a single religious group."
The Supreme Court was in the middle of considering multiple challenges to the ban when Trump signed a third version of the travel ban in September2017 that barred people from eight countries, including North Korea and Venezuela. That version was initially blocked by federal judges but ultimately upheld by the Supreme Court and remains in force today.
The Trump administration maintained that the ban was needed to overhaul the process used to vet foreigners to ensure that the country isnt allowing terrorists to sneak into the country through existing legal channels. But critics have continued fighting it through legal challenges and public pleas decrying what they still refer to as the "Muslim ban."
Marielena Hincapi, who has fought against the travel ban in court as executive director of National Immigration Law Center, said rescinding the travel ban is not a first 100 days goal for a Biden administration but a day one move.
"It really is about restoring who we are as a nation and making sure that we once again see immigrants as a strength to the nation,"said Hincapi, who co-chaired the immigration section of a Unity Task Force created this summer by allies of Biden and his former Democratic challenger Sen. Bernie Sanders, D-Vt., to develop ideas and policies for a potential Biden administration.
How Biden could change it:
Biden can issue a new executive rescinding the ban and order the Department of Justice to stop defending the Trump ban in federal court.
The policy:Jan. 25, 2017, executive order Trump signed calling for the federal government to "plan, design, and construct a physical wall along the southern border."
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Building a wall along the U.S.-Mexico border and making Mexico pay for it was Trumps number one campaign promise.
Trump signed an executive order five days after taking office calling for the planning, designing and construction of a border wall. But Mexicos president repeatedly said Mexico would never pay for the wall. And Congress refused to fund the $13.2 billion the Trump administration requested to pay for border wall construction.
As of July, the Trump administration had secured $15 billion for border construction, according to the Migration Policy Institute. But only about $4.4 billion came from funding enacted by Congress, according to a Congressional Research Service report. The remaining 60% came from funds the Trump administration diverted from Pentagon accounts for military projects to construct new and replacement fencing along the southern border. In February 2019, Trump declared a national emergency over the border crisis to secure money from military projects to fund border barrier construction.
There were 653 miles of border barriers in place when Trump took office in 2017, which covered roughly a third of the length of the southern border. Of the 653 existing miles of barriers, about 350 miles was fencing designed to block pedestrians and about 300 miles was barriers designed to block vehicles.
Since then, the Trump administration has completed about 400 miles of new and replacement fencing as of the end of October, with plans to complete a total of 450 miles by the end of 2020. Most of the new fencing is 18- to 30-foot high "bollard"fencing long steel slats filled with cement.
How Biden could change it:
Biden told NPR that although he would not tear down any of the border barriers already built "there will not be another foot of wall constructed on my administration."But some border construction projects may still get built after Biden takes office because contracts may have already been signed. Biden will likely direct the head of U.S. Customs and Border Protection, the agency overseeing the border fencing project, to conduct an analysis to decide which projects are worth completing, scaling back or terminating from a financial and border security stand-point.
"President Trump may have boxed in Biden, which could require that Biden has to complete certain portions of the wall whether he likes it or not,"said Scott Amey, general counsel for the nonprofit group Project on Government Oversight.
The policy:Oct. 28, 2020, presidential determination signed by Trump capping refugee admissions at 15,000 for fiscal year 2021.
A Kansas town, known for welcoming immigrants, fights anti-refugee politics and anti-Muslim sentiment. USA TODAY
One of Trumps first acts as president was to suspend the entire refugee program, and indefinitely block all Syrians from entering the United States, in the name of national security. The program was restarted in October2017 but halted again in March in the name of public health as the COVID-19 pandemic spread.
All along, the president has warned about the dangers of refugees, who he views as national security threats and drains on the U.S. economy. "It's a disgrace what they've done to your state,"Trump said during a campaign stop in Minnesota in October, referring to refugees living there.
Presidents have the power to set the number of refugees the U.S. will accept each year, and Trump has established record lows every year hes been in office. The refugee cap has fallen from 110,000 in President Barack Obamas final year in office to 50,000 during Trumps first year in office, falling all the way to a 15,000 refugee cap announced by Trump in October, the lowest since the program was created in 1980.
The continuous reductions in refugee admissions have also led to layoffs and office closures at the nine humanitarian organizations that help relocate and assimilate refugees. Even if Biden raises the cap on refugees, it would take time for those organizations to rehire the staff needed to help refugees transition to the United States.
How Biden could change it:
Presidents usually set the refugee cap in the fall, just before the start of the new fiscal year. But Jacinta Ma, vice president of policy and advocacy for the National Immigration Forum, a Washington, D.C.-based group that advocates for immigrants, said Biden could immediately raise the refugee cap through an executive order. Trump set that precedent in March 2017 when he signed an executive order lowering the refugee cap to 50,000.
The policy:Sept. 5, 2017, memo signed by then-Homeland Security Secretary Elaine Duke terminating the Deferred Action for Childhood Arrivals (DACA) program.
Demonstrators who marched from New York City to Washington, D.C., arrive in front of the U.S. Supreme Court on Nov. 10, 2019, to support the Deferred Action for Childhood Arrivals (DACA) program and Temporary Protected Status (TPS).(Photo: JOSE LUIS MAGANA, AFP via Getty Images)
After expressing support for undocumented immigrants illegally brought to the country as children during his 2016 presidential campaign, Trump announced in September2017 that he was ending the Obama-era DACAprogram. Nearly 650,000 undocumented immigrants participated in the program, which protected them from deportation and allowed them to legally work in the U.S.
The Trump administration said it would end the program and gave Congress six months to pass a law to permanently protect the so-called Dreamers. The ensuing congressional battle resulted in a political slugfest that culminated in a temporary government shutdown, but no deal was struck.
The Dreamers were saved at the last minute by a federal judge, who ruled that the Trump administration used a flawed process to terminate DACA. That legal battle reached the U.S. Supreme Court in June, where Chief Justice John Roberts sided with the liberal wing of the Court in a 5-4 decision that allowed the program to endure. The court also ordered the administration to start accepting applications again.
That decision led to widespread relief for Dreamers who depend on the program to work, go to school and live without the constant fear of being detained and deported. Soon after the ruling, Trump threatened to try and end the program once again.
How Biden could change it:
Preserving the program would be simple: Bidens Department of Homeland Security could issue a new memorandum rescinding the 2017 memo that attempted to terminate the program. But Biden will also be urged by some Democratic lawmakers and pro-immigration activists to grant protections for Dreamers who were denied the ability to apply for the program during the two-year legal fight under Trump. He will be urged to expand the number of people eligible for DACA and to push Congress to pass a law to put DACA recipients on a path to citizenship.
The policy:June 11, 2018, decision signed by then-Attorney General Jeff Sessions limiting who can apply for asylum in the U.S.
An asylum-seeking boy from Central America runs down a hallway after arriving from an immigration detention center to a shelter in San Diego on Dec. 11, 2018.(Photo: Gregory Bull, AP)
The Trump administration has tried a variety of tactics to limit or halt asylum requests along the southern border, with federal judges striking down several of them. But they have been forging ahead on their goal of redefining, and limiting, who can apply for asylum in the United States.
Asylum is granted to people who fear persecution in their home countries based on their race, religion, nationality, membership in a particular social group or their political opinion. For years, that has included victims of domestic abuse and gang violence. But the Trump administration is trying to cut those groups out, which would be a particular blow to women and people in the LGBTQ community.
In 2018, then-Attorney General Jeff Sessions intervened in the asylum case of a Salvadoran woman who had been repeatedly abused by her husband and could not seek help from the Salvadoran government. Sessions issued a 31-page order that claimed only victims of systemic repression by a foreign government, not "private"crimes committed by relatives or gang members, qualify a person for asylum.
"The asylum statute is not a general hardship statute,"he wrote.
Immigration attorneys challenged that memo in court and federal courts have responded with conflicting rulings, some bashing the Sessions directive and others upholding it. Blaine Bookey, the legal director for the Center for Gender and Refugee Studies who has represented the Salvadoran woman in court, said the memohas rendered asylum rulings in the U.S. a matter of chance.
"It still depends on the judge that you draw,"she said.
The Trump administration is trying to lock in Sessions'directive through a new regulation, which has been moving through the rule-making process and could become a finalized federal rule in the coming weeks. Bookey describes the Sessions ruling, and the proposed rule, as "part of the administrations larger web of cruel and unlawful policies that have resulted in denial of protections and a return to dangerous conditions and even death."
How Biden could change it:
Bidens attorney general could quickly rescind the Sessions memo, reverting U.S. asylum policy to how it stood before Trump took office. But if the regulation implementing that policy becomes final before Biden takes office, it would take months to propose a new rule and get it finalized because U.S. law requires new rules to go through a prolonged process of public comments, reviews and final publication.
The policy:Customs and Border Protection policy that restricts the number of people who can request asylum each day at U.S. ports of entry.
Asylum seekers in Tijuana, Mexico, listen to names being called from a waiting list to claim asylum at a border crossing in San Diego on Sept. 26, 2019.(Photo: Elliot Spagat, AP)
U.S. Customs and Border Protection officials began limiting the number of undocumented immigrants requesting asylum at ports of entry in Southern California in 2016 under the Obama administration, said David Bier, immigration policy analyst at the Cato Institute, a Washington, D.C.-based libertarian think tank.
The Trump administration continued the so-called "metering"policy in 2017 and then expanded it to ports along the entire southern border in 2018 after groups of mostly Central American migrants began traveling through Mexico in caravans and arriving at ports of entry. Under the metering policy, only limited numbers of migrants requesting asylum are allowed into the United States daily at each port to be processed. The number of asylum seekers allowed in each day is based on available space at U.S. holding facilities. The number varies daily from port to port, but generally fewer than 50 asylum seekers have been processed daily at each port and often less.
Those not allowed in are placed on informal waitlists and "turned back"to wait in Mexico. At times, the number of asylum-seekers waiting at ports has ballooned into the thousands. Some asylum seekers have reported waiting weeks and sometimes months.
The policy is intended to address an unprecedented rise in the number of migrants and migrant families arriving at the border seeking asylum. Its also intended to address health and safety concerns resulting from overcrowding at ports of entry and CBP holding stations.
A class-action lawsuit filed in 2017 challenging the metering policy accused the Trump administration of trying to deter people from exercising their right to seek asylum under U.S. law. Critics also say metering pushes asylum seekers to cross the border illegally between official ports of entry, putting them in danger.
Under U.S. immigration law, people who arrive without legal authorization may seek asylum protections in the United States if they demonstrate a credible fear of persecution or torture if returned to their home country.
How Biden could change it:
Biden suggested during a Oct. 23 presidential debate with Trump that he would end the metering policy and return to allowing asylum seekers who arrive at the border to "make your case"based on the following premise, "why I deserve it under American law,"instead of sitting in squalor on the other side of the river.
To amend or end the policy, Biden would direct his U.S. Customs and Border Protection commissioner to issue a memo to CBP directors at ports of entry.
The policy:Jan. 25, 2019, memo signed by then-Department of Homeland Security Secretary Kirstjen Nielsen ordering asylum applicants to return to Mexico while their case is decided.
A woman reads a newspaper inside her tent as migrants camp out on the street outside an overflowing sports complex on Nov. 28, 2018, where more than 5,000 Central American migrants are sheltering in Tijuana, Mexico.(Photo: REBECCA BLACKWELL, AP)
In late 2018, the number of Central American migrants reaching the southern border of the U.S. skyrocketed due to raging violence, food insecurity and misconceptions fueled by smuggling organizations that the United States was allowing in parents who arrived at the border with children. Many were requesting asylum, a claim that Trump administration officials repeatedly questioned.
To help stem that flow, administration officials tried to broker a deal with Mexico to house asylum seekers. When those talks faltered, then-Homeland Security Secretary Kirstjen Nielsen forged ahead on her own, signing the MigrantProtection Protocols, better known as the Remain in Mexico plan, which forces asylum seekers to return to Mexico while their asylum case proceeds in U.S. immigration court.
The result was chaotic: migrants began creating makeshift camps in Mexican border towns, straining local resources and fostering unsafe living conditions for more than 60,000 migrants at its highest point. With no protection and no formal government response from Mexico, migrants complained of robberies, kidnappings, and unsanitary living conditions.
Nielsen and other Trump officials defended the plan, saying it was necessary to slow the flood of asylum seekers trying to enter the country. And they claimed it was needed because migrants who are released into the United States while their asylum cases proceed rarely appear at their court appearances.
But immigration advocates and immigration court data refute those claims. More than 80% of migrants who requested asylum from September 2018 to May 2019 attended all of their court hearings, according to a report from the Transactional Records Access Clearinghouse (TRAC), a research group at Syracuse University in New York. In the immigration plan that Biden pushed during his presidential campaign, Biden claimed he would end the Remain in Mexico plan within his first 100 days to "restore our asylum laws so that they do what they should be designed to do - protect people fleeing persecution."
How Biden could change it:
The process to rescind the policy is simple a Homeland Security official could simply issue a new memorandum rescinding Nielsens 2019 memo. But with tens of thousands of migrants waiting in Mexico because of the policy, the administration would need to develop a new system to allow them into the country and process their asylum requests.
The policy:March 20, 2020, order signed by Centers for Disease Control and Prevention Director Robert Redfield suspending entry of people from countries where a communicable disease exists.
Dulce Garcia, right, carries a cup of coffee as she crosses the border from Mexicali, Mexico, to Calexico, Calif., on July 22, 2020. Like many in Mexicali, Garcia lives in Mexico but works in Calexico. "Everybody's scared of the pandemic but we have to cross," Garcia said. "We have to survive."(Photo: Gregory Bull, AP)
After limiting international travel from sections of China in the early days of the coronavirus pandemic, the Trump administration largely sealed off the northern border with Canada and the southern border with Mexico in March.
To do so, federal immigration agents relied on a law that allows the director of the Centers for Disease Control and Prevention to haltadmission of foreigners if their home country is suffering from a communicable disease.
Through September, Customs and Border Protection agents have forced nearly 200,000 migrants some requesting legal entry to the U.S., some trying to cross the border illegally to return to Mexico by citing Title 42. Those expulsions affect all migrantsadults, unaccompanied minors, family units and can be carried out in just a couple of hours.
During a trip to Arizona, CBP Acting Commissioner Mark Morgan praised the order as a way of slowing the spread of COVID-19 in the U.S. He described the nearly 50,000 migrants caught along the southern border in August, as "50,000 potential carriers of a deadly disease."
Immigration activists have objected to the blanket denial of would-be migrants, accusing the administration of using the COVID-19 pandemic as an excuse to achieve its long-standing goal of cutting off legal and illegal immigration from Mexico, Central America and South America.
How Biden could change it:
The CDC order must be renewed every 30 days, meaning Bidens CDC director could decide to simply let the most recent order sunset or could issue new guidance limiting the use of Title 42.
The policy:Jan. 25, 2017, executive order signed by Trump allowing immigration agents to target all undocumented immigrants for arrest.
Immigration and Customs Enforcement raids occurred in small towns where the workforce is made up largely of Latino immigrants. Wochit
One of Trumps first actions after taking office was to eliminate the "enforcement priorities"established under Obama, which ordered Immigration and Customs Enforcement (ICE) agents to focus on undocumented immigrants with criminal records and to avoid so-called "collateral arrests,"or picking up undocumented immigrants who they happened to come across each day.
Trumps order allowed ICE agents to arrest any undocumented immigrant they encountered, even if the person only had immigration violations on their record. The result was noticeable: in the final months of the Obama presidency, nearly 90% of undocumented immigrants arrested by ICE had a criminal record. That figure fell to 64% by 2019.
The Trump administration also resurrected the practice of large-scale work-site raids, used often by President George W. Bush but largely abandoned under Obama. Under Trump, the largest was a raid of seven poultry plants in central Mississippi in August2019 that led to 680 arrests of undocumented workers, at least two who were still breastfeeding when they were arrested.
Overall ICE arrests increased from 110,000 in 2016 to 143,000 in 2019.
How Biden could change it:
He could sign a new executive order that voids Trump's directives and re-institutes the "enforcement priorities"for agents to target undocumented immigrants with criminal records.
Read more from the original source:
Biden might need years to reverse Trump's immigration policies on DACA, asylum, family separation, ICE raids, private detention and more - USA TODAY