When President-elect Joe Biden comes into office, he will inherit the Trump administration’s restrictionist immigration agenda, which cut access to asylum and has kept migrants in limbo in Mexico while they await humanitarian protection in the US.
Biden has promised swift change, but it won’t be simple.
“They’re realizing that they have two months to figure out a really complicated mess of things,” a source familiar with the transition told CNN, referring to the Biden team. “People are really overwhelmed trying to figure out the sheer issues, the sheer number of pieces you have to coordinate. This is the genius of Stephen Miller.”
Miller, President Donald Trump’s lead immigration adviser and the architect of his hard-line immigration agenda, has shepherded some of the most restrictionist immigration policies – and continues to do so – with the intent of curtailing immigration to the US. The hundreds of executive actions rolled out by the Trump administration have drawn the ire of immigrant advocates and lawmakers, who argue they’ve betrayed the country’s welcoming stance.
The makeup of the Biden-Harris transition team reviewing the Department of Homeland Security appears to signal the incoming administration’s awareness of those actions, with Ur Jaddou, former chief counsel at US Citizenship and Immigration Services, as the team lead, and with the selection of Alejandro Mayorkas as Homeland Security secretary. But undoing policies – as Biden has said he’d do – will be a steep challenge, both logistically and politically.
“They’re coming into the office with a mandate and an intent – in many ways needed and appropriate – to reverse Trump-era immigration policies,” a former Homeland Security official told CNN.
Even changes that are ultimately up to the president could face hurdles, including Biden’s pledge to bring more refugees to the United States. Biden has said he wants to raise the cap to 125,000 – an increase from the historic low of 15,000 put in place by the Trump administration.
But a change in actual arrivals would require policy changes and new refugee interviews, according to a source familiar with the process. The diversion of refugee officers to work on asylum cases the past two years has also left the pipeline largely void of refugees who are advanced in the system, the source said. There are also challenges that arise with Covid-19, including US Citizenship and Immigration Services interview teams being unable to travel.
Other pledges by the Biden administration include repealing regulations that have made seeking asylum in the US exceedingly difficult – a process that could take months. But in the near future, the most urgent challenge for a Biden administration might be how to execute those promises, while acknowledging the potential for a spike in migrants at the US-Mexico border.
The Trump administration implemented two major policies on the US-Mexico border that were unprecedented – the so-called “remain in Mexico” policy, which returned non-Mexican asylum seekers to Mexico until their immigration court date in the United States, and a public health order, related to coronavirus, that allows for the swift removal of migrants arrested at the border.
Biden Transition
Each of those policies has made claiming asylum in the US at the southern border nearly impossible, but the consequence of pulling them back too quickly could result in a sudden increase of migrants on the southern border.
“You don’t want a surge to happen before you’re ready to handle it,” said Andrew Selee, president of the Migration Policy Institute, a nonpartisan think tank. “They’re going to have to rely on one of the policies they hate the most and that they disagree with philosophically, so that they can get to a long term fix.”
The former DHS official echoed that concern: “You have to have a pressure valve in place before you start unwinding down these policies or you’ll allow a crisis to generate.”
Waiting in Mexico
It’s a reality that’s also set in for those waiting in Mexico, often in deplorable conditions.
“The hope is an immediate rollback and parole for all. The reality will probably be something less than the hopes,” said Jodi Goodwin, an immigration attorney who represents migrants in the program.
Both “remain in Mexico” and the public health order are also facing litigation, which could also alter their course. The Supreme Court said in October it would take up the “remain in Mexico” case.
One of the “most important” steps the incoming administration can take is to help Mexico develop a safe and secure system for asylum seekers, said former Customs and Border Protection Commissioner Gil Kerlikowske, who served in the Obama administration.
Kerlikowske told CNN that the announcement to nominate Antony Blinken for secretary of state is perhaps the most important when it comes to this area. “That relationship with Mexico and the three Central American countries is going to be so important as to what happens on our southern border on Mexico,” he said, referring to Guatemala, Honduras and El Salvador.
“I think you’ll see them very much aligned on this,” Kerlikowske said of Blinken and Mayorkas.
Mayorkas, whom Biden tapped to lead the Department of Homeland Security, will lead most of the immigration changes. As a top official in the Obama administration, Mayorkas served as DHS deputy secretary and the director of the US Citizenship and Immigration Services, an immigration agency within the department, where he was integral to the implementation of Deferred Action for Childhood Arrivals.
If confirmed, Mayorkas will take over a department that has been dragged into politics as it implemented Trump’s aggressive agenda to limit immigration, ramp up immigration enforcement and build a wall on the southwest border. The department has also been hampered by a leadership vacuum in the top ranks and has not had a Senate-confirmed secretary since April 2019.
The selection of Mayorkas to serve as head of DHS was immediately met by praise from immigrant advocates who have slammed the immigration changes under the Trump administration and brought a slew of lawsuits against those changes.
Immigration legislation in a Biden administration
Immigrant advocacy groups and nonprofits will likely play an outsized role in the Biden administration after having a front row seat to the ramifications of Trump’s policy making. In a nod to the influence they’ll carry over the next four years, the Biden transition team has already connected with immigrant advocacy groups to hear about the issues top of mind to them, according to a source familiar with the discussions. The source emphasized the need for major changes early, so as not to lose momentum.
“We believe right now – after four years of ceaselessness on the immigrant community and the immigration system – that this is a must-prioritize now as both an economic driver for this nation that is dealing with a crisis. … And a moral driver after the harm that’s been done to immigrants by the Trump administration,” said Alida Garcia, vice president of advocacy at FWD.us.
To that end, immigration legislation will be a priority for a Biden administration. “I’m going to make a commitment in the first 100 days. I will send an immigration bill to the United States Senate with a pathway to citizenship for over 11 million undocumented people in America,” Biden told NBC’s Lester Holt in his first post-election interview last week.
Democratic Rep. Zoe Lofgren of California is likely to play an integral role in immigration legislation. Her staff has been in touch with Biden staff about what needs to be done on immigration, including on the administrative side. “They need to unwind some of the terrible policies of this President and that is not going to be easy,” Lofgren said, adding that those actions might take time.
Legislation is expected to include relief for undocumented immigrants who came to the US as children and have been shielded from deportation through DACA, which has been in a state of limbo under Trump. The legislation would likely also include those protected under humanitarian relief, known as Temporary Protected Status, and essential workers.
“There’s a lot of dialogue about moving beyond the Obama years. One of the things we all experienced during that time was that immigration was pushed for later,” said Garcia of Fwd.us.
“The later you go, the harder everything gets because people prioritize their own reelection.”
CNN’s Lauren Fox contributed to this report.