By Jacob Hamburger

#7 in a series of policy briefs laying out clear steps to re-think and re-orient US foreign policy.

Key takeaway: It is ultimately up to Congress to reform the underlying structure of the immigration statutes. But if the Biden Administration acts decisively to expand humanitarian protection and dismantle the carceral immigration system, it will lay the groundwork for lasting reform.

Over the past four years, Trump has enacted hundreds of policies aimed at preventing migrants from entering the United States, and punishing non-citizens already present. His administration has used fear-mongering over “caravans” of asylum seekers, as well as the Covid-19 pandemic, to effectively halt US refugee and asylum systems, while also stranding tens of thousands of migrants in dangerous situations in Mexican border cities. In the meantime, it has sought to make securing legal status as difficult as possible for many other groups of would-be immigrants. 

Finally, Trump has encouraged a culture of impunity and bigotry within federal law enforcement agencies including Immigration and Customs Enforcement (ICE) and the Border Patrol, who increasingly view their mission as waging war against all undocumented immigrants. 

The incoming Biden Administration has promised to roll back Trump’s immigration actions, restore Obama-era programs such as DACA, and impose a temporary moratorium on deportations. Biden’s announcements are a welcome signal that he understands the mandate he has been given on the immigration issue by a public that largely supports more liberal policies. 

However, the Biden Administration cannot settle for a superficial return to the status quo ante of pre-Trump immigration policy, nor can it hide behind the banner of “bipartisanship”  as an excuse for inaction. The incoming president will have substantial powers at his disposal to end the humanitarian crisis at the border, abolish the current carceral model, and bring US policy in line with the demands of global justice.

The Way Forward

Ending the Humanitarian Crisis

Since the Covid-19 pandemic began, the US has barred virtually all asylum seekers from entering the country for protection. Meanwhile, the inaptly named “Migrant Protection Protocols” (MPP) have stranded tens of thousands in cities across the border, awaiting court dates in precarious circumstances. Many more have abandoned their asylum claims in desperation, while the US has also cut refugee admissions from overseas to a pittance—setting the 2020 cap at 18,000, while in Obama’s final year it was 110,000.

Joe Biden has promised to end MPP and restore refugee admissions to Obama-era levels. But given the historic crisis facing the tens of thousands of asylum seekers currently in Mexico, simply ending the programs that have caused this crisis will not be enough. The new administration must commit resources to providing each asylum seeker a fair chance to secure protection. 

Foremost, it should enable asylum officers to make final grants of asylum, rather than reserving this for backlogged immigration courts which Trump has stacked with right-wing judges. There must be an efficient and fair process to avoid scenes of “chaos at the border” which will feed right-wing xenophobia and weaken the administration’s resolve to protect vulnerable migrants.

The new administration should also enact policies that afford humanitarian protection to those that fall outside the current criteria for asylum—most importantly Central Americans fleeing gang and gender-based violence as well as extreme deprivation caused by climate change. This will require the executive branch to make bold use of its power to interpret the asylum and other immigration statutes, “parole” migrants into the country, and declare those from affected countries eligible for Temporary Protected Status. 

Abolishing the Carceral Immigration System

Even the most generous expansion of humanitarian protection will not reach the vast majority of the 10-12 million who are currently undocumented. If Congress will not grant full regularization, the Biden Administration can take bold measures on their behalf, such as by using agency action to ensure that many federal benefits are made available to them. But perhaps the most long-lasting change the next administration can make will be to remove the threat of arrest, detention, and deportation which hangs over the head of every undocumented person in the United States.

Biden’s team must learn from prosecutors who have used discretionary policies to reduce mass incarceration in cities like Philadelphia and San Francisco. Restoring the Obama Administration’s policy restricting ICE to targeting immigrants with criminal records will not be sufficient. If ICE cannot be abolished outright, its ability to make arrests must be far more narrowly restrained, and the agency should not be in charge of the decision to place immigrants in deportation proceedings. 

The Biden Administration must be willing to place significant limits on who can be deported—for example, based on length of residence and family ties to the US—and to confront the federal judiciary in order to defend these policies. The Department of Justice must also immediately cease prosecuting immigrants criminally for illegal entry or reentry. Procedural reforms that aim to reduce the adversarial nature of immigration proceedings would also allow more immigrants to obtain legal status, as would funding immigration public defenders for all those facing deportation.

The administration should also not seek to rebuild working relationships between ICE and state and local police forces. So-called sanctuary policies, which bar collaboration with federal immigration enforcement, have been effective in preventing further deportations under Trump, and should become the norm nationwide. Nor should it seek further spending on “border security” technologies and policing strategies that do little other than push migrants into more dangerous areas along the border.

Finally, Biden must abolish immigrant detention altogether. This will involve ending not just private detention contracts, but also the practice of using local jails as immigrant detention facilities. The government also has, and must use, discretion not to seek detention for most immigrants placed in deportation proceedings.

Above all, a progressive immigration policy must make absolutely clear that the immigration system should not be used as a substitute for—or worse, a supplement to—a criminal justice system, which itself does far more to punish and harm than to protect public safety.

Looking to the Future

The reforms described here have focused largely on what can be accomplished through executive action. In the long run, it is up to Congress to reform the underlying structure of the immigration statutes: for example, eliminating draconian consequences for immigrants with criminal records, creating new pathways to permanent status, and expanding the number of available family, employment, and diversity visas. But if the Biden Administration acts decisively to enact a progressive immigration agenda, this will make lasting reform much easier to accomplish in the future.

Long before Donald Trump entered politics, the US immigration system has operated as a mechanism for excluding poor migrants and racial “others,” and punishing them should they find themselves in the country without authorization. The most effective repudiation of Trump’s agenda will be to work to dismantle the structures that have enabled it.

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Jacob Hamburger is a writer and an editor of Tocqueville 21, a Franco-American blog about contemporary democracy. He is also completing a JD at the University of Chicago Law School, and plans to practice immigration law and removal defense.