Biden Sets the Stage for a Remarkably Active First 100 Days on Immigration

On his first day in office, President Joe Biden set in motion what could represent the most active first 100 days on immigration by any White House in recent history, including that of predecessor Donald Trump, whose presidency was singularly focused on reshaping the U.S. immigration system.

Via executive orders and the unveiling of a framework for an ambitious legalization of the nation’s estimated 11 million unauthorized immigrants, Biden set a sharp departure from the Trump administration’s tone and policies. By putting immigration on par with other urgent policy announcements made on Inauguration Day, the new president seemed keen to reposition immigration as an asset rather than a threat to national and economic security, as was the relentless narrative during Trump’s presidency.

Among the 17 executive actions Biden signed his first afternoon in office were the rescission of the Trump travel ban on nationals from a number of predominantly Muslim countries, a pause on wall construction at the southern border, measures to preserve and expand the Deferred Action for Childhood Arrivals (DACA) program, and a rollback of expansive deportation rules. His administration also announced a 100-day moratorium on virtually all deportations from the U.S. interior, though it has since been paused by a federal judge’s order.

The same day, the new administration revealed the outlines for a forthcoming sweeping immigration reform bill that, if passed, would be the largest legislative overhaul of immigration in a generation. The proposal would offer an eight-year path to citizenship for virtually all unauthorized immigrants. Speedier access to citizenship would exist for a subset of that population, including the estimated 3 million so-called DREAMers, more than 300,000 people with Temporary Protected Status (TPS), and hundreds of thousands of farmworkers. It includes provisions to address root causes of migration by providing economic aid and other technical assistance to countries that are major sources of recent flows to the United States, especially in Central America, while providing platforms to cooperatively respond to pressures for migration. In a departure from past similar legislative measures, the Biden proposal does not include any additional enforcement measures, instead seeking to enhance existing border technology and secure ports of entry.

The White House made clear the day-one actions were just a down payment on more activity, with Biden expected to sign a second set of immigration-themed executive orders on January 29. News reports suggest these will increase the number of refugees admitted, seek to reunite separated families, and rescind a public-charge rule that has scared immigrants and their U.S.-born relatives from applying for public benefits to which they are entitled.

The fast out of the gate actions on immigration stand in contrast to the campaign, when immigration played less of a role than might have been anticipated given its omnipresence in Trump’s 2016 platform and the nature of Trump administration policies seen largely as punitive towards immigrants. But immigration reform was a sharp focus for immigrant advocates and Biden’s Democratic Party base during the campaign and transition, ultimately forming a central pillar of the new president’s day-one agenda.

Biden’s initial policy reforms represent more than an effort to unwind some of the Trump administration’s policies. They also advance a vision of immigration reform that has been elusive for at least two decades: legalization with a pathway to citizenship for large numbers of unauthorized immigrants and revitalizing the legal immigration system. At the same time, the Biden agenda on immigration is notable for its lack of new enforcement measures, which for years had been an integral component of negotiations on comprehensive immigration reform. This omission reflects the increasing partisan schism on the issue, and the Democratic Party’s growing antipathy for the costs of immigration enforcement ever since record numbers and arrests and removals took place early in the Obama administration. 

Tempered Expectations

As ambitious as the administration’s agenda is, it faces an uphill challenge on a number of fronts. The most potent impediment is the enormity of the COVID-19 public-health and economic crises. Biden has referred to the effort as a “wartime undertaking” and it will require significant political capital and resources, leaving little bandwidth for other policy goals, at least in the short term. In that regard, the present era could echo the administrations of George W. Bush and Barack Obama, whose grand ambitions for immigration reform were ultimately subsumed by the 9/11 terrorist attacks and the Great Recession of 2008, among other events. Unless there is significant progress confronting the pandemic and its economic impact, advancing broad immigration reform will be particularly difficult.

In the near future, the administration also faces the prospect of a surge of migrants arriving at the southern border, posing both a substantive and politically problematic challenge. Large numbers of U.S.-bound Central American migrants attempted to make their way through Honduras and Guatemala in recent weeks before being largely dispersed. Other caravans are expected. If the pressure continues, the administration will likely attempt to walk a policy tightrope that seeks to undo a range of Trump policies shutting off humanitarian protections while also tempering a possible surge at the border, especially during the pandemic.

Recognizing these competing demands, the Biden administration has walked back the campaign promise to quickly end all of Trump’s asylum policies, which have effectively shut down asylum at the southern border. Instead, according to Susan Rice, the White House Domestic Policy Council director, the administration will reopen the border to asylum seekers only "consistent with the capacity to do so safely and to protect public health.” As a result, a controversial federal Centers for Disease Control and Prevention (CDC) order used by the Trump administration to expel nearly all arrivals, including humanitarian ones, at the border is likely to remain in place for some period.

“Processing capacity at the border is not like a light that you can just switch on and off,” Rice told the EFE news agency in December. Biden himself similarly warned in a press conference, "It's a matter of setting up the guardrails so we can move in the direction," so the country does not "end up with two million people on our border."

This tension has resulted in the Biden administration having ceased new enrollments but not yet addressing the status of more than 70,000 migrants currently or previously enrolled in the Migrant Protection Protocols (MPP) despite the campaign promise to end it on day one. The program, also known as the “Remain in Mexico” policy, was instituted by the Trump administration and requires asylum seekers and other migrants to wait in Mexico for the duration of their U.S. asylum adjudications.

These complicating factors were evident even before the election, but others have emerged in the weeks since. Revelations about a sweeping cybersecurity breach linked to Russia and the January 6 domestic terror attack on the Capitol building have significant implications for the demands on and focus of the new administration, especially the Department of Homeland Security (DHS), which is the lead agency on immigration and domestic security, including cybersecurity. Homeland Security Secretary nominee Alejandro Mayorkas, who has a lengthy record working on immigration policy, now will have to address other competing priorities.

Unwinding Trump

As a candidate, Biden had indicated he would undo most of Trump’s more than 450 executive actions on immigration, but that task is easier said than done. To achieve its aims, the Trump administration layered many of its immigration policies using multiple bureaucratic tools such as legal opinions, regulations, and policy memos, complicating the Biden administration’s ability to dismantle them.

Even in its final weeks, the Trump administration issued multiple last-minute executive actions that appear intended to hamper the Biden administration’s ability to unwind the policies. Among these were moves to rescind COVID-19 travel restrictions, designate Cuba as a state sponsor of terrorism, finalize regulations on H-1B visas and asylum, and sign contracts with several states and local jurisdictions that would require the new administration to provide notice six months ahead of any immigration policy changes. While some executive actions can easily be undone or ignored, regulations need to go through formal rulemaking processes and may be harder to unwind. The Biden team will have to decide which Trump policies to prioritize for reversal.

Among those that the administration is expected to rescind quickly include the public-charge rule. First announced in October 2018, the rule makes it harder for families with limited incomes to seek residency in the United States by expanding the circumstances under which individuals can be denied admission or green cards if they are deemed likely to become a public charge. Revoking the rule will likely take time to go through the formal rulemaking process. In the meantime, the Biden administration may decide simply not to enforce it.

To preserve and fortify DACA, which Trump unsuccessfully attempted to rescind, the Biden administration will abandon its predecessor’s court battles. It may also issue a revised justification for the program’s continued renewal, tailored to meet potential challenges in existing or future litigation.

The administration is likely to also work to support efforts to reunite families separated during the Trump era, empaneling a task force across various administrative and law enforcement agencies.

Finally, Biden has pledged to raise the cap on the number of refugees allowed into the United States, which Trump set at a record-low 15,000 in fiscal year 2021. The Biden campaign pledged to admit 125,000 refugees per year—slightly higher than the level at the end of the Obama administration—and raise it over time.

Possibilities of Congressional Action

Biden entered office with Democrats poised to hold extremely thin majorities in the House and Senate. Democrats control the 50-50 Senate by virtue of Vice President Kamala Harris, who is president of the Senate, being able to break the tie. With Democrats claiming both GOP Senate seats in Georgia's January 5 runoff election, the altered legislative landscape has opened the door for at least some Biden priorities. That could include his sweeping legalization proposal, reform of an outdated legal immigration system, and regional solutions designed to address the forces driving Central American migration.

But translating legislative wishes into reality remains difficult. Just as with the executive branch, Congress has other priorities. Equally important, Senate Democrats’ lack of a filibuster-proof majority will, barring a major rules change, require them to attract at least ten Republicans to pass any major immigration reform, assuming all Democrats are on board. The hurdles will be high; Sens. Lindsey Graham (SC) and Marco Rubio (FL), the only remaining Republicans from the “Gang of Eight” that spearheaded an unsuccessful immigration reform effort in 2013, quickly expressed their opposition to Biden’s initial proposal.

Senate Majority Whip Dick Durbin (D-IL) has recognized the political realities. “I’m not ruling out a larger bill, but I want to take it a step at a time,” he told Politico. “I don’t want to overplay my hand. I want to be mindful that bipartisan support is essential to victory in the Senate.” Even in the House, Democrats’ slim majority makes Republican support important for major legislation.

Better Hope for Limited-Reach Legislation?

While a large-scale immigration bill may struggle to garner support, some more modest measures could advance. One obvious opportunity is a measure that can be linked to stimulus or COVID-19 relief, which are a high priority for the Biden team. In this regard, Rep. Joaquin Castro (D-TX) has said he will introduce legislation giving unauthorized immigrants deemed essential workers a pathway to citizenship. Such a measure could possibly be included as part of a stimulus recovery bill.

Indeed, the stimulus legislation Congress passed in December shows there may be some bipartisan appetite for a limited measure such as this. The $900 billion pandemic-recovery package reversed the earlier CARES Act’s denial of stimulus payments to U.S. citizens and legal immigrants in mixed-status families. The Migration Policy Institute (MPI) has estimated that the CARES Act excluded 5.1 million U.S. citizens and legal immigrants from the stimulus payments because they were children or spouses of unauthorized immigrants, and that the most recent relief bill made nearly 3 million of those eligible.

Recovery or stimulus bills also may not require filibuster-proof approval in the Senate. They could be introduced through the reconciliation process, which expedites certain budgetary legislation and has been used in recent years for major legislative changes including health care and tax reform. Reconciliation bills require only a simple majority of votes in the Senate for passage and could theoretically be used to advance limited changes on immigration, including legalization for at least some subsets of the unauthorized population.

Congressional Review Act

Democratic control of the Senate also opens the possibility for use of the Congressional Review Act (CRA). Regulations finalized under the Trump administration since August 21, 2020—60 legislative days before the end of the previous session—could be reversed quickly by Congress, rather than having the new administration do so through the cumbersome regulatory process. Since reversing regulations through the CRA requires just a simple majority in the Senate, the changes could occur without bipartisan support.

Possibly ripe for reversal under the CRA:

• Several regulations on asylum, such as expanding criminal bars, restricting asylum based on domestic or gang violence, and streamlining proceedings for arriving asylum seekers
• Regulations restricting the H-1B visa program
• Ending administrative closure and limiting the ability of immigration judges to manage their dockets.

Biden’s Balancing Act

The Biden administration is attempting to balance a number of considerations as it embarks on its immigration agenda. It is sending a strong message that Trump’s immigration policies were not only politically divisive but also harmful to the national interest, and therefore must be reversed. But it is also signaling that it wants to go beyond simply undoing Trump’s actions and reverting to the system in place at the end of the Obama administration. Rather, it wants to retool the U.S. immigration system to amend flaws that have been recognized but largely unaddressed for more than two decades.

The framework the White House has advanced may seem aspirational, but it offers a clear vision. It challenges lawmakers and advocates to test the political waters. It also may be tempering the appetite for massive changes through executive action, recognizing their transitory nature and vulnerability to being overturned by a successor government. By instead asking Congress to act, the Biden White House is shifting the responsibility for the most foundational policy changes to the legislature. This, too, represents a significant break with the Trump administration, which relied on executive action to make hundreds of immigration reforms.

Congress, however, has become an increasingly divided institution, and the need for bipartisan support suggests the administration may have to temper its ambitious goals. The Biden administration’s hopes for its agenda may be high, but so too are the hurdles that await it.

The authors thank Christopher Levesque for his research assistance.

Sources

Barrón-López, Laura and Sabrina Rodriguez. 2021. Democrats Ready Immigration Push for Biden’s Early Days. Politico, January 15, 2021. Available online.

Biden, Joe. 2020. Speech before Holidays. Rev transcript, December 22, 2020. Available online.

Biden for President. N.d. The Biden Plan for Securing Our Values as a Nation of Immigrants. Accessed January 22, 2021. Available online.

Castro, Joaquin. 2021. Twitter post. January 15, 2021. Available online.

EFE News Agency. 2020. EFE Interview with Ambassador Susan E. Rice and Jake Sullivan, English Language Version. EFE News Agency, December 21, 2020. Available online.

Gelatt, Julia, Randy Capps, and Michael Fix. 2021. Nearly 3 Million U.S. Citizens and Legal Immigrants Initially Excluded under the CARES Act Are Covered under the December 2020 COVID-19 Stimulus. Commentary, Migration Policy Institute, January 2021. Available online.

Transactional Records Access Clearinghouse (TRAC). N.d. Details on MPP (Remain in Mexico) Deportation Proceedings by Hearing Location and Attendance, Representation, Nationality, Month and Year of NTA, Outcome, and Current Status. Accessed January 22, 2021. Available online.