Biden immigration moves under scrutiny from left and right

President Biden’s moves on immigration have opened him up to criticism from the right and the left, both for the Trump policies he nixed and for those he’s retained.

Biden took quick action early in his presidency by rescinding Trump’s travel ban and freezing construction of the border wall, sparking backlash from Republicans in the process. But he’s also frustrated many progressives by going back and forth on whether to raise the refugee cap and has relied heavily on a Trump-era law that allows for swift deportation of migrants.

Now, Biden is pushing lawmakers on both sides of the aisle to pass reforms.

“Immigrants have done so much for America during this pandemic and throughout our history. The country supports immigration reform. We should act,” Biden said during his speech before a joint session of Congress on Wednesday, adding that he’s willing to increase border security funding if that’s what it takes to secure a deal.

“Let’s argue over it. Let’s debate it. But let’s act,” he added.

But Biden is faced with numerous challenges on the immigration front, both practical and political. His administration is attempting to overhaul a system that the Trump administration used in large part for hard-line enforcement.

“In the first 100 days, he took the lowest-hanging, popular fruit, and that mainly consists of rescinding the … most damaging Trump immigration orders” from the viewpoint of Democrats, said Xiao Wang, CEO of Boundless Immigration, a group of immigrants and experts that helps new immigrants navigate the Byzantine maze of immigration law. 

“He’s rolled back more than he has actually introduced new policies,” he added.

The effects of those changes, however, have yet to filter down to most immigrant communities. 

“The lived experience of a person who is making their way through [the] immigration system right now doesn’t yet feel much different than it did six months ago,” said Heidi Altman, director of policy at the National Immigrant Justice Center.

While Biden has signed a flurry of executive orders seeking to dismantle Trump’s immigration legacy, many of them direct the Department of Homeland Security to study issues in order to determine what should replace them down the line. 

The slow pace of change has created a disconnect between Biden officials, many of whom were immigration advocates before joining the administration, and the advocacy community, which has sometimes reacted with disbelief at Biden’s perceived foot-dragging on immigration.

“The disconnect is an operational one, as boring as that may be. I think the administration aims to [open more legal avenues of immigration], but they are not yet staffed, and those channels are not open yet,” said Marielena Hincapié, executive director of the National Immigration Law Center.

Some of the moves most criticized by immigration advocates are the administration’s slow release of temporary worker visas and an initial attempt to maintain former President Trump’s refugee admissions cap of 15,000. Advocates are also frustrated by a reluctance to grant Haitian nationals temporary protected status and use of a Trump-era policy to expel migrants at the southern border.

Immigrants encountered crossing the border illegally can be immediately expelled to Mexico because of the COVID-19 pandemic under a provision known as Title 42 that the Trump administration applied to all foreign nationals. The Biden administration has exempted unaccompanied minors.

Collectively, the effect of those policies is that the administration has avoided granting hundreds of thousands of foreign nationals the right to live and work in the United States despite being empowered by Congress to do so.

“It’s actually astonishing the Biden administration kept [Title 42] in place and are using it to expel people seeking refuge without even allowing them to pursue their claims,” said Sirine Shebaya, executive director of the National Immigration Project of the National Lawyers Guild.

But even as the administration has been reluctant to use its legal power to grant status to new and existing immigrants, it’s being hammered by immigration restrictionists.

“Essentially he’s taken a wrecking ball to anything that may conceivably work in terms of deterring people,” said Dan Stein, president of the Federation for American Immigration Reform, a group that advocates for reduced immigration.

“By systematically dismantling everything the Trump administration has done so quickly,” said Stein, “[Biden] set off what is obviously a crisis along the border, as anybody can see.”

Critics on both sides of the debate agree that by standing in the middle of the road on immigration, Biden runs the risk of being run over.

“In the end, what essentially is his policy? Is his policy that no one is denied entry and everyone who comes is allowed to stay? If that’s the policy, why doesn’t he just say it?” said Stein.  

Immigration advocates want Biden to make the most use of a unified Democratic government and push back on the GOP’s rhetoric on immigration. 

“I absolutely understand Republicans have a way of framing the narrative in small sound bites that are neither accurate nor reflective of what the reality is,” said Shebaya. 

“I think the Biden administration has the opportunity to reclaim the narrative and to really hammer home their own simple sound bite that immigration is not a threat and a security issue. It’s a humanitarian issue and should be treated as such across the board,” Shebaya added.

Still, Republicans are committed to immigration as a campaign issue, hammering away at Biden with accusations of chaos at the border, mismanagement of resources, and a conflation of immigration and national security threats.

“The lack of urgency is not a trait shared by the other side,” said David Bier, an immigration researcher with the pro-immigration Cato Institute.

“The reality of politics is there’s another election coming up always, and if you’re not willing to take action now, when are you going to?” he said, adding that the administration should not wait on Congress to legislate on the matter. 

“What should be the focus is trying to create rules that are difficult to reverse and reversing quickly the rules enacted under the last administration,” said Bier.

An aggressive use of the rules process and executive power would mirror the strategy used by restrictionists within the Trump administration, which attempted to reform the immigration system from within.

Such an approach could somewhat appease immigration advocates who were hopeful that Biden would initiate a wholesale redesign of the immigration system, disentangling it from the criminal justice system.

But Biden’s use of a number of Trump policies has frustrated many advocates.

Biden initially pledged to raise the refugee cap to 125,000 during his first year in office, but the administration later walked that back, leaving unclear how much it might be boosted beyond the 15,000 refugees the Trump administration allowed to be admitted.

The waffling sparked immediate backlash from Democrats who were irked that Biden was caving to Republican messaging on the border.

“The bigger problem ultimately is they are kind of admitting the underlying basis was sound, that somehow because people are crossing the border we can’t allow in more people from abroad,” Bier said. 

“And there’s always going to be people coming to the border, and there’s always going to be an asylum backlog, and then there’s always an argument to be made for going against pro-immigration things, so they’re buying into a flawed argument, which is a bigger problem,” Bier added.

Even when Biden does begin to put reforms in place, he’ll also be facing a federal bureaucracy some fear may be resistant to his changes.

Immigration and Customs Enforcement (ICE) is already operating under new enforcement priorities. While designed to limit the agency to deportation of those with a more serious criminal background, agents still have some discretion.

“Implementation on the ground has varied from jurisdiction to jurisdiction,” said Jorge Loweree, policy director with the American Immigration Council.

“We expected that some ICE personnel and some unfriendly jurisdictions would push back on their authority, and one of the enduring challenges is making sure their vision on enforcement is fully realized, and the only way to do that is make sure their personnel on ground implement the directives handed down from Washington in a meaningful way,” Loweree added.

Still, many advocates say they feel a sense of relief if nothing else by the change in attitudes toward immigrants from the Trump to the Biden administration.

Hincapié, whose work centers on helping low-income immigrants, praised some of Biden’s early moves on immigration, such as removing Trump’s public charge rule, but said the next 100 days will be the real test for the president.

“The next 100 days will be critical and will be a test of whether he will use political capital and all the levers of government to make good on his campaign promises,” said Hincapié.