President-elect Biden: Eliminate chaos as a deliberate immigration tactic

The 400-plus changes to U.S. immigration law over the past three and a half years have caused substantial confusion among attorneys, medical evaluators, and immigrants. The fact that many of these changes have been challenged in court has only exacerbated misunderstandings. This may be the very point of poorly drafted and convoluted executive orders and agency rules: to deter individuals from immigrating, applying for asylum, or remaining in the United States. The Trump administration has used chaos as a deliberate immigration tactic, and it has been effective.

Immigrants have faced repeated threats in multiple arenas, including repeated travel bans, jeopardy to the Deferred Action for Childhood Arrivals (DACA) and Temporary Protected Status programs, raids by Immigration and Customs Enforcement agents, and aggressive asylum restrictions. While some of the changes have been well thought-out and crafted, many have been haphazard, with a clear understanding that they would be challenged in court. As one immigration expert told Vanity Fair, Trump immigration advisor Stephen Miller “doesn’t actually care if something is held up by the courts. He actually prefers the chaos that this creates.”

Courts have struck down or delayed some of the Trump administration’s immigration policy changes. But litigation takes time. And, with enough uncertainty generated, these policies have a similar impact as if they were actually implemented. In essence, the impact of these public policy changes extend far beyond the specific legal modifications themselves.

For example, consider the administration’s public charge rule, used to determine whether an immigrant can be refused admission or deported because they rely too much on public benefits. Until this year, the immigration agency defined a “public charge” as a noncitizen who depended on public cash assistance. A 216-page rule that took effect in February changed the definition to include individuals who receive non-cash benefits such as food stamps, Medicaid, or housing assistance. While the Migration Policy Institute estimates that less than 1 percent of immigrants will actually be impacted by the rule’s change, millions of immigrants have disenrolled themselves from public benefits, fearing that accepting any public benefits might make them deportable. Programs that helped children were hardest hit, such as food stamps and the Children’s Health Insurance Program, resulting in a detrimental, multigenerational health and economic impact. The engineered policy change chaos had its intended effect.

The cumulative impact of the policy assault against immigrants is far greater than any one change. Reactively, all immigrants are being deterred, whether they fear detention and family separation, are wary of instability and the relentless threat of deportation or are afraid of anti-immigrant rhetoric and discrimination. This is seems to have been a direct goal of these haphazard public policy changes.

At a time when the U.S. should welcome highly skilled workers, such as physicians and nurses who can contribute to the pandemic response, the chaos is resulting in a weaker, more unhealthy and more unstable situation. This is particularly detrimental in a time when trust is critical to containing the spread of the coronavirus. A month after the public charge rule took effect, the U.S. Citizenship and Immigration Services announced all noncitizens with COVID-19 symptoms could seek treatment without fear that doing so would make them a public charge. Despite this reversal of policy, the damage had been done, endangering the health of all Americans.

It will take time to rebuild immigrants’ trust in America. But President-elect Joe Biden can and must. Here are several things he can do:

First, even before he is inaugurated, Biden should send a clear message that immigrants are welcome and important. For example, immigrants constitute many of our essential workers. More than 2.6 million immigrants are health care workers, with 1.5 million of them working as doctors, registered nurses, and pharmacists. Immigrants also account for 38 percent of home health aides.  

Second, after he takes office, Biden should issue executive orders to undo existing immigration travel bans and re-affirm the DACA program.

Third, Biden should nominate experienced administrators who know how to make our complicated immigration system work effectively for immigrants, not against them.

Fourth, Biden should work with Congress to override recent immigration rules under the Congressional Review Act within 60 days after Congress is in session.

Fifth, for other rules Biden should start the rulemaking process to reverse ambiguous immigration policy changes with clear, straightforward rules. Reverting to the prior guidance on cash assistance placing immigrants at risk for public-charge related deportation is a first step. Providing clear guidance will also decrease the burden of unclear policies on Americans themselves, such as confusing administrative hurdles and resultant inefficient time input from businesses, hospitals, and universities.

Sixth, Biden should work with Congress to enact legislation to reform our broken immigration system.

Chaos as an immigration strategy has had substantial harmful impacts on our economy, our health, and our safety as a nation. Recognizing this, President-elect Biden must reverse this detrimental practice. None of this will be easy, given competing demands. But it is necessary.

Gunisha Kaur is Director of the Global Health Initiative and an assistant professor at Weill Cornell Medicine Anesthesiology. Follow her on Twitter @gunishakaur

Stephen Yale-Loehr is Professor of Immigration Law Practice at Cornell Law School. Follow him on Twitter @syaleloehr