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Can Biden do more than just undoing Trump’s anti-immigration legacy?

A backlash from Trump—and a need for essential workers—may create the urgency for Biden to push for real immigration reform, not just administrative fixes.

Can Biden do more than just undoing Trump’s anti-immigration legacy?
[Source photos: Library of Congress, Prints & Photographs Division, [LC-USZ62-137829]; [LC-DIG-highsm-26281]; [LC-DIG-ppmsca-54584]; [LC-USZ62-23711]; Official White House Photo by Adam Schultz/Flickr]
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It’s now an image forever etched into the history of America: Donald Trump descending the gold escalator of his Fifth Avenue hotel to announce his candidacy for president. The words he delivered after would be just as long-lasting. “When Mexico sends its people, they’re not sending their best,” he famously spouted, not even two minutes into his 45-minute campaign launch speech. “They’re bringing drugs. They’re bringing crime. They’re rapists. And some, I assume, are good people.” It was evident from the very start that Donald Trump’s presidency was founded on anti-immigrant sentiment.

It wasn’t mere talk: His changes to immigration law will be one of Trump’s primary legacies. Border wall construction and an outright ban on people from certain Muslim-majority countries lasted throughout his presidency. He instated policies that separated families, and gave ICE carte blanche to deport people for whom America is the only country they’ve ever known. It’s estimated that he changed more than 400 immigration policies, effectively dismantling the legal immigration system and concretely reconstructing it, to curb entry and suspend certain visas, increase enforcement and penalties, and effectively end asylum. While President Biden pledged to reverse many of these policies, they’re so numerous that they can’t be changed overnight. “It is unlikely that a future administration will have the political will and resources to undo all of these changes at anywhere near a similar pace,” write the authors of a report by the Migration Policy Institute.


Read all the stories in the series. New stories will publish each day this week:

• How to rebuild the broken EPA after Trump trashed it

• President Biden, appoint a fashion czar!

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• A $15 federal minimum wage would reshape the lives of working people. Can Biden deliver?

• Fighting AI bias needs to be a key part of Biden’s civil rights agenda

• Can Biden save public transit from the pandemic?

• Meet HARPA, the bold way Biden can jump-start health innovation


President Biden has said it is not just a priority, but a moral obligation, to right the “chaos, cruelty and confusion” of the Trump era immigration policies, calling it on his campaign website “an unrelenting assault on our values and our history as a nation of immigrants.” On his first day in the Oval Office, he fulfilled many of the stump promises he made by executive actions, rescinding the Muslim ban, pausing border wall construction, and ending the national emergency declaration at the southern border, which siphoned $3.6 billion of Defense funds into the wall, and billions more into counter-narcotic initiatives.

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President Biden seems aware of the taxing task ahead of restoring a sturdy immigration system, and improving its operability and kindness, for immigrants who have contributed for years to the economy, and are now helping America recover from simultaneous crises. “President Biden believes that immigrants are essential to who we are as a nation and critical to our aspirations for the future,” a recent White House release read. But one executive order has already been halted by the courts, an early lesson in the flimsiness that comes with power of the pen.

In order for real change, he will need Congress to pass comprehensive immigration reform. Generally, any policy change that addresses permanent residency or citizenship needs legislation. So, his first 100 days will likely be defined by executive orders, plus “priming the pumps for meaningful comprehensive immigration reform,” says Xiao Wang, co-founder and CEO of Boundless, an immigration law startup created to allow immigrants to better navigate the system. But, that’s no easy feat. “There’s a reason why it hasn’t happened since 1965,” Wang adds. (The Immigration and Nationality Act of that year essentially created the preference system, based on family and employment, that is the foundation of today’s immigration policy.)

“What we have not gotten that entire time is the other half of the bargain”

Since then, many administrations have since tried—and failed—to overhaul the system; after promising during his campaign to tackle it, President Obama shelved it and used his political capital on healthcare. In contrast, Biden has already sent a legislative bill to Congress, his “U.S. Citizenship Act of 2021.” It’s an ambitious bill, but likely just an “opening negotiation, and will not get hammered out for a while,” Wang says. But, experts say Biden now has a mandate, after being elected with more than 81 million votes. What’s more, public opinion is in reform’s favor, especially on one of the most central themes of the bill: 81% of Americans support a pathway for immigrants to citizenship.

One of the most at-risk groups of immigrants are those enrolled in the DACA program. Commonly known as the Dreamers, these individuals were brought to the U.S. unlawfully as children, but were granted temporary stay by the Obama administration in 2012, allowing them to live, work, and travel on an interim basis. On his first day, Biden also signed an executive order to strengthen protections for DACA recipients. But, without Congress, “fundamentally, it still sits in this limbo zone,” Wang says, with these 600,000 Dreamers hanging on without any certainty of their ability to stay permanently. Another 300,000 or so are enrolled in a similar program called Temporary Protection Status (TPS), granted nonpermanent asylum because of conflict or disasters in their home countries, including Haiti, Sudan, and Syria. Their statuses are now threatened after Trump attempted to end the program. Depending on their home country, they’re allowed to stay for some of 2021, but their futures rest on the outcome of legal battles.

Legalizing essential workers immediately is really a matter of national recovery.”

Biden’s bill recommends putting not only these people onto a path to citizenship, but also including a total of about 11 million undocumented people currently in the country, all of whom would be granted the opportunity to apply for this track. For many of these people, their children and all their roots are in America; an estimated 60% of them have been in the U.S. for more than 10 years. Under the plan, as long as they arrived before January 1, 2021, they would be eligible to apply for green cards immediately, placing them on a five-year process, after which they’d be eligible for the three-year citizenship process. That’s a move applauded by immigration advocates. For Marielena Hincapié, executive director at the National Immigration Law Center, the U.S. has spent decades diverting billions of dollars into enforcement and security, but: “What we have not gotten that entire time is the other half of the bargain—a pathway to citizenship.”

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These people, including farm workers, auto workers, and manufacturers, are “essential workers of the climate era,” says Saket Soni, executive director of Resilience Force, which fights for the fair treatment of workers who rebuild communities after natural disaster. Soni is one of many advocates who want these workers—and now, the essential workers of the COVID-19 pandemic—to be fast-tracked for citizenship. “This is bigger than immigration,” he says. “Legalizing essential workers immediately is really a matter of national recovery.”

Soni suggests a two-year citizenship process as a fast-track goal. France recently granted its frontline workers citizenship; in the space of four months, 700 had already been naturalized or were in the final stages of the process. Since it likely will not happen so swiftly in the U.S., Soni says that in the meantime, they should be granted temporary status—like DACA and TPS recipients—so they don’t have to worry about their status as they go about their frontline work. Many fear deportation everyday, even as they feed America and help it recover.

Stopping the deportation machine

To address this constant torrent of deportations, another of Biden’s day-one orders was putting a 100-day moratorium on those expulsions. Before that was signed, ICE seemingly ramped up deportation sprees. Even on Inauguration Day, a grandfather who’d lived in the U.S. for 30 years, and whose wife and children were permanent residents, was deported after a traffic stop. On the same day, a woman—a survivor of the El Paso Walmart shooting, where the gunman targeted Mexicans—was deported even after helping police with that investigation.

A federal judge in Texas has now blocked that executive order, and deportations continue. Often, there are reports of ICE agents “going rogue,” Soni says, “inventing their own policies, giving themselves permission to go hunting for immigrants.” Often, ICE agents and police ask for the resilience workers’ papers even as they rebuild those officials’ homes. Pandemic workers are now facing the same. Even if Biden’s deportation freeze goes back into place, there will need to be accountability for ICE, signaling that management will be just as important as policy. In the bill, there’s a section dedicated to training and education for agent professionalism.

Probably, the best bill is not going to make anyone happy.”

The unexpected pushback on the deportation order may have been the cause of a shift in style for the second set of executive orders, which were delayed by four days. Rather than calling for actions, they order a “top-to-bottom review” of policies and regulations, to study how they can best be changed. In one instance, Biden has ordered the review of the public charge rule, which can deny entry or visas due to the use of public benefits,  rather than just rescinding it, because it’s made up of different federal agency regulations.

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The wording of this set of orders suggests a plan to create robust actions that will be harder for future administrations to roll back—rather than “bandaid fixes,” Wang says. Trump conducted quick executive orders that were rough and ready, and open to legal challenges by Democrats. Republicans are likely to use the same legal playbook. “I do think that the bar for getting something to stick is now higher,” Wang says.

For some immigrants—and separated families—the damage has already been done, says Krish O’Mara Vignarajah, president and CEO of Lutheran Immigration and Refugee Service, and Michelle Obama’s former policy director. Her organization, a nonprofit dedicated to refugees and asylum seekers, helped in the reunification of about 1,000 families in 2018. But there are still approximately 600 children—who’ve spent more than 1,000 nights away from their parents—whose parents are probably no longer in the U.S. or are missing. Biden has ordered the creation of a task force to reunite families, for which Jill Biden will reportedly play a large role. In another area, Trump’s “Remain in Mexico” program, which forced asylum seekers to wait outside the U.S. for their trial date, led to mass camps at the dangerous border, and there have been COVID-19 outbreaks as well as 1,000 reports of kidnappings, assaults, and even murder.

There are also an estimated 20,000 people with open cases, with trials indefinitely suspended due to the pandemic. The application backlog that’s one of Trump’s structural legacies; green card and citizenship applications are now taking twice the time as before. Biden’s bill addresses clearing those logjams. Even people now theoretically allowed to enter the U.S. with the rollback of the Muslim Ban, are reporting no movement in visa processing yet. Logistically, this will all take a while, probably more than 100 days, as the USCIS is restaffed and immigration courts are rebuilt.

Can new leadership chart a new direction?

For the first time ever, the Department of Homeland Security will be headed by an immigrant, Alejandro Mayorkas, who immigrated from Cuba, led the USCIS under Obama, and was the chief architect of DACA. Marielena Hincapié, executive director at the National Immigration Law Center, who knows him personally, says: “He is someone who will listen to the voices of immigrant communities . . . he is compassionate, fair, and deeply committed to restoring due process to our system.” His confirmation was delayed after some Republican opposition, and narrowly passed by 56 to 43 votes, in what could be another sign of looming conflict with Republicans over Biden’s immigration plans.

Even with a Democratic majority, getting 60 votes for the bill is a tall order for a new president with only so much bipartisan goodwill. “How do you turn immigration into not ACA 2.0?” Wang asks, referring to the cautionary tale of Obama’s Affordable Care Act, a landmark victory that arguably resulted in Democrats losing the House in the 2010 midterms. Realistically, the bill will face lots of trade-offs—perhaps by excluding some groups from the pathway to citizenship, or shaving off some of the peripheral demands, such as raising the cap for the green card lottery. “What’s going to happen, like everything in democracy, is that the end state is not going to make everyone happy,” Wang says. “Probably, the best bill is not going to make anyone happy.”

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But, even without having passed anything, one of the most effective things Biden has already done is shifted the language and tone around immigration, changing the narrative of immigration to lift the dignity of immigrants. The populism and xenophobic attitude to immigrants in the Trump era is not just a blip, rather something that’s happened countless times in American history. That’s why it needs a fundamental cultural change. The bill is intended to “restore humanity and American values to our immigration system,” and calls immigrants “hardworking people who enrich our communities every day.” Significantly, it changes the long-used term “aliens” to “non-citizens.” Mayorkas may be key in ushering in that culture of humility. “Our success will be measured not only by the results we deliver, but also by the values we uphold in achieving them,” he reportedly emailed to DHS staff. “We will respect the rights and dignity of others.”

That rebrand is equally about making immigration reform more palatable for Republicans, in shifting the mindset from immigrants diluting American values to giving the nation something conservatives care about—an economic edge—especially during a recession. Now, during a severe economic downturn, is a unique moment in time to push for an immigrant-inclusive recovery. One idea is to perhaps place some immigration policies, like the pathway to citizenship for frontline workers, in a COVID recovery bill.

Soni recalls the clapping for essential workers at the very start of the pandemic, a daily evening routine that was supposed to be a mark of appreciation for those people’s outstanding courage. “A real question for us this year,” he says, “is going to be whether we can translate all of that gratitude into political will for change.”