Nov 29, 2020 - Politics & Policy

Biden's Day 1 challenges: The immigration reset

Illustration of a passport surrounded by geometric shapes and lines.
Illustration: Aïda Amer/Axios

President-elect Biden has an aggressive Day 1 immigration agenda that relies heavily on executive actions to undo President Trump's crackdown.

Why it matters: It's not that easy. Trump issued more than 400 executive actions on immigration. Advocates are fired up. The Supreme Court could threaten the Deferred Action for Childhood Arrivals (DACA) program, and experts warn there could be another surge at the border.

Where it starts: On his first day, Biden has said he will rescind Trump's Muslim ban through executive action and send legislation to Congress with a pathway to citizenship for the nearly 11 million undocumented immigrants.

  • Biden is expected to use executive action to bolster DACA even as the courts consider its validity. It's unclear whether he will expand protections for more immigrants or add benefits.
  • He'll pause deportations for the first 100 days, stop border wall construction and create a task force to reunite immigrant families.
  • Biden "will work to ensure our immigration policies are reflective of our American values," Jennifer Molina, a spokesperson for the Biden transition team, told Axios.

Even so, it will be difficult for Biden to undo many of the policies Trump pushed through, uphold immigration law and pacify progressive Democrats and the immigration advocacy community, who will be far more critical of anything Biden does than during Barack Obama's presidency.

At the border, Biden has promised to end Trump's "Remain in Mexico" policy, which forced tens of thousands of asylum-seekers from all over to wait for their court dates in Mexico.

  • But undoing all of Trump's strict border policies too quickly could leave the U.S. unprepared for a spike of migrants at the border. To mitigate large migrant flows to the border, the Biden administration is expected to invest in refugee programs in Central American countries.
  • Biden also will be under pressure to let in more refugees from around the world after Trump cut the number of refugees allowed into the U.S. by 80%.

Biden has notably not said he will end the Centers for Disease Control and Prevention coronavirus-related emergency order, which has let officials almost immediately expel nearly 60,000 migrants at the border.

  • Temporarily leaving the order in place could help maintain some order when Remain in Mexico is ended, several immigration experts said.
  • Border crossings are already starting to rise. Leon Fresco, an immigration attorney who worked at the Justice Department under Obama, said it's "pretty likely" that Biden will have to deal with a surge at the border as soon as next summer.
  • Biden would want to avoid scenes of detained children and families that scarred both Obama and Trump, but he must keep order.

On DACA, Biden can easily restore the program by executive action — for now. But immigration advocates and experts are watching a Texas lawsuit challenging DACA's legality.

  • "What DACA recipients deserve is Congress to pass a pathway to citizenship immediately in the near year,” said Todd Schulte, president of FWD.us, a leading advocate of immigration reform.
  • It's a tall order for a likely divided Congress — especially after four years of Trump's immigration crackdown that was widely popular within the Republican Party.

At DHS: Once confirmed, Alejandro Mayorkas — a favorite among advocates — will have to reshape one of the most politicized agencies under Trump.

  • He will need leaders on board at the immigration-focused subagencies of Immigration and Customs Enforcement (ICE), Customs and Border Protection, and U.S. Citizenship and Immigration Services. Any permanent leaders will need to be confirmed by the Senate.

ICE has become one of the most contentious agencies for its role in arresting and detaining immigrants.

  • Biden will likely reset priorities so agents focus arrests on immigrants with serious criminal records, as under Obama.
  • But John Sandweg, who ran ICE under Obama, said Biden will have "a legal duty to faithfully execute the laws" and "there’s still going to be a big disconnect between who the advocates think should be arrested, and the size of the agency, and legal requirements."
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