By Sarah Akers, Woodson Martin Democracy Program Fellow, JMU ’20, Justice Studies
Introduction
The Trump administration was heavily criticized by immigration advocates for his policies on the subject, as well as his rhetoric. A president who was outspoken about his anti-immigrant views was voted out of office, and a president who vowed to address root causes of migration was voted into office. It seemed as though the tides would turn. But has immigration policy really changed under a new administration?
Title 42
Title 42 is a public health law that former-President Trump began using in March 2020 to deport immigrants in the name of stopping the spread of COVID-19. Title 42 is a section of the Public Health Service Act that permits the government to temporarily bar noncitizens from entering the country “when doing so is required in the interest of public health.” This law has been used to automatically deport almost all migrants seeking entry to the United States, and doing so bypasses typical immigration laws and protections.
Immigrant rights advocates expected President Biden to discontinue the use of the policy. However, Biden has since announced his plans to continue using the policy indefinitely. Since the onset of the pandemic, nearly a million people, including children, have been rapidly deported under Title 42 – 459,000 under Trump and more than 500,000 under Biden. It was especially controversial when the Biden administration used this law as justification to deport around 4,000 Haitian migrants without giving them the opportunity to seek asylum.
Scientists at the CDC initially opposed the use of the policy saying there was no legitimate threat to public health. However, then-Vice President Mike Pence ordered the agency to follow through with the order anyway. There are now thousands of immigrants who are stranded on the Mexican side of the border in makeshift camps. They are often targeted by cartels; through surveys and public media, advocates have documented over 6,300 reports of violence against migrants deported back to Mexico under Title 42.
Executive Actions
In his first 100 days in office, President Biden issued 94 executive actions related to immigration; a number of these were on his first day. One of these was to halt construction on the border wall. The national emergency declaration on the southern border also ended, which is what allowed Trump to reallocate funds to begin construction on the border wall. However, Biden has asked for $1.2 billion for border infrastructure, which would include things like surveillance technology and aircrafts. Republicans in Congress are still insisting a majority of this funding go towards the construction of a border wall. Another executive order issued on January 20th, 2021 revoked Tavel Bans 4.0 and 3.0, which are also known as the Muslim and African Travel Bans.
Another consequential executive order came on February 2nd, 2021 titled “Creating a Comprehensive Regional Framework to Address the Causes of Migration, to Manage Migration Throughout North and Central America, and to Provide Safe and Orderly Processing of Asylum Seekers at the United States Border.” This was designed to be a multifaceted approach to immigration along the southern border by working with nongovernmental organizations, nonprofits, international organizations, and governments in Central America.
The order creates an interagency team to prepare a “Root Causes Strategy” to address the underlying reasons that lead to migration, such as poverty, violence, natural disasters, and corruption. Additionally, the order revoked a presidential memorandum from 2019 that created additional barriers for asylum seekers, including imposing an application fee for asylum claims.
Also at the beginning of February 2021, President Biden issued an executive order titled Establishment of Interagency Task Force on the Reunification of Families, which does exactly what the name implies and created a task force to identify and reunite families separated at the southern border by immigration officials. Parents who were deported are being granted humanitarian parole in order to return to the United States to be reunited with their children. This has only been done with a handful of families and hundreds still need to be reunited.
On May 14, 2021, Biden issued a proclamation that revoked one of Trump’s 2019 proclamations titled Suspension of Entry of Immigrants Who Will Financially Burden the US Healthcare System. Trump’s proclamation required all applicants for immigrant visas to prove that they would be covered by health insurance within 30 days or that they have the financial means to pay for any foreseeable medical costs.
“Remain in Mexico” Policy
The Migrant Protection Protocols, more commonly known as the “Remain in Mexico” policy, was implemented in January 2019 by the Trump administration. This policy forced tens of thousands of asylum seekers to remain in Mexico while their claims were being processed. As a clear violation of US and international law, since it puts asylum seekers in further danger, the Biden administration announced it would no longer admit people into this program on January 20, 2021. On June 1, 2021, the administration terminated the policy.
However, the states of Texas and Missouri have now sued the federal government to have the program reimplemented. In August, a federal judge in Texas ordered the administration to reimplement the policy. The Biden administration is set to reinstate it by the end of the year pending an agreement with the Mexican government.
Refugee Cap and TPS
During the final fiscal year for the Obama administration, the refugee cap was set at 110,000. Trump slashed this number to 15,000 refugees annually. During his candidacy, Biden promised to raise this cap to 125,000. However, in February 2021, Biden lowered this promise to 62,500. Even more disappointing for some, the Biden administration announced in April 2021 that the cap would be set at 15,000 for the following fiscal year. After enormous backlash, Biden raised the number back to 62,500 refugees.
In March 2021, the Biden administration designated Venezuela and Myanmar (formerly known as Burma) for Temporary Protected Status (TPS). This protects migrants from these two nations who are currently in the US from deportation and allows them to work in the US for up to 18 months. The Trump administration attempted to terminate TPS for 97% of recipients. However, legal challenges blocked these terminations.
Detention Centers and ICE
At the end of the Trump administration, ICE was detaining an average of 15,000 people in immigration jails. At the end of Biden’s first 100 days in office, ICE was detaining an average of 22,000 people. In his proposed budget for 2022, Biden asked for enough funding so ICE can detain up to 32,500. The number of migrants at the southern border has been steadily increasing since April 2020.
On Inauguration Day, the Department of Homeland Security released new enforcement priorities for ICE. Whereas the Trump administration broadened ICE’s priorities to include all unauthorized migrants, the Biden administration has now focused on unauthorized migrants who present a national security risk and are public safety threats with certain criminal convictions or gang affiliation. The purpose of this change is to go after the highest priority cases.
DACA
On his first day in office, Biden issued a memorandum to the Attorney General and the Security of Homeland Security titled “Preserving and Fortifying Deferred Action for Childhood Arrivals (DACA).” This memo directed the Secretary and AG to “take all actions he deems appropriate, consistent with applicable law, to preserve and fortify DACA.” The DACA program was established in June 2012 to protect unauthorized immigrants who were brought to the United States as children. The program has more than 600,000 active recipients.
The Trump administration took several actions to dismantle the program, first announcing it would end the program in September 2017. The Department of Homeland Security (DHS) stopped processing new applications. However, the US Supreme Court ruled in June 2020 that the administration’s attempt to terminate the program was unlawful. Under Trump, former-acting DHS Secretary Wolf issued a memorandum curtailing DACA and barring first-time applications. In November 2020, a federal district judge ruled that Wolf’s memo was unlawful. This same judge ordered the Trump administration to reinstate the program in December 2020, after the DHS did not reinstate it after the November ruling.
Conclusion
While President Biden is not using the same hate-filled rhetoric as former-President Trump, he is also not making the progress that some immigrant advocates had hoped. His promises to restructure the asylum system have, thus far, fallen through. There are still many issues with the process of ensuring protections for those who qualify for asylum and removing those who do not. Immigrant advocates’ biggest critique of the current administration has been their continued use of Title 42 to deport almost all incoming migrants. Advocates are recommending continued preservation of DACA, ceasing the use of Title 42, increasing the refugee cap, reuniting and providing support services to all families separated at the border, and creating a more effective system for processing asylum applications.
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