Camilo Montoya-Galvez, CBS News, September 28, 2020
The 2020 presidential election will pit two drastically different visions on immigration against each other, with the victor retaining or assuming broad executive authorities that have dominated policy-making on the issue for decades in the absence of congressional action.
President Trump’s reelection would allow his administration to continue cracking down on unauthorized immigrants, limiting legal immigration and curtailing humanitarian protections for foreigners. During a second term, Mr. Trump could also see through major policy changes to the U.S. immigration system that have so far been stalled by federal courts.
If victorious, Joe Biden will inherit an immigration system transformed by hundreds of changes made by the Trump administration, including a series of restrictive asylum policies, sweeping green card rules, broader deportation priorities, a decimated refugee program and pandemic-era border restrictions.
Current and former senior Department of Homeland Security (DHS) officials and people close to the Biden campaign said the process of unwinding the Trump administration’s immigration policies could be an arduous and long effort.
“There has been such a demolition of our traditional immigration system under this administration, that the biggest challenge will be deciding where to begin rebuilding first,” León Rodríguez, who led U.S. Citizenship and Immigration Services (USCIS) during President Obama’s second term, told CBS News.
Cristóbal Alex, a senior Biden adviser, said the former vice president would take “immediate actions to undo Trump’s horrific immigration policies,” but conceded some “will take longer than others.”
Rescinding Mr. Trump’s presidential edicts, such as his travel ban on a group of mostly African and Asian countries, will be easier than scrapping the “public charge” wealth test on green cards and visas instituted through federal regulations, officials said. Other changes will require appointing an attorney general committed to overturning precedent-setting decisions, such as one issued by Jeff Sessions in 2018 to restrict asylum for victims of gang and domestic violence.
“Stated policies are fairly easy to reverse, from a practical perspective,” Rodríguez said. “Regulations present a bit more complicated case. Most of the regulations that would be of concern to a Biden administration are the subject of legal challenges. And so, the status of those legal challenges will play a big role in what strategy a Biden administration would choose.”
Ken Cuccinelli, the second in command at DHS, said he expects the Trump administration’s legacy on immigration to endure — even if the president loses reelection. Changing regulations, he added, is “very slow.”
“It’s not like someone shows up on day one and can stop doing regulation A, B or C,” Cuccinelli told CBS News. “Anyone looking to undo all that is going to have a lot of work to do.”
More than 749,000 deportations were carried out in the fiscal years with available statistics under Mr. Trump’s tenure. Midway into Obama’s presidency, ICE deported more than 400,000 immigrants in a single year — a record-high.
“I always say that Trump is abusing the ICE deportation machine that Obama built,” Amy Maldonado, a Michigan-based immigration lawyer, told CBS News. “And by most measures, Trump has been a lot worse than Obama, except for his actual deportations. Obama, hands down, still holds the deporter-in-chief record. Even if Trump had two terms, I don’t think he could match Obama, because he’s not that competent.”
On the campaign trail, Biden has conceded the Obama administration “took too long” to retool its enforcement priorities, calling the number of deportations a “big mistake.” He has pledged to institute a 100-day freeze on deportations. After that, Biden would oversee a “pretty significant adjustment” in deportation policy and direct ICE to focus on threats to national security and those convicted of serious felonies, according to Alex, his senior adviser.
Through several asylum rules, the Trump administration has granted border officials the power to quickly bounce migrants off U.S. soil, effectively ending a system the president and his aides derided as “catch and release.”
More than 60,000 asylum-seekers were returned to Mexico and required to wait there for their U.S. court hearings. Thousands were disqualified from asylum under a new rule because they traveled through a third country to reach U.S. soil. The administration also brokered agreements with El Salvador, Guatemala and Honduras that allow the U.S. to re-route asylum-seekers at the southern border to those countries.
While these programs have been, for the most part, suspended during the coronavirus pandemic, the Trump administration has used a public health directive issued in March to expel tens of thousands of border-crossers, including 8,800 unaccompanied children, without allowing them to apply for asylum.
Biden has promised to undo Mr. Trump’s asylum programs, including the so-called “Remain in Mexico” policy, but he has yet to say whether he’d continue, alter or scrap the current pandemic-era border restrictions. His campaign did not respond to requests to state his position on these policies.
Asked how a Biden administration would deal with a surge in border crossings, Alex said it would deploy more immigration judges and asylum officers and bolster support for non-profit groups helping migrants.
More than 300 miles of barriers have been built along the U.S.-Mexico border during Mr. Trump’s tenure; most of them replacing dilapidated and low barricades, according to U.S. Customs and Border Protection (CBP) figures.
Several Trump administration policies have limited forms of legal immigration by making it harder for immigrants to obtain green cards, asylum and refugee status. The public charge rules, for one, give immigration and consular officials more power to deny permanent residency and visas to applicants the government determines rely — or could rely — on public benefits, like food stamps, housing vouchers and forms of Medicaid.
The refugee ceiling, which Mr. Obama set at 110,000 spots before leaving office, has been slashed dramatically by Mr. Trump, who set the current 18,000-person cap. With roughly 11,000 admissions, the U.S. is on track to take in the fewest number of refugees in modern history this fiscal year, which ends Wednesday.
Biden has said he will halt the public charge rules and set a refugee cap of 125,000 spots during his first year in office — a promise experts said is a lofty objective. “It’s not possible,” a former senior DHS official who requested anonymity to speak freely told CBS News. “The volunteer agencies that handle the resettlement once someone gets here, their infrastructure has been devastated. They don’t have the people to handle that kind of population.”
Biden has pledged to work with Congress on legislation that puts DACA recipients and the rest of the country’s estimated 11 million unauthorized immigrants on a pathway to U.S. citizenship.