The administration’s best-case scenario is a “totally mixed bag,” said Jorge Loweree, policy director at the American Immigration Council. “And worst case is an effective continuation of what Trump wanted.”
Immigration has been a politically perilous issue for Biden, whose approval rating has sagged. During an influx of unaccompanied migrant minors in the spring, Biden tapped Vice President Kamala Harris to address root causes of migration — an intractable issue that’s dogged previous administrations. While Harris has announced private-sector investments in Central America, she’s largely kept the situation at the US-Mexico border at a distance.
Republicans have continued to seize on the record number of border arrests and have filed lawsuits challenging policy changes, hampering the administration in its attempt to execute some of its pledges.
Most notably, a federal judge in Texas blocked the termination of a Trump-era border policy forcing non-Mexican migrants to stay in Mexico until their US immigration court dates and required the administration to bring back the controversial program it opposes and still seeks to end.
Another Trump-era border policy that immigrant advocates and the United Nations have urged the Biden administration to ditch also remains in effect. A public health authority, invoked at the onset of the coronavirus pandemic, allows authorities to turn away migrants encountered at the US southern border, effectively barring them from claiming asylum.
When asked about the authority, known as Title 42, the Biden administration has referred to the Centers for Disease and Control Prevention, which, according to a White House spokesperson, deems it necessary given the Delta and Omicron variants.
There’s also been frustration internally over immigration policy. “There’s been disillusionment with immigration policy and lack of follow-through on principles espoused in executive orders issued earlier in the year,” said one administration official said.
Immigrant advocates — who expected significant changes after four years of curtailed immigration under then-President Donald Trump — have welcomed the unwinding of some Trump-era policies but also have increasingly voiced concern and disappointment to officials over the administration’s actions in numerous discussions.
“The Biden campaign promised to welcome people with dignity, and instead we have returned to Trump policies,” said Karen Tumlin, attorney, founder and director of Justice Action Center, in a call with reporters. “This is not the change millions sought when Biden was elected.”
The White House defended the administration’s actions and reversal of Trump-era immigration policies.
“The President has made clear that restoring order, fairness, and humanity to our immigration system are priorities for this Administration. Our immigration system is outdated and in bad need of reform; But this Administration is committed to working day in and day out to provide relief to immigrants and bring our immigration system into the 21st century,” a White House spokesperson said in a statement.
Treatment of migrants
Tumlin, among others, is suing the administration over the treatment of Haitian migrants who amassed at the US-Mexico border this fall.
In a December letter directed to Biden and Harris, dozens of immigrant advocacy groups urged the administration to ditch Trump-era border policies, calling them “harmful” and “illegal.”
“Nearly eleven months since taking office, this administration continues to violate U.S. asylum law and evade U.S. treaty obligations by blocking and returning asylum seekers to places where their lives and safety are in peril,” the letter reads.
The United Nations refugee agency has also repeatedly chimed in, lambasting the use of the public health order.
The continued use of the public health order is an example of the unique position the Biden administration finds itself in: tackling a pandemic and wrestling with a growing number of migrants at the US southern border, many of whom are fleeing conditions at home that were exacerbated by the pandemic.
Early on in Biden’s presidency, officials grappled with a record number of unaccompanied minors arriving at the US-Mexico border that stretched thin resources and overwhelmed border facilities. While slightly fewer migrant children have arrived in recent months, other flows, like those stemming from South America, have presented new challenges.
“The volume and emergencies have had us in a defensive posture rather than reforms and a proactive agenda,” an administration official told CNN.
Reuniting children separated during Trump years
Despite various setbacks, the Biden administration has made some inroads on its immigration agenda, including changing enforcement guidelines to prioritize certain undocumented immigrants for arrest and deportation, ending mass worksite enforcement, halting border wall construction and no longer applying controversial rules, like the Trump-era public charge regulation that made it more difficult for immigrants to obtain legal status if they used some public benefits.
Biden also established a task force to reunite families who had been separated at the US-Mexico border under the Trump administration. Last week, the task force — led by the Department of Homeland Security — reunited the 100th family separated under the Trump-era “zero tolerance” policy.
Even so, for parents who experienced their children being taken from them — with no hint of where they were going — it’s been difficult to trust the federal government, regardless of who’s president. And the recent fallout over settlement talks strained that already-fragile relationship.
Lawsuits have stemmed from the zero-tolerance policy and separation of families. For example, the American Civil Liberties Union filed a class-action lawsuit in 2019 seeking damages for the toll the separations took on families, and attorneys for families have filed separate claims.
After a steady drumbeat of criticism from Republicans about the ongoing settlement negotiations, the Justice Department this month broke off the talks with attorneys for separated families.
Next year is expected to bring more court hearings, including in the class-action lawsuit seeking damages, and additional immigration policy changes, like building out asylum capacity.
Democratic lawmakers, meanwhile, have pledged to continue to fight for immigration revisions — an effort that’s dogged Congress for decades. The Senate parliamentarian this year rejected multiple attempts to include immigration provisions in the massive spending bill, a setback to getting changes passed without Republican support.
Those efforts are likely to keep facing the same uphill battles in the coming year.
“They have to win on this because they’re in such a bad place with advocates and immigration broadly,” a source close to the White House told CNN, referring to immigration restructuring. “Not delivering on this issue will be terrible for them politically.”