By Dennis Stinchcomb and Jayesh Rathod*

U.S. Democratic presidential nominee Joe Biden has pledged more than just a return to the Obama-era status quo on immigration, but the historical arc of immigration policy, the pandemic, entrenched agency cultures, and the limitations of executive lawmaking point to modest progress by a would-be Biden Administration. Absent from the Biden-Harris immigration platform are many of the more progressive proposals of Biden’s rivals for the Democratic nomination, including commitments to decriminalize border crossings, abolish or restructure Immigration and Customs Enforcement (ICE), eliminate expedited removal proceedings, and temporarily halt deportations in hopes of compelling Congressional action. Even so, the Biden-Harris plan promises urgent action within their first 100 days to reverse President Trump’s sweeping changes to the immigration system, followed by novel reforms.

But the challenges faced by a Biden Administration would extend far beyond the mountain of executive formalities (and potential defensive litigation) needed to “undo Trump’s damage.” Since 1986 – the last time Congress passed comprehensive immigration legislation – two dominant trends embraced by administrations from both parties have constrained the potential for pro-immigration advances, leading to a one step forward, two steps backward dynamic from which a Biden Administration would have to break free.

• Criminalization. In the runup to his 1996 re-election, President Clinton signed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which laid the groundwork for the aggressive immigration enforcement regime of the Trump Administration. IIRIRA subjected legal immigrants to deportation for a range of non-violent offenses, limited the due-process rights of certain categories of immigrants facing deportation, and facilitated the recruitment of local law enforcement agencies to carry out immigration directives. Today, a remarkably broad swath of criminal activity triggers immigration consequences, and migration-related conduct (including unlawful entry) is increasingly subject to criminal sanction.
• Securitization. The Bush Administration’s framing of immigration as a security issue after 9/11 and the reorganization of the Immigration and Naturalization Service within a new Department of Homeland Security (DHS) put additional pressure on migrants. Intensive vetting of would-be migrants, including extra scrutiny of nationals from certain countries, often dovetail with the “criminal alien” narratives, particularly when migrant streams are portrayed as vectors for drug trafficking and organized crime.

President Obama gradually realigned enforcement priorities and promoted a culture of prosecutorial discretion, but the deeply entrenched notions of immigrants as lawbreakers with suspect intentions limited and undermined his pro-immigration policies. When faced with record numbers of arrivals at the southern border, the Obama Administration could not escape the enforcement paradigm, choosing to dramatically expand the practice of family detention and deport millions of noncitizens without criminal records.

• This enforcement dragnet reinforced an agency culture within ICE and other components of DHS that equated increased apprehensions and removals with success. Obama’s timid reform policies and aggressive enforcement left enshrined criminalization and securitization as hallmarks that made it easy for Trump to implement unprecedented restrictionism. The President has infused his rhetoric with repeated references to immigrants as “bad hombres” and as threats, not just to public safety, but to American culture and identity.

If Mr. Biden takes office, we can expect a deluge of executive orders undoing many of the 400-plus actions taken by the Trump Administration that dramatically curtailed legal immigration, cut off temporary protections, and dismantled the asylum system. But an immigration counterrevolution is unlikely. Biden has acknowledged the missteps of the Obama-Biden Administration, but his middle-of-the-road approach – compared to the proposals advanced by other Democrats – fails to recognize that the ills of the immigration system predate President Trump.

• Far-reaching reforms that break the decades-long trend to criminalize immigrants and view them through a security lens will require more than regulatory tinkering. Another wave of White House-mandated programs that grant temporary relief while subjecting immigrants to perpetual uncertainty is unlikely to satisfy immigrant communities and their advocates. The public health crisis caused by COVID-19, moreover, has provided renewed impetus for the securitization of immigration and may prove one of the greatest obstacles to Biden’s immigration agenda, which is silent on the pandemic.
• Hope for groundbreaking reforms may only come in the form a Democratic-controlled Senate, where a legislative overhaul might embrace the decarceration and other less punitive approaches gaining traction in the criminal justice context. But even then, a Biden Administration would have to contend with thousands of existing DHS employees with a fundamentally different vision for migration management. These conditions, which align with the broader arc of immigration policy, forecast only incremental progress.

October 13, 2020

* Dennis Stinchcomb is the CLALS Assistant Director for Research, and Jayesh Rathod is Professor of Law and Director of the Immigrant Justice Clinic at the Washington College of Law.