United States: Biden Versus the Arc of Immigration Policy

By Dennis Stinchcomb and Jayesh Rathod*

Acting Deputy Commissioner Ronald D. Vitiello visits the Border Wall Construction Site near the Otay Mesa Port of Entry/ Photo Courtesy of U.S. Customs and Border Protection/ Yesica Uvina/ whitehouse.gov/issues/immigration/ Creative Commons License

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.

Nicaragua in the Time of COVID-19

By Kenneth M. Coleman*

Presidente de El Salvador participa en Cumbre SICA-Nicaragua.

President of Nicaragua Daniel Ortega /Flickr / Creative Commons

Nicaraguan President Daniel Ortega and his wife, Vice President Rosario Murillo, have not appeared in public for 28 days, but their response to the threat of COVID‑19 has consistently been the equivalent of “Don’t worry, no problem, we got this!” Government policies suggest it is going out of its way to pretend the virus poses no threat to Nicaraguans.

  • On April 4, the pro-Ortega city council of Altagracia on the tourist island of Omotepe promoted a motorcyclist gathering by offering free fuel and free transport on very crowded ferries. Press photos of the event show no masks and no social distancing.
  • Several days earlier, the government orchestrated the arrival of hundreds of supporters to celebrate the opening of a bridge in Granada, with a similar absence of anti-viral measures.
  • In late March, “health brigades” were mobilized to visit households and provide information on how to avoid COVID‑19, but some citizens refused the visitors because of the lack of social distancing.
  • Private schools have closed, but public schools and universities have not. Media reports are that primary and secondary teachers are being pressured to schedule exams to compel attendance. Some parents are keeping their children at home anyway.
  • On March 13, Murillo convoked a march (but did not personally participate) entitled “Love in the Time of COVID-19,” with thousands of party supporters and public employees and their children marching in close contact.

Citizens say the government’s posture has not been reassuring and are taking action themselves. The government has not revealed the number of tests conducted, but has reported only six cases of coronavirus, all people who had been abroad, with one confirmed death. It reports no community transmission inside Nicaragua, although three Cuban women have tested positive for the virus after visiting Nicaragua. Dora María Téllez, who was a Health Minister in the 1980s, says the government is not seriously pursuing contact tracing. Costa Rica’s admission of 502 confirmed cases makes people doubt Managua’s figures. Local leaders, most affiliated with the government, have shown little willingness to taking independent action on the virus.

  • In a mid-March survey, CID-Gallup found that 65 percent of Nicaraguans were “not at all satisfied” with the government’s handling of the virus, while 11 percent were “dissatisfied.” In the same survey, 57 percent said they felt there was “much risk of contagion” in their neighborhood, and another 25 percent felt there was “some risk.”
  • Taking matters into their own hands, family-owned market stalls in public markets started closing weeks ago. Two major companies in maquila zones last week furloughed 19,000 workers to protect their health. Citizens have created an Observatorio Ciudadano COVID‑19 to collect data on cases and exposures to the virus. The Superior Council of Private Enterprise (COSEP) has pleaded with the government to close schools and allow private hospitals to test for the virus, and it joined the Central American Institute for Business Administration (INCAE) and other private-sector organizations to encourage social distancing, urge debt relief for the poor, and create a Humanitarian Assistance Fund. The government has not responded to their offers to cooperate.

Nicaraguan experts, such as epidemiologist Leonel Argüello, fear the country could eventually have as many as 500,000 COVID‑19 infections, implying thousands of deaths. The consequences for Nicaragua’s years-long political standoff are unclear. While the business community is extending an open hand to deal with the crisis, the government seems disinclined to cooperate. The one situation that would alter this dynamic is if Daniel Ortega himself – who has not appeared in public for four weeks now – were to be incapacitated. On COVID‑19, Rosario appears to be calling the shots, but if Daniel is seriously ill, internal dynamics, over time, might prove unpredictable. Were he to die, it would put in jeopardy the dynastic succession that he and Murillo (and her two sons) have worked hard to put in place. Rosario and the sons are already under sanctions by the U.S. Department of the Treasury. Even members of their party might see some disadvantages to having a president unable to conduct most international banking transactions.

April 9, 2020

* Kenneth M. Coleman is Director for Partner Programs at the Association of American Universities. The views expressed herein are his own.