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.

Mexico: Racing Against Trump’s Immigration Crackdown

By Carlos Díaz Barriga*

Border crossing Mex-US

Southwest border crossing. / U.S. Customs and Border Protection / Flickr / Creative Commons

U.S. President Donald Trump’s failure in his first 100 days to fulfill his most aggressive campaign promises affecting bilateral relations may have calmed nerves in Mexico, but the Peña Nieto Administration is moving ahead with efforts to mitigate the impact of thousands of returning immigrants.  Trump apparently has given up on making Mexico pay for his proposed border wall, and the U.S. Congress doesn’t want to foot the bill either.  He has also toned down his threats to pull out of NAFTA – “the worst trade deal ever” – and seems to be edging toward a more modest renegotiation.  But one pledge the Administration seems eager to meet is ramping up deportations of undocumented immigrants from Mexico.  Trump is not immediately deporting the millions of “bad hombres,” as he initially promised, but he is steadily deporting thousands, including many who do not have criminal records in the U.S.  There are even stories of Trump supporters shocked at the deportation of law-abiding and tax-paying business owners.  Moreover, while he assured Dreamers – youths brought to the United States as children – to “rest easy,” there are reports of U.S. immigration detaining some of these working and tax-paying youth.

The threat of mass deportations involving millions still looms large, and Trump’s unpredictability to settle on a course of action is increasing pressure on Mexican officials to act fast to mitigate the impact of the returning immigrants.

  • At its consulates in the United States, the government is actively helping those at risk of being deported, providing legal services to ensure due process in locales as far-ranging as Indianapolis and New Orleans. Foreign Minister Luis Videgaray continues to confidently declare that Mexico will fight for immigrants and stand up to U.S. immigration authorities.  (He has also cast it as a human rights issue, spurring accusations of hypocrisy from critics concerned about Mexico’s treatment of Central American migrants.)
  • President Peña Nieto has enacted a reform to the General Law of Public Education facilitating Dreamers’ entry into Mexico’s education system, accrediting their U.S. education and helping those without proper Mexican documentation. Critics have called his public appearance with deportees opportunistic, a ploy to get much-needed positive media coverage, but the measures like those in education have real benefit for returnees.
  • Specific industries in Mexico are looking for specialized workers in the returning immigrants. The Mexican Association of Armored Vehicles (AMBA) estimated the availability of 50,000 thousand jobs for deportees in the areas of private security, armored car manufacturing, and transportation of valuables.  As violent crimes have risen again in Mexico, this industry is in need of workers.  Call centers are also actively recruiting.  Their only requisite is fluency in English; no other experience is necessary.

Many Mexicans’ perception of Trump as unpredictable and erratic tempers any optimism about bilateral relations even though Foreign Minister Videgaray seems to have established a viable dialogue with Trump’s son-in-law, Jared Kushner.  The return of the deported immigrants is an area in which the government is being given a second opportunity to show compassion for citizens.  The migrants left Mexico for concrete reasons, however, and some are questioning whether Peña Nieto’s administration will be able to address them.  Providing legal assistance to those at risk of deportation and facilitating education for Dreamers are important gestures, but they do not offer a viable long-term strategy.  The bigger picture is still suddenly having millions of Mexicans back in the country with no job prospects.  Trump’s delays on the border wall and mass deportations give the Mexican government time to come up with effective solutions, but such a massive disruption, especially coupled with the uncertainty over the future of NAFTA and the Mexican economy, is probably too much for any government to handle.

May 12, 2017

* Carlos Díaz Barriga is a CLALS Graduate Fellow.

U.S. Immigration Policy: Not Just Getting Rid of “Bad Hombres”

By Eric Hershberg, Dennis Stinchcomb, and Fulton Armstrong

ice-xcheckii-artsyarrestshot

An agent from U.S. Immigration and Customs Enforcement (ICE)./ Department of Homeland Security / Wikimedia / Creative Commons

The immigrant deportation policy that the Trump Administration announced last week is among the most aggressive in U.S. history and promises to create tensions between Washington and Latin America and disrupt communities across the United States.  Homeland Security (DHS) Secretary John Kelly has told agencies under his aegis to “use all authorities to the greatest extent practicable” to remove undocumented immigrants from the country.  President Trump called his new initiative a “military operation” – which an embarrassed Kelly denied during meetings in Mexico City intended to control damage from other Trump statements.  The White House said the measures will “take the shackles off” the enforcers, and U.S. media reported enforcement officers’ celebratory comments that they “can finally do their job.”  The Administration will also ask Congress to authorize a large expansion – another 15,000 – of enforcement positions.

  • The rationale repeatedly refers to deporting “criminals” – whom Trump calls “bad hombres” and “bad dudes” – but the new policy will exempt no classes or categories of “removal aliens,” including non-criminals. U.S. press already report roundups of individuals with no criminal records who are being expelled from the country within 72 hours.  Fear among immigrants is pervasive, and there are many reports (such as here and here) of families hunkering down in their homes, withdrawing children from school, and setting up contingency plans for protecting U.S. citizen kids should their undocumented parents be grabbed by the authorities and sent abroad.
  • The policy weakens protections from “expedited removal” that the Obama Administration put in place, which allowed immigrants caught after they had been in the country for 14 days or more to be released pending proceedings to determine their eligibility to remain in the United States. (Details remain murky but supposedly will be announced soon.)  Individuals facing expedited removal are not entitled to appear before a judge.
  • It increases efforts to press local police to help federal agencies find and deport undocumented immigrants, blurring the line between local and federal forces. Legal experts say this commingling of forces violates the Constitution, and many local police chiefs lament that it reduces the willingness of immigrant communities to help them fight crime.
  • It removes privacy protections for people who are not U.S. citizens or permanent residents, putting their personal information in the hands of vigilantes, blackmailers, and others who have no need to know it. Trump previously threatened to withhold federal assistance from “sanctuary cities” in the United States, which he accuses of causing “immeasurable harm to the American people and to the very fabric of our republic” because they are reluctant to implement his deportation policies.

Two new measures suggest a long political campaign against undocumented immigrants.  DHS will create an office – with the acronym VOICE – to collect information from victims of alleged crimes.  It will be funded with “any and all resources that are currently used to advocate on behalf of illegal aliens” (most of whom have never committed a crime).  The Administration will also “identify and quantify all sources of direct and indirect” assistance to Mexico, obviously to evaluate U.S. leverage against the Mexican Government if the Administration is not pleased with compliance with Washington’s wishes.

Deporting all 11 million undocumented immigrants estimated to be in the United States will be impossible, but the new measures will push unprecedented numbers of Mexicans and Central Americans back into societies that have no jobs and no security for them.  That burden and the loss of immigrants’ remittances will cause those countries incalculable harm.  The Administration’s rhetoric hammering on “criminal immigrants” is deceptive:  DHS admitted in 2014 that most of the “criminals” it deported were guilty only of their undocumented presence (31.3 percent) and traffic violations (15 percent), and it would be foolish to expect that the Trump government will be more judicious.  The insinuation that immigrants commit more crimes than do native-born citizens, moreover, has been debunked; they are incarcerated at a rate half that of native-born.  These polices may enjoy the support of Trump’s political base, but the attacks on the defenseless; subversion of traditional values such as the right to legal counsel and the right to privacy; coercion of local police and civilian authorities; and the deportation of countless friends and neighbors whose everyday contributions enrich community life in the United States will have a profound impact extending far beyond its immediate victims.

 February 27, 2017

Turning the Tide on Deportations?

By Dennis Stinchcomb

Photo courtesy of ICE

Photo courtesy of ICE

U.S. Customs and Immigration Enforcement (ICE) recently released statistics showing that deportations in fiscal year 2013 hit an all-time low since Obama took office in 2009, but the drop is apparently not yet a harbinger of a policy shift.  Removals fell slightly from a record high of 410,000 in 2012 to just under 370,000.  News of the first decline during Obama’s tenure comes as he has been under growing pressure from immigration advocates and some members of Congress to use his executive powers to bring removals to a halt.  But the slight decline can be attributed to several factors:

  • First, the administration has encouraged the use of “prosecutorial discretion,” which is the agency’s authority to enforce the law against a particular individual as it wishes, and has prioritized the deportation of violent criminal offenders and others deemed to be “national security threats.”  The removal of convicted criminals – a category that conflates those convicted of aggravated felonies and misdemeanor crimes – is more time- and resource-intensive, thus reducing the overall total of deportees.
  • A demographic shift in recent border crossers has contributed to the decline.  In fiscal year 2012, 71,527 of the recent border crossers removed by ICE were from countries other than Mexico (i.e., Central America).  In fiscal year 2013, this number rose by 27 percent to 90,461.  According to ICE, this triggered an increase in the use of ICE’s detention and removal resources because the U.S. Customs and Border Patrol, responsible for many deportations, is only able to return individuals to Mexico.  (In 2010, Guatemalans represented 9 percent (or 29,378) of deportees; in 2013, they made up 13 percent (or 47,769) of all removals. Much the same can be said for Honduras and El Salvador.)
  • The president’s Deferred Action for Childhood Arrivals (DACA) policy has also reduced deportation figures by granting reprieves to more than 450,000 of the “Dreamers.”

Though positive, the relatively small decrease does little to offset the Obama administration’s staggering deportation totals – 1.8 million since February 2009.  Nor does it signal an attempt to reverse course in light of the rapidly approaching 2 million mark.  The Obama administration is undoubtedly walking a political tightrope on the issue.  It is pressured by the right not to appear lax on enforcement, while many on the left want the president to sidestep a deadlocked Congress and loosen up on removals – a move Obama himself has characterized as executive overreach.  As the deportation rate remains steady, Obama risks eroding the support of Latinos, an increasingly powerful segment of the electorate.  So pervasive is the fear of deportation that, in a recent survey conducted by the Pew Research Center, a majority of Latinos said protection from deportation was more important than a pathway to citizenship.  This would suggest that lawmakers might eventually be open to allowing undocumented immigrants to attain legal status even without a chance to naturalize.  Some 205,000 U.S. citizen children lost a parent because of deportations between July 2010 and September 2012 alone, and a growing number of them face the prospect of having to accompany a deported parent back to Central America, potentially increasing the political urgency for a fix to the country’s broken immigration system.