Will Biden Create More Humane Immigration Policies?

Cruel immigration policies were a hallmark of the Trump presidency. From the “Muslim ban” in his earliest days in office to family separation, the Trump administration made over 1,000 immigration policy changes, creating a largely hostile and unwelcoming reception for refugees and asylum seekers fleeing danger and economic hardship and instilling fear in immigrants residing inside the United States. His efforts lasted until his final days in office, when the so-called “Death to Asylum” rule slashing eligibility, which was set to go into effect on January 11, was blocked in court.

The Biden-Harris administration immediately began to undo many of these policies. On his first day in office, President Biden sent a broad immigration bill to Congress that included an expedited path to citizenship for the undocumented population, working to clear green card backlogs, and addressing the root causes of migration. He rescinded the “Muslim ban,” implemented a 100-day pause on deportations (which was blocked by a federal judge), preserved and fortified Deferred Action for Childhood Arrivals, and created an Interagency Task Force on the Reunification of Families.

Biden also ended the Migrant Protection Protocols (MPP), the Trump-era “Remain in Mexico” policy requiring people applying for asylum at the southern border to stay in Mexico instead of being admitted to the U.S. while their cases were being processed. This meant that tens of thousands of people had to endure prolonged waits in dangerous and unhealthy conditions along the Mexican border. “President Trump created a humanitarian disaster with this policy that has resulted in well over a thousand asylum seekers being assaulted, raped, kidnapped, or murdered while awaiting their asylum hearing,” said Bridget Crawford, legal director at Immigration Equality, an LGBTQ and HIV-positive immigrant rights organization. “Now President Biden is having to quickly process these individuals at the border so they can pursue their asylum claims from the safety of the United States, as our law requires. That said, there doesn’t seem to be adequate infrastructure in place to process these numbers. Again, the situation was not of Biden’s making, but it is his responsibility now to prevent any more harm to asylum seekers waiting in Mexico.”

Crawford also points out that some people were wrongfully denied relief under the MPP program. “These people no longer have ‘active’ cases, so they are not even being processed by the administration, but many are living in Mexico or have been returned back to their countries where they face persecution. Quite literally, some of these people have been handed a death sentence.”

Although immigration officials are slowly processing the MPP cases, families and adults are still being expelled under Title 42, a Trump-era policy that the Biden administration has kept in place. Title 42, which effectively seals the border to migrants, was enacted last year using the COVID-19 pandemic as a pretext, although public health experts have spoken out against the. measure, arguing that is has no public health rationale. Although it’s a Center for Disease Control and Prevention order, Biden has the authority to rescind it.

“The immigrant advocate community is glad that the Biden-Harris administration is recognizing how horrific MPP is and is rolling back the policy,” said Héctor Ruiz, an attorney and director of removal defense at the Santa Fe Dreamers Project, which provides free legal services to immigrants and refugees. “We are happy that there is a process in place but have real concern about the pace and the fact that there are so many vulnerable populations left out of the MPP qualifications. But the biggest hurdle is the continued implementation of Title 42. It’s unnecessary, and instead there could be mechanisms put in place to curtail the spread of COVID in a way that recognizes people’s dignity and doesn’t violate international laws on the rights of refugees.”

But the northern countries in Central America remain plagued by violence and poverty, and they suffered devastating hurricanes last year as well as the global pandemic, so people continue to flee. The Biden administration has made an exception to Title 42 only to allow the processing of unaccompanied children. In desperation, some families arriving at the border are sending their children alone, because of the expectation that if they went as a family, they would be expelled. “We think it is possible to protect public health and process asylum seekers and refugees in an orderly and humane way,” said Daniella Burgi-Palomino, co-director of the Latin America Working Group, a U.S.-based human rights organization. “We need to look at alternatives to detention and limit our use of facilities for children. The Biden administration should work in collaboration with the NGOs that are at the border.”

Additionally, Real Needs, Not Fictitious Crises Account for the Situation at US-Mexico Border, a report from the Center for Migration Studies, a think tank, argues that the increases in recent weeks are “a response to compounding pressures, most prominently the previous administration’s evisceration of US asylum and anti-trafficking policies and procedures, and the failure to address the conditions that are displacing residents of the Northern Triangle states of Central America (El Salvador, Guatemala, and Honduras), as well as Venezuela, Cuba, Haiti, and other countries.”

The Trump administration profoundly changed asylum law by excluding whole categories of people from protection, including victims of domestic violence and gang persecution. “We hope to see positive regulations for individuals fleeing gender- and gang-based violence to be issued in the coming months,” Lindsay M. Harris, associate professor of law and director of the Immigration & Human Rights Clinic at University of the District of Columbia’s David A. Clarke School of Law. “The administration has been working with advocates and listening to input, so we definitely hope for positive movement in this regard. Clarity and consistency in adjudication for individuals fleeing this type of harm has been a long time coming. An important piece in all of this is moving away from immigration detention and towards immigrant representation. The studies clearly show that where families are represented by counsel under a case management program, they show up in court over 98 percent of the time.”

In early April, there were reports that the administration was considering an overhaul of the asylum system at the southern border that would include moving some asylum cases from the Department of Justice to the Department of Homeland Security to speed up the processing of cases. “If you look at the sheer numbers of the backlog of asylum cases, it makes a lot of sense,” said Morgan Weibel, executive director at the San Francisco Bay Area Tahirih Justice Center, a direct services and advocacy organization for immigrant women and girls fleeing violence. “And for someone who has experienced gender-based violence, having their cases heard by an asylum officer with trauma-informed training is probably less traumatic than a judge. But if the end goal is just speed, we don't want the quality of the processing to go down. It's a balancing act. We don't want people to languish for years waiting for their asylum cases to be heard, but we don't want the process to be so rushed that they don't have time to get a lawyer.”

The Trump administration also made alterations and limits to the rules on U visas, which are granted to immigrants who cooperate with criminal investigations. Under Trump, “there were survivors on five-year waiting lists to have their U visas processed being deported before their cases were even heard,” said Cecelia Friedman Levin, senior policy counsel at ASISTA Immigration Assistance, a network of attorneys and advocates for immigrant survivors of gender-based violence, and co-chair of the Alliance for Immigrant Survivors with the Tahirih Justice Center. “People were having their U visas denied for leaving blank spaces on the forms. All that chips away at the ability to access protections and processes that have been put in place by bipartisan legislation. Not only do we need to roll back what happened during the Trump administration, but we need policies that reflect survivors’ lived experiences."

In early February, the Biden administration issued a memorandum calling for advancing the rights of LGBTQ people worldwide. While advocates applaud this sentiment, they also want the administration to look inward. “It’s hypocritical not to ensure rights here as well,” said Emilio Vicente, advocacy and communication director at Familia: Trans Queer Liberation Movement, an advocacy organization calling for the release of transgender people in U.S. Immigration and Customs Enforcement (ICE) custody. “Trans people are often put in solitary confinement for ‘protection,’ leading to psychological issues, and are still misgendered while there and don’t have access to their medication. This administration has the power to release trans people from ICE custody and then should provide them with resources so they can avoid exploitation and abuse. If they are serious about promoting LGBTQ rights abroad, they should start at home.”

Biden’s immigration bill doesn’t adequately address problems with detention, which advocates point to as a missed opportunity. “If the Biden administration is going to send down a marker [with the proposed immigration bill], start with ending detention altogether,” said Ava Benach, an immigration lawyer specializing in detained asylum seekers who has taken a lead role in representing transgender asylum seekers. “The law says vulnerable people should not be put in detention, and we have never found a safe way to detain trans people. Transgender asylum seekers are a group of people who have been shut out of every part of society, and they have come here seeking safety only to face a world of hostility in detention. It has to stop.”

Advocates have high expectation for the Biden administration, based on campaign promises, and hope that it will do much more than merely rolling back Trump-era policies. “It's really important that we don't just undo the damage caused by the Trump administration, but go beyond that and not go back to what happened under the Obama administration when deportations increased,” said Burgi-Palomino. “We will want to see forward-looking policies and a reform to the immigration system and move past political fear. This administration needs to think about what would a humane reception that welcomes everyone with dignity could look like at our border.”