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The challenges Biden will face on immigration reform

President-elect Joe Biden is planning to act quickly after taking office to improve conditions at the southern border for migrants seeking asylum in the United States, part of a broader strategy aimed at reversing Trump administration policies that separated families and led to a spike in detentions.

Biden is expected to sign executive orders after his inauguration that would end President Donald Trump’s ban on travel from certain majority-Muslim countries, and protect the Deferred Action for Childhood Arrivals program, known as DACA, which shields young undocumented immigrants from deportation.

The steps would represent a clear break from Trump, and could have an immediate impact on the way migrants are treated at the U.S.-Mexico border. They would also signal a departure from Trump’s anti-immigrant platform, which has sometimes included racist and xenophobic rhetoric that critics point to as helping to fuel a rise in hate crimes and tension within immigrant communities.

But immigration reform advocates, former immigration officials, attorneys and others said the planned changes won’t lead to long-term improvements unless Biden overhauls the nation’s broken detention and immigration court system, which is currently overwhelmed with a backlog of more than 1 million pending asylum cases built up over multiple administrations.

Advocacy groups and unions are also pressuring Biden to push for a comprehensive immigration reform bill. Biden told NBC News after the election that in his first 100 days in office he would send a bill to the Senate that would provide a pathway to citizenship for the more than 11 million undocumented immigrants living in the country.

But Biden’s ability to enact sweeping legislation — whether on immigration, climate change or anything else — will depend on the balance of power in Congress. Republicans can block much of his agenda if they retain their Senate majority, which will come down to two runoff elections in Georgia in early January.

With control of the Senate still up in the air, advocates are urging the Biden transition team to take a serious look at other measures beyond an initial flurry of executive orders that could have a long-term impact and might not require Congress to act — starting with substantive changes to the ways asylum cases are processed through the immigration court system.

Signing executive orders that reverse some of Trump’s policies will make it easier for migrants to apply for asylum, said Denise Gilman, the director of the Immigration Clinic at the University of Texas at Austin School of Law. But without longer-term fixes, many asylum seekers will still wind up in detention or become entangled in court proceedings that often take years to resolve, she said.

“[Biden] can make some very positive impacts immediately by signing executive orders. But can he completely re-envision the system overnight? I don’t think so,” Gilman said. “That’s going to take some time.”

“I don’t think anyone is walking away from a need for comprehensive immigration reform,” said Maria Echaveste, who worked on immigration policy as White House deputy chief of staff to former President Bill Clinton. But in the face of likely resistance from Republicans, under Biden there is an “opportunity to do [other reforms] piece by piece.”

Migrants in the “Remain in Mexico” program walk on the Paso del Norte International Bridge to reschedule their immigration hearings amid the coronavirus disease (COVID-19) outbreak in Ciudad Juarez, Chihuahua, Mexico, April 20, 2020. REUTERS/Paul Ratje

Among changes that advocates said could jump-start the process is ending Trump’s “Remain in Mexico” policy, formerly called the “Migrant Protections Protocols.” The policy requires migrants seeking asylum in the U.S. to wait in Mexico while their cases are processed, regardless of what country they’re coming from. Critics argue the rule exposes migrants to violence, and a legal challenge is now before the Supreme Court. Biden has signaled plans to end the program, which Trump established by executive order.

Biden has also pledged to create a task force to work on reuniting the more than 500 families who remain separated as a result of the “zero-tolerance” policy the Trump administration put in place to prosecute immigrants caught entering the country illegally.

“The Biden administration has to rebuild the structure to process asylum seekers in a human and orderly way, because it’s nonexistent at this point,” said Fernando Garcia, executive director of the advocacy group Border Network for Human Rights. Under Trump, “most of the resources were used to build a wall and deport immigrants.”

Shifting priorities for arrests and detention

One change eagerly sought by some immigration advocates is a return to an Obama-era policy prioritizing the deportation of undocumented immigrants with criminal records and those deemed a national security or public safety threat.

The approach, adopted after former President Barack Obama took office in 2009, was a shift away from the previous administration’s focus on immigration enforcement in the interior of the country through workplace raids and other tactics. Obama’s policy was formalized in a guidance issued by the Department of Homeland Security in 2014. The agency also began to prioritize the deportation of people who had recently entered the country illegally.

As a result, while the number of deportations of people who did not pose a security threat or didn’t have a serious criminal background declined, the percentage of undocumented immigrants removed from the interior of the country who had been convicted of serious crimes rose from 51 percent in 2009 to 94 percent during Obama’s last year as president in 2016, according to DHS data included in an exit memo released by then-Secretary Jeh Johnson two weeks before Trump took office.

Obama set a record for those kinds of removals, leading critics on the left to label him the “deporter-in-chief.” But overall 5.2 million people were deported under Obama, compared to 10.3 million under former President George W. Bush and 12.2 million under former President Bill Clinton, according to a study by the Migration Policy Institute.

READ MORE: Under Trump, higher immigration bonds mean longer family separations

Trump abandoned Obama’s approach by signing executive orders in 2017 and 2018 that gave immigration enforcement officials greater leeway to arrest and deport undocumented immigrants who did not have criminal records. The changes led to a 30 percent increase in fiscal year 2017 in the number of arrests made by Immigration and Customs Enforcement officers in the interior of the country, a Pew Research Center study found. Interior arrests increased again in fiscal 2018 but fell in fiscal 2019 as more enforcement officers were called to work on apprehensions along the border, which ICE said compromised their ability to conduct enforcement elsewhere.

Arrests along the southern border have increased during Trump’s presidency as well, driven by the “zero-tolerance” policy that led to family separations and other measures aimed at cracking down on illegal immigration.

According to the Pew study, the Trump administration apprehended 851,508 migrants at the U.S.-Mexico border in fiscal year 2019 alone — the highest number in more than a decade and more than double that of the previous year.

President Donald Trump arrives to participate in a Thanksgiving video teleconference with members of the military forces at the White House in Washington, on November 26, 2020. Photo by REUTERS/Erin Scott

Once Biden takes office, “I would expect an immediate shift back to the Obama strategy and especially the 2014” guidelines that focused on deporting undocumented immigrants with serious criminal records, said John Sandweg, who served as acting director of ICE under Obama.

Focusing enforcement efforts on people with serious criminal records, instead of law-abiding immigrants who have lived in the country for years, would yield immediate results, said Alfredo Lozano, an immigration attorney in San Antonio.

“Why would you not want to first focus on those persons with a very bad criminal record, versus a 42-year-old mother that has been here for 15 years and has three children?” Lozano asked.

Many of Biden’s key immigration policy changes will be carried out by Alejandro Mayorkas, his nominee to lead the Department of Homeland Security, which includes ICE and U.S. Customs and Border Protection. Mayorkas, a former federal prosecutor, served as DHS deputy secretary under Obama. He would also make history as the first Latino to lead the department.

Mayorkas is well-known among senior immigration officials and has the experience to lead the agency, said Sandweg, a former colleague who praised the selection. But “there are certainly going to be some advocates who probably get frustrated that the department isn’t moving far enough or fast enough — the ‘Abolish ICE’ crowd,” he said.

“[Mayorkas’] real background is in law enforcement. He brings a prosecutor’s sensibility,” Sandweg added. “He’s not coming in saying, ‘Okay, we need to stop deportations.’ Ali’s coming in saying, ‘What’s the best policy?’”

But instituting a culture change at DHS after four years of Trump could take time. Trump was endorsed by the National Immigration and Customs Enforcement Council, the union that represents ICE officers, in 2016 and again this year. The union representing Border Patrol agents also endorsed Trump in both elections.

In 2010, the ICE union cast a “vote of no confidence” in then-director John Morton and another senior official, claiming the agency under Obama had shifted its focus from law enforcement to “campaigning for programs and policies related to amnesty” for immigrants in the U.S. illegally.

There is concern in the immigrant rights community that Mayorkas and other political appointees brought in by Biden could face similar resistance from rank-and-file ICE and border patrol agents who supported Trump and could remain loyal to him after he leaves office. “This is very real resistance” that won’t disappear once Biden becomes president, Gilman said.

Overhauling immigration courts

Immigration reformers are also closely watching who Biden nominates as attorney general. While Mayorkas will play a leading role in setting policy around the apprehension and detention of undocumented immigrants, any changes to the immigration court system would fall under the purview of the Department of Justice.

Federal immigration courts are overseen by the Executive Office for Immigration Review, an agency within the Justice Department. Immigration reform advocates have long called for an independent court system that operates outside of the Justice Department, in order to shield immigration judges from carrying out policies created by political appointees who work in the Executive Branch and report to the president. But that would require legislative action from Congress, and the prospect of establishing a new court system under Biden would likely face significant opposition from Republicans in Washington.

Under Trump, judges have faced tremendous pressure to “make sure that we work lock and step with the law enforcement priorities of the administration,” said Ashley Tabaddor, a federal immigration judge.

A U.S. Border Patrol Agent closes one section of the border fence between U.S.-Mexico in El Paso, Texas, U.S May 15, 2019. Photo by Jose Luis Gonzalez/Reuters

A U.S. Border Patrol Agent closes one section of the border fence between U.S.-Mexico in El Paso, Texas, U.S May 15, 2019. Photo by Jose Luis Gonzalez/Reuters

Immigration reform advocates said one of their top priorities under Biden will be reversing the executive order Trump signed in his first year in office that created a metric-based system for evaluating the performance of immigration judges.

The policy, which took effect in 2018 under then-Attorney General Jeff Sessions, required judges to complete 700 cases a year. In addition to that quota, the new system required judges to complete 95 percent of their cases at the first trial hearing, said Tabaddor, who agreed to an interview in her official capacity as president of the National Association of Immigration Judges, the union that represents immigration judges.

The administration argued that the changes were intended to address the backlog in pending asylum cases. Critics said the policy was put in place to help implement Trump and Sessions’ hardline views on illegal immigration.

“They used the backlog as a pretext to put in these quotas and deadlines. It hasn’t gotten us anywhere,” Tabaddor said.

The number of pending asylum cases has doubled under Trump, from roughly 600,000 when he took office to 1.2 million in 2020. The average number of days that cases have been waiting in court has also increased under Trump, from 691 days in fiscal year 2017 to 811 days in fiscal year 2020, according to TRAC Immigration, a database run by Syracuse University.

“All of [Trump’s] efforts to deter and discourage families from coming to the U.S. to seek asylum, they don’t work. It’s demonstrably shown that it just doesn’t work,” said Gilman, of the University of Texas at Austin School of Law.

Biden could use his executive authority to unwind Trump’s quota system, immigration attorneys said. Other policy changes would require the Justice Department to formally vacate, or rescind, decisions made by Sessions, who carried out much of Trump’s early immigration agenda before he was fired by the president in late 2018.

As a candidate, Biden promised to hire more immigration court judges to reduce the backlog of asylum cases. But Tabaddor noted the number of immigration judges under Trump increased from roughly 280 when he took office to more than 500 today, and yet the court system is even more overwhelmed than it was at the start of his presidency. The growing backlog under Trump is widely attributed to the rise in apprehensions at the border, especially in late 2018 and 2019, when several hundred thousand additional arrests were made in response to a surge in migration from Central America.

“Until you stop the bleeding you can keep adding more and more bandaids” but it won’t solve the problem, she said. Right now, the court system is suffering from “a massive hemorrhage.”

The funding dilemma

Biden could also face challenges securing funding from Congress for his immigration agenda.

Between two-thirds and three-quarters of the DHS’ annual budget is funded through discretionary spending appropriated by Congress. The rest consists of mandatory spending and other revenue streams, according to a report on the agency’s most recent budget, released in January by the Congressional Research Service.

But the vast majority of the discretionary spending awarded to DHS each year goes to paying for employee salaries and operational expenses — funding that can’t easily be moved around to pay for a new program or policy priority.

DACA recipients and their supporters celebrate outside the U.S. Supreme Court after the court ruled in a 5-4 vote that President Donald Trump’s 2017 move to rescind the Deferred Action for Childhood Arrivals (DACA) program was unlawful, in Washington, on June 18, 2020. REUTERS/Jonathan Ernst

In fiscal year 2020, for example, roughly 85 percent of CBP’s $14.9 billion pot of discretionary spending went to salaries and expenses. There is even less wiggle room at ICE, where nearly all of the agency’s $8 billion discretionary spending in fiscal year 2020 went to staff salaries and other expenses associated with running the agency.

Mayorkas may have some flexibility, especially around funding for enforcement and deportation operations, said Sandweg, the former acting director of ICE.

“There’s probably some things that can be moved around a bit. But the question is, where are you pulling from? You can’t just unilaterally lay off or furlough or fire ICE agents. They have civil service and statutory protections,” said Sandweg, who held several senior roles at DHS under Obama, including acting general counsel.

The current DHS budget illustrates the obstacles that lay ahead for Biden and his team.

The appropriations bill included detailed provisions dictating how DHS could use federal funding to implement Trump’s immigration priorities. It included $1.37 billion in border wall funding and, as part of an agreement with Democrats, allowed Trump to redirect defense spending to pay for the project. The bill contained other less high-profile provisions as well, such as one blocking federal funds from being used to pay for pedestrian fencing in historic cemeteries in some areas along the border.

Biden has said he plans to stop new border wall construction, a move that he could likely do on his own without approval from Congress by revoking the national emergency declaration Trump issued in order to free up defense spending for the border.

But Biden will be constrained by Congress on most matters related to government spending on immigration, regardless of which party controls the Senate come January. “Congress has the power of the purse. Whenever they appropriate money, they tell you exactly how to spend it to a certain level of detail,” Sandweg said.

Despite all the obstacles Biden faces on immigration, advocates said they remain optimistic. Simply ending the “Remain in Mexico” policy, protecting the DACA program and putting more effort into reunifying separated families would be a great start, said Garcia, of the Border Network for Human Rights.

But Biden must go further, he said, by making long-term improvements to the asylum process, while also maintaining momentum for a comprehensive immigration reform bill. Anything less would jeopardize Biden and the Democratic Party’s relationship with the country’s rising Latino electorate, he added.

“Biden owes Latinos. They are expecting Biden to do something immediately,” Garcia said. He added, “Latinos are recognizing their own political power. If the Biden administration fails to deliver, I think Democrats are going to be in trouble.”

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