Harvard Law Today: What do you think of the Biden Administration’s immigration agenda?
Phil Torrey: The Biden administration’s immigration agenda is more progressive than the prior two presidential administrations, but its rollout has been disappointing. President Biden can certainly claim success on several campaign promises concerning the rescission of widely unpopular executive actions taken by the Trump administration, including the Muslim ban. On the other hand, Biden’s pledges to improve the immigration adjudication system, increase the cap on refugee visas, and significantly improve the treatment of migrants at the southwest border has not yet been met. [After this interview was conducted, the Biden administration raised the cap on refugees from 15,000 to 62,500.]
I think President Biden wields a significant amount of political capital on the heels of a successful presidential campaign that in many ways was a referendum on Trump’s hardline immigration policies. For the first time in decades, polls show that a majority of Americans support policies that increase immigration into the United States as well as a pathway to citizenship for those already in the United States without status. It is that public support that Biden should leverage to swiftly implement his immigration agenda.
HLT: What have they done right so far?
Torrey: President Biden has successfully halted or reversed a significant number of executive actions taken by the prior administration. On his first day in office, Biden rescinded the heavily-litigated Muslim ban. He also rescinded the public charge rule, which would have barred the lawful admission of immigrants who receive certain public benefits. He also refused to implement the prior administration’s regulatory efforts to increase fees for immigration-related appeals, waivers, and other forms of immigration relief.
In addition to undoing some of the prior administration’s policies, Biden has extended benefits to some immigrant communities. For example, he has announced or renewed temporary protected status to noncitizens from Burma, Syria, and Venezuela. Biden also announced a plan to “preserve and fortify” Deferred Action for Childhood Arrivals (DACA), which was an Obama-era policy designed to prevent the deportation of the so-called Dreamers. Biden also issued new enforcement priority guidelines to rein in the seemingly indiscriminate enforcement actions by immigration officials under Trump. In short, some progress has been made but these measures — although important — fall short of what many hoped he could accomplish in his first 100 days in office.
HLT: What have they gotten wrong?
Torrey: In short, President Biden has simply not yet done enough. Trump’s policies were so radical that any pro-immigrant policy regardless of magnitude may seem significant. For that reason, I fear that the Trump administration’s extreme immigration policies have moved the goal posts. Incremental reform is a political reality, but without swift and comprehensive action the harm suffered by the immigrant community under the prior administration will continue. We have already seen border apprehensions and detention increase significantly October of last year. Many of those detained are children. The current administration has been unable to move those children out of detention facilities to either family members in the United States or foster care facilities. The Trump administration gutted much of the bureaucracy designed to facilitate those transfers, but it is now on Biden to act quickly to rectify the problem.
HLT: What should they do going forward?
Torrey: Although there is much that President Biden can accomplish short of legislation, truly impactful and lasting immigration reform will require congressional action. The President’s U.S. Citizenship Act of 2021 offers a pathway to citizenship for some of the 11 million individuals in the United States without immigration status. But many believe that the bill does not go far enough to undo the structural inequities that have plagued our immigration system. Like prior reform efforts, the bill attempts to strike a political balance by offering a pathway to citizenship along with an increase in certain enforcement efforts. In his recent address to Congress, President Biden attempted to sell the bill’s merits to both sides of the aisle when he remarked: “If you believe we need a secure border — pass it. If you believe in a pathway to citizenship — pass it.” The strategy was infamously unsuccessful under the Obama administration. A razor thin congressional majority for the president’s party foretells a precarious road for any immigration bill, but I’m hopeful that some positive reform can be achieved before the midterm elections.
HLT: What are the biggest challenges they face?
Torrey: Perhaps the biggest challenge that the Biden administration faces is simply getting immigration agencies fully staffed so that long-pending applications for immigration relief can be adjudicated. The Trump administration gutted many of the agencies responsible for overseas consular processing of visas and other immigration-related applications. More than 1.3 million cases are currently backlogged in the immigration court system. That’s more than a three-fold increase in the last ten years. Furthermore, it now takes an average of nearly three years for a case to be completed in immigration court. The delay in processing is simply unprecedented. But if President Biden can quickly re-staff critical positions and allow agencies the flexibility they once had to manage court dockets fairly and efficiently, then the backlog may begin to drop.