Will Biden Dismantle Trump’s Immigration Police State?

As Biden confronts Trump’s immigration legacy, the long shadow of the Obama era creeps in.

A girl looks through the border fence in Ciudad Juarez, Chihuahua state, Mexico, on January 31, 2020, as U.S. Border Patrol agents conduct a training exercise at the Anapra area, in Sunland Park, New Mexico, US. (Photo by Herika Martinez / AFP) (Photo by HERIKA MARTINEZ/AFP via Getty Images)
A girl looks through the border fence into New Mexico as U.S. Border Patrol agents conduct a training exercise in Ciudad Juarez, Mexico, on January 31, 2020. Photo: Herika Martinez/AFP/Getty Images

The pace and aggression were staggering. By the end of his first week in office, Donald Trump had already signed orders banning travelers from multiple Muslim-majority countries and tossed out rules establishing who the nation’s sprawling immigration enforcement apparatus should prioritize for arrest. Hundreds more executive actions would follow in the years to come.

As part of a nativist effort to remake the U.S. relationship to immigration through an “unshackling” of the Department of Homeland Security, armed federal agents took thousands of immigrant children from their parents to terrify others from making the journey north. Families were turned out into some of the border’s most dangerous cities by the tens of thousands. Mothers and fathers who dutifully checked-in at Immigration and Customs Enforcement offices for years walked into those same spaces only to find themselves handcuffed and deported.

And those were only the most infamous of the administration’s initiatives. Asylum and refugee admissions came under withering attack through waves of critical but under-the-radar regulations and policy changes.

Now, it seems, that era is coming to an end, raising a critical question: How much of what Trump built will remain?

Last week, sources close to President-elect Joe Biden told CBS News that upon entering office, the incoming administration will swiftly and fully restore the Obama-era Deferred Action for Childhood Arrivals program, better known as DACA, rescind Trump’s Muslim ban, and “look to implement a 100-day freeze on deportations while his administration issues guidance narrowing who can be arrested by immigration agents.” Among other key initiatives on the agenda, sources said a Biden White House will also end the punishing Migrant Protections Protocol program, otherwise known as “Remain in Mexico,” create a task force for locating children separated by DHS, and raise the nation’s cap on refugees — which fell to a record low of 15,000 under Trump — to 125,000.

The ambitious vows, which tracked with promises made on the campaign trail, came one day after the Migration Policy Institute, a nonpartisan think tank, published a policy brief examining the incoming administration’s immigration plans. Pointing to more than 400 executive orders as evidence, MPI reported that the outgoing administration had “methodically dismantled and reconstructed” the immigration system “based on a worldview of immigration as a security and economic threat to Americans.”

Unfortunately for immigrant rights advocates, MPI noted: “The grafting of a dizzying array of Trump executive actions, policy guidance, and regulatory changes — some interlocking and thus difficult to unwind — atop a long-antiquated immigration system presents complex hurdles for an incoming administration that has vowed to roll back key Trump changes and advance bold reforms.”

Some of the challenges would be logistical. Biden’s refugee resettlement plan, for example, has to contend with the fact that after nearly four years of the Trump administration strangling refugee admissions, the capacity of the existing nonprofit infrastructure to take in refugees has been severely diminished.

In this Tuesday, Nov. 5, 2019, photo, a migrant walks through a refugee camp in Matamoros, Mexico. The camp is an outgrowth of the Trump administration’s “Remain in Mexico” program, in which more than 55,000 migrants seeking entry into the U.S. have been ordered to pursue their cases outside its borders. (AP Photo/Eric Gay)

A migrant walks through a refugee camp in Matamoros, Mexico, on Nov. 5, 2019. The camp is an outgrowth of the Trump administration’s “Remain in Mexico” program.

Photo: Eric Gay/AP

Similarly, while the incoming administration could swiftly end the “Remain in Mexico” program, which forced more than 67,000 people to wait out their asylum cases on the southern side of the border — in some instances in dangerous and squalid camps — Biden has not said whether he would allow individuals in the program into the U.S. As of September, roughly 24,500 people remained in the program, while fewer than 1 percent have been granted asylum. The challenge is not that the remaining cases necessarily reflect an unmanageable burden on the system; it’s that the 24,500 figure represents human beings whose needs and rights will require careful planning, attention, and resources if the Biden administration sincerely intends to distinguish itself from its predecessor.

“Will immigration actually be their key priority? We know it’s not going to be.”

In a phone call with reporters last week, MPI’s analysts and experts stressed that much of what a Biden White House could accomplish hinges on political will and timing, neither of which look particularly promising. Hanging over the procedural and logistical challenges is the overarching question of whether the incoming Biden administration can realistically accomplish the goals it has set for its first 100 days, said Sarah Pierce, an MPI policy analyst.

“Will immigration actually be their key priority?” Pierce asked, before answering her own question: “We know it’s not going to be.” Pierce pointed to speeches Biden and Vice President-elect Kamala Harris gave after their electoral victory. “They mentioned a lot of issues, but they didn’t mention immigration and during the Trump administration, immigration was the top policy priority,” she said. “They poured everything they had into enacting their agenda. I think under a Biden administration, we’re about to see the pace of immigration changes slow down significantly.”

Noting Biden’s pledge to deliver a bill on comprehensive immigration reform within his first 100 days, Muzaffar Chishti, an MPI senior fellow and director, said this was the third moment in the last 20 years when the public has witnessed the prospect of a “big move on immigration reform” run up against national political realities outside of the immigration sphere. “One can expect that there will be some movement towards immigration reform legislation,” Chishti said. “But we know that’s an uphill task.”

Chishti described how “mega-events” over the past two decades have repeatedly foiled efforts at immigration reform. For George W. Bush, who Chishti described as “probably the most pro-immigrant Republican president in recent history,” it was the September 11 attacks, “one of the biggest mega-events” of all time. Then there was Barack Obama, who took office in 2009. “He was confronted with the Great Recession, and there was no possibility of any immigration reform legislation in the first term,” Chishti said. “Unfortunately, similarly, when this administration takes effect with a lot of hope that there will be significant change on immigration, the first thing that the president-elect will have to deal with is the pandemic.”

On the border, the coronavirus has made a historic impact on the nature of immigration enforcement. Earlier this year, Stephen Miller, the president’s ultra-hardline immigration adviser, successfully overcame the concerns of public health officials and pushed the Centers for Disease Control and Prevention to issue a rule that would allow Border Patrol agents to rapidly remove immigrants at the border without due process. From March through September, border authorities used the rule to expel more than 200,000 migrants, including 8,800 unaccompanied children.

“The incoming administration has not said what it will do about that,” Doris Meissner, an MPI senior fellow and director of the U.S. Immigration Policy Program, as well as a former commissioner of the now-defunct U.S. Immigration and Naturalization Service, told reporters. “It’s highly likely that Covid conditions will continue to be in an emergency state, so it is possible that we would see a new administration maintain the CDC guidance at the border, at least for some period of time,” she said, adding that an extension of the CDC rule could give Biden, “some time for putting the changes into place that allow for a more functional system for granting asylum.”

Away from the border, Biden’s proposed deportation moratorium has been met with a combination of cautious optimism from immigrant rights advocates and questions as to how, exactly, it would work, particularly in the case of individuals currently being held in immigration detention. The answers to those questions remain unclear.

In other matters on the interior enforcement front, Biden has signaled that his administration would return to priorities set in the later years of the Obama administration that directed ICE personnel to focus their arrest activity on so-called criminal aliens and public safety threats. ICE’s union and other right-wing commentators howled that efforts to rein in the agency handcuffed deportation officers in the field, helping to pave the way for the “unshackling” rhetoric that defined the Trump era. Immigrant rights advocates, meanwhile, argued that the priorities failed in their stated goals. A New York Times analysis of government data supported those claims, and recent evidence has surfaced giving them additional weight.

Earlier this year, Netflix released a documentary series titled, “Immigration Nation,” in which a supervisory ICE officer addressed the kind of enforcement priorities that Biden could seek to reintroduce. “Even under the Obama administration, when we had the priorities, that really didn’t limit anything,” the field office director, identified as Bob, told the film crew. “What people didn’t realize, there was this little, I call it the fine print at the bottom, and it said, you can arrest anybody you basically want to if you think they present a threat to the United States or could possibly present a threat — and we did! — it’s so easy to say. … Doesn’t matter what for. There’s millions of people to choose from.”

About fifty pro-immigration reform demonstrators gathered for a rally outside the United States Supreme Court January 15, 2016 in Washington, DC. Organized by immigraiton advocacy group CASA, the demonstrators called on the Supreme Court to take up and overrule a lower court's ruling against President Barack Obama's 2014 immigration executive actions, including the Deferred Action for Parental Accountability (DAPA) program and expanded Deferred Action for Childhood Arrivals (DACA) guidelines. (Photo by Chip Somodevilla/Getty Images)

About fifty pro-immigration reform demonstrators gathered for a rally outside the United States Supreme Court January 15, 2016 in Washington, DC. Demonstrators called on the Supreme Court to take up and overrule a lower court’s ruling against President Barack Obama’s 2014 immigration executive actions.

Photo: Chip Somodevilla/Getty Images

Avoiding Obama’s Mistakes

A return to some version of the Obama era is precisely what Biden’s critics on the left are hoping to avoid.

For Roberto Lopez, a community organizer with the Texas Civil Rights Project in the Rio Grande Valley of South Texas, 2014 was a year of political awakening. It was the year that his community made news around the world, with thousands of unaccompanied children from Central America showing up to the border seeking asylum.

“That is when we started to really see just the images of children in the cages in the Central Processing Center here in South Texas,” Lopez told The Intercept. “That is sort of the lens that I view a Biden administration from.”


Obama’s Deportation Policy Was Even Worse Than We Thought

Lopez is not alone. Among many immigrant rights advocates, the Obama-Biden administration is remembered for building a network of massive, for-profit detention centers for immigrant families on the border; continuing the unprecedented expansion of Customs and Border Protection, even as the agency became the most corrupt actor in federal law enforcement; and carrying out more deportations than any administration in the history of the country, including Trump’s, with more than 3 million people removed the last time Biden was in the White House.

In addition to being an epicenter of family separations, the Rio Grande Valley has been an ongoing target for border wall expansion under the current administration, leading to heated legal battles between the federal government and private landowners that continue to this day. Biden has said that his administration would not build “one more inch” of new wall along the border — though he has not said what he would do about the sections of wall Trump has rammed through in places like southern Arizona, which has seen extensive environmental and cultural damage as a result of the president’s efforts — opting instead for a high-tech “virtual wall.

Here, too, Lopez said there is cause for concern. In years past, virtual wall talk has largely translated into the federal government awarding lucrative contracts to military, security, and intelligence firms to install surveillance equipment in border communities.

“For a while now, we’ve been fighting the physical border wall — the concrete, the bollards, the rusted steel kind of looking thing — but there are many types of walls that exist, which I think continue to paint the borderlands as this is sort of second-class state without the same constitutional protections as the rest of the country,” Lopez said. The technological border security solutions historically favored by Biden and others in the Democratic Party also pose a threat to human and civil rights along the border, Lopez added. “That will still lead to the same violence against immigrants,” he said. “It will still lead to individuals suffering through exhaustion and entering through hazardous terrains. It will still lead to myself and the millions of people who call the border home losing their privacy.”

Erika Andiola is also concerned about the direction the incoming administration might take. In 2013, Andiola’s mother and brother were arrested by ICE officers in Phoenix. Andiola was 25 years old and already a rising force in the immigrant rights community. The arrests made national news, and Andiola’s mother and brother were eventually released.

Andiola has been fighting for radical changes to the nation’s immigration system ever since, serving as a staffer on Sen. Bernie Sanders’s 2016 presidential campaign and now working as chief advocacy officer for the Texas-based nonprofit RAICES Action.

In Andiola’s view, one of the core advocacy mistakes of the Obama era was to throw enormous time and energy into a legislative process that wedded immigration reform to the continued expansion of the immigration police state.

In her view, one of the core advocacy mistakes of the Obama era was to throw enormous time and energy into a legislative process — specifically the attempted passage of the DREAM Act, which would provide protections to young immigrants — that wedded immigration reform to the continued expansion of the immigration police state. While the agencies of DHS grew and grew, the reform never came. Instead, a hypernationalist whose top immigration policy adviser endorsed white supremacist views took control of the federal government’s increasingly militarized Homeland Security agencies, ushering in four years of terror for immigrant communities.

Erika Andiola, who recently resigned her position in the congressional office of Rep. Rep. Kyrsten Sinema (D-AZ), speaks at a press conference held by the Dream Action Coalition on immigration reform December 4, 2013 in Washington, DC. Andiola's mother, Maria Andiola, faces deportation proceedings being conducted by Immigration and Customs Enforcement. (Photo by Win McNamee/Getty Images)

Erika Andiola, who recently resigned her position in the congressional office of Rep. Rep. Kyrsten Sinema (D-AZ), speaks at a press conference held by the Dream Action Coalition on immigration reform December 4, 2013 in Washington, DC.

Photo: Win McNamee/Getty Images

“I think the biggest mistake was really prioritizing enforcement,” Andiola told The Intercept. “For people who don’t understand immigration, it literally is detaining and deporting immigrants at a record number and creating programs and creating detention centers to be able to look tough on immigration for Republicans to come around.”

While she welcomed Biden’s focus on policy targets that go beyond passing sweeping legislation, such as the deportation moratorium and reversing Trump’s executive orders, Andiola expressed concern with the advisers the incoming president has surrounded himself with.

In September, news broke that Biden had added the former head of Obama’s White House Domestic Policy Council, Cecilia Muñoz, to his transition team as a senior adviser. While some immigration experts defended the decision and pointed to the Obama administration’s evolution on immigration policy, Pablo Manríquez, a former Democratic National Committee spokesperson, told The Hill: “Cecilia Muñoz is the one person besides Stephen Miller who has spent years of her public service dedicated to the smooth execution of mass deportation policy at the West Wing level.”

A polarizing figure in the immigrant rights community, Muñoz, who did not respond to a request for comment for this story, was the face of immigration policy under the former president and staunchly defended his most controversial efforts, even as DHS and local law enforcement collaborations fueled an extraordinary 409,849 deportations in a single year. When asked about the “collateral damage” incurred by the administration’s crackdown in a 2011 Frontline investigation, Muñoz told journalist Maria Hinojosa: “At the end of the day, when you have immigration law that’s broken and you have a community of 10 million, 11 million people living and working in the United States illegally, some of these things are going to happen. Even if the law is executed with perfection, there will be parents separated from their children.”

Muñoz then made an argument that would become commonplace among immigration officials under Trump: that suffering resulting from enforcement of immigration laws should be addressed by changing those laws, and until that time, DHS agencies would continue to do their jobs. “As long as Congress gives us the money to deport 400,000 people a year, that’s what the administration is going to do,” she said. “That’s our obligation under the law.”

In the wake of the interview, the senior Obama administration official came under intense criticism from grassroots immigrant rights groups, which continued into the president’s second term. In 2015, 17 members of the American Immigration Lawyers Association called on the organization to rescind its invitation to Muñoz to appear as a keynote speaker at the group’s annual conference, describing her in a letter as “one of the principal architects of shocking, widespread, and ongoing human rights violations against vulnerable children fleeing Central America.” Muñoz ultimately delivered her address while critics held signs in protest and others booed.

Muñoz is not without her defenders. In 2011, Deepak Bhargava, a distinguished lecturer at CUNY’s School of Labor and Urban Studies, was arrested alongside Rep. Luis Gutierrez (D-Ill.) outside the White House while protesting the Obama administration’s deportation crackdown. At the time, Bhargava was the executive director of the Center for Community Change, a progressive community organization where Muñoz formerly served as a board chair. He attended meetings with the president and to this day describes himself as a “fierce critic” of the former administration’s policies. Given that experience, Bhargava told The Intercept, “I sort of feel like I can say with authority that criticism of Cecilia is misguided — she was really the one senior level pro-immigrant voice that consistently fought for the movement on the inside.”

Amid the fallout from the 2011 Frontline interview, Bhargava’s former organization was one of 18 groups that issued a joint statement in Muñoz’s defense. In her years in the White House, Bhargava said, Muñoz won some battles and lost some battles, including against former Obama chief of staff Rahm Emmanuel and former DHS secretary Janet Napolitano. “It’s ridiculous to argue that immigrant communities would have fared better now with her absence,” Bhargava said. “It kind of just makes me sad that the very justified anger about Obama’s immigration policies is landing on sort of the one progressive woman of color who I know from experience was in there fighting for the movement, often out of public view and in a pretty hostile setting.”

“I feel like the Biden administration is going to be better than it would otherwise be on immigration because she’s there,” he added. “I don’t know all the details of the criticisms people are making but I do know her, and I’m confident about who she is and what she stands up for when she’s in the room.”


Biden’s Promise of a Deportation Moratorium Is Nowhere in His Platform

Questions of accountability for the Obama years and divergent visions of what justice and change should look like in the immigration system, especially after four years of Trump, will take on new urgency when Biden assumes office next year.

Andiola, who has called the Muñoz addition a “huge mistake,” said her concerns about the direction of the incoming administration on immigration deepened last week, when Biden and Harris released a list of agency review teams responsible for “ensuring a smooth transfer of power” and preparing the administration and its Cabinet “to hit the ground running on Day One.” Among those listed under DHS, Andiola said the only names she recognized were Obama-era officials. She said she knew of nobody from her political orbit, immigrant rights advocates who critiqued the Obama administration from the left, who had been contacted or gone to work with the incoming Biden team. “It’s definitely not a great start,” she said. “But let’s hope for the better.”

Given the experience of the past four years, Andiola argued that Biden should be seeking advisers focused on dismantling the country’s detention and deportation apparatus; advisors who won’t trade the safety of immigrant communities for long-shot political opportunities. “That’s as important as pushing Congress to do something,” she said, “because we don’t want to end up in the same situation of the Obama administration.”

“I’m just a little bit nervous that they are going to bring on board people who are not necessarily the opposite of Stephen Miller, and that’s what we need right now,” Andiola went on to say. “We need someone who can wake up every day thinking, What am I going to do for the immigrant community? Just the opposite of what Stephen Miller does, which is waking up every day thinking what the heck he’s going to do to deport us and to harm us.”

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