Many immigrants and immigration lawyers are wondering what the election of Joe Biden will mean for immigration reform. No one is sure yet, but we do know that Biden will likely be much more pro-immigrant and in support of immigration reform than the Trump Administration. Presidents aren’t able to change immigration laws on their own because only Congress can propose and pass laws. However, presidents do make significant changes to immigration regulations and policies. We know that because the Trump Administration has changed them about as much as possible.
First, we should ask what Biden’s platform is currently. Then, we should consider what the political realities are for implementing that platform.
What has President-Elect Biden said about immigration?
Immigration lawyers are laser-focused on the particular details of a candidate’s platform. We have clients who would benefit from one policy or another. What does a President Biden want to do?
The overall tenor of President Biden’s plan is a more compassionate immigration policy that takes into consideration a balance of enforcement actions and humanitarian concerns. That means that a President Biden would likely reverse some of the immoral and controversial policies of the Trump Administration, such as separating families and punishing asylum seekers. We can also probably include the travel bans and public charge rules. It seems like that Biden and his administration will also be good faith negotiators on immigration reform. This would be a welcome change, because Trump has repeatedly expressed support for different policies only to take actions against them, such as rescinding DACA.
Biden has publicized his immigration policies. These are really campaign points and it remains to be seen what he will do on his own and what he will propose to Congress for new legislation. As a lawyer, the most impactful changes would be:
- Ending family separation at the border. This Trump policy has separated many parents from their children, perhaps forever, and created a humanitarian crisis at the border.
- Reverse some of the Trump Administration’s changes to asylum. Trump has punished asylum seekers, sending them to Mexico to await court hearings (which are constantly canceled) and prevented others from living their lives here in the US. Biden has committed to ending these changes.
- Biden will reverse the public charge rule. This rule has basically turned routine immigration processes into paperwork nightmares. The point is to discourage people from immigrating to the US, as with many other Trump policies. Biden will end it.
- Protecting Dreamers. Dreamers have been waiting since at least 2006 for Congress to take action. When Trump took power, he only made life worse for them. Biden will work to not only keep the DACA program alive, but also to push for a DREAM Act rather than pretending to while undercutting benefits, as Trump has.
- Ending the travel bans. Trump has not missed an opportunity to restrict immigration. The COVID Pandemic has not only upended the lives of many people, it also presented an opportunity for Trump to end immigration. Today, many parents and children of US Citizens and permanent residents are stuck abroad under the imaginary guise of “affecting the labor market.” Biden will end the travel bans.
- Prioritizing sensible immigration enforcement. When Trump took power, he decided to prioritize everyone who was in the country without permission. In reality, you can’t prioritize everyone. Case backlogs have grown by hundreds of thousands during every year of the Trump Administration. Biden would focus on dangerous people and not spend resources on people like mothers and fathers of US Citizens.
These proposals are high level policies that will impact millions of people. They aren’t detailed laws or regulations, which is to be expected. But they clearly show a compassionate and sensible response to immigration policy that would both enforce US laws and take into consideration the personal stories of people living in the US.
Is immigration reform like to happen during a Biden presidency?
When a candidate proposes certain policies, it’s generally understood that they might not happen. That’s because a president of the United States has limited power. The president and propose laws and enact policies. But Congress passes laws. The President only gets to approve or veto a particular law. As a result, Presidents have limited influence in legislation.
Congress has the responsibility to create immigration laws. If immigration laws have been stagnant for years, it’s because Congress has not changed the laws. Arguably, most immigration laws have not changed for decades. President-elect Biden must work with Congress to get immigration reform passed.
Because Biden cannot go it alone, he has to depend on the House and Senate to craft and pass immigration reforms. That’s likely to be a struggle if the Senate is not controlled by Democrats. But it’s worth noting that immigration legislation has always been a challenge. Even when the Democrats held both Congress and the Presidency during the Obama Administration, very little immigration change occurred. Immigration bills are always compromises, and there is wide disagreement even within the Democratic Party about many immigration issues. As a result, it’s always a challenge to pass immigration reform.