The administration’s best-case scenario is a “totally mixed bag,” said Jorge Loweree, policy director at the American Immigration Council. “And worst case is an effective continuation of what Trump wanted.”
Republicans have continued to seize on the record number of border arrests and have filed lawsuits challenging policy changes, hampering the administration in its attempt to execute some of its pledges.
Another Trump-era border policy that immigrant advocates and the United Nations have urged the Biden administration to ditch also remains in effect. A public health authority, invoked at the onset of the coronavirus pandemic, allows authorities to turn away migrants encountered at the US southern border, effectively barring them from claiming asylum.
When asked about the authority, known as Title 42, the Biden administration has referred to the Centers for Disease and Control Prevention, which, according to a White House spokesperson, deems it necessary given the Delta and Omicron variants.
Immigrant advocates — who expected significant changes after four years of curtailed immigration under then-President Donald Trump — have welcomed the unwinding of some Trump-era policies but also have increasingly voiced concern and disappointment to officials over the administration’s actions in numerous discussions.
“The Biden campaign promised to welcome people with dignity, and instead we have returned to Trump policies,” said Karen Tumlin, attorney, founder and director of Justice Action Center, in a call with reporters. “This is not the change millions sought when Biden was elected.”
The White House defended the administration’s actions and reversal of Trump-era immigration policies.
“The President has made clear that restoring order, fairness, and humanity to our immigration system are priorities for this Administration. Our immigration system is outdated and in bad need of reform; But this Administration is committed to working day in and day out to provide relief to immigrants and bring our immigration system into the 21st century,” a White House spokesperson said in a statement.
Treatment of migrants
“Nearly eleven months since taking office, this administration continues to violate U.S. asylum law and evade U.S. treaty obligations by blocking and returning asylum seekers to places where their lives and safety are in peril,” the letter reads.
The continued use of the public health order is an example of the unique position the Biden administration finds itself in: tackling a pandemic and wrestling with a growing number of migrants at the US southern border, many of whom are fleeing conditions at home that were exacerbated by the pandemic.
“The volume and emergencies have had us in a defensive posture rather than reforms and a proactive agenda,” an administration official told CNN.
Reuniting children separated during Trump years
Despite various setbacks, the Biden administration has made some inroads on its immigration agenda, including changing enforcement guidelines to prioritize certain undocumented immigrants for arrest and deportation, ending mass worksite enforcement, halting border wall construction and no longer applying controversial rules, like the Trump-era public charge regulation that made it more difficult for immigrants to obtain legal status if they used some public benefits.
Lawsuits have stemmed from the zero-tolerance policy and separation of families. For example, the American Civil Liberties Union filed a class-action lawsuit in 2019 seeking damages for the toll the separations took on families, and attorneys for families have filed separate claims.
After a steady drumbeat of criticism from Republicans about the ongoing settlement negotiations, the Justice Department this month broke off the talks with attorneys for separated families.
Next year is expected to bring more court hearings, including in the class-action lawsuit seeking damages, and additional immigration policy changes, like building out asylum capacity.
Those efforts are likely to keep facing the same uphill battles in the coming year.
“They have to win on this because they’re in such a bad place with advocates and immigration broadly,” a source close to the White House told CNN, referring to immigration restructuring. “Not delivering on this issue will be terrible for them politically.”