It’s March 2023. We’re a little over two years into the Biden administration, and for two of those years, the Democrats “controlled” two branches of the federal government. I put quotes around “controlled” because it feels like a misnomer to say that given that Democratic “control” of the Senate was not all that it was cracked up to be.
So, what has the administration done on the immigration front? Well, according to Migration Policy Institute, from the President’s inauguration to mid-January 2023, the Biden administration took 403 immigration-related actions, which, if true, would mean that it would soon do more than the Trump administration did in all four of its years.[1]
Notwithstanding, I think the results have been mixed, at best. I mean we’re talking about a system that is entirely broken and has been for decades now.
For example, although the administration “suggests” it would like to end Title 42, in reality the Biden administration has continued it. As a reminder, Title 42 is a policy implemented in March 2020 under then President Trump (by order of the U.S. Centers for Disease Control and Prevention (“CDC”)), purportedly to protect public health during the COVID-19 pandemic. According to U.S. Customs and Border Protection, more than 1 million migrants seeking to enter the United States to apply for asylum were expelled to their home countries or Mexico in Fiscal Year 2022. Although then President Trump enforced Title 42 as a blanket policy, to their credit, the Biden administration modified it to allow unaccompanied minors and families with young children to enter the U.S.
In terms of enforcement priorities, the Biden administration took a very big (positive) step when Department of Homeland Security (“DHS”) Secretary Alejandro Mayorkas announced the Administration’s new enforcement priorities, “Guidelines for the Enforcement of Civil Immigration Laws”. But, perhaps predictably, several Republican states sued the administration, and a federal judge has since blocked some key elements of the guidelines.
What about refugees? Well, President Trump had lowered the refugee admissions ceiling to 15,000, and although last year the Biden administration raised the cap to 125,000, as of mid-July last year, there were only a small fraction of that number that were admitted to the U.S. Part of the issue is the program is in a rebuilding mode after years of reduced admissions, the pandemic, and the failure to allocate sufficient resources to it.
Akin to refugees, but for those already here in the United States (and some not), the Biden administration took meaningful steps on some humanitarian fronts, although certainly not perfect.
For example, the administration set up (less than perfect) humanitarian parole programs to assist displaced Afghanis and Ukrainians. For nationals of Somalia, Yemen, Haiti, Ethiopia, Burma (Myanmar), Syria and Venezuela, the Biden administration either designated or extended the designations of those countries for nationals to apply for Temporary Protected Status (“TPS”) in the United States, which allows individuals from those countries who are in the United States to temporarily live and work here and defers them from removal / deportation.[2]
Also in the news was Deferred Action for Childhood Arrivals (“DACA”), a policy created a little more than ten years ago by the Obama administration, which allows individuals brought to the U.S. as minors (generally through no fault or decision of their own) to attend school and work legally in the U.S. Unfortunately, and as I’ve written repeatedly in this space before, these individuals continue to live in limbo as DACA has been the focus of numerous court cases (and indeed as I type this, DACA recipients are waiting on a ruling from the 5th Circuit Court of Appeals in a case challenging the legality of the program).
There have been other changes as well (e.g., to the Public Charge rule, which I’ve written about before as well).
But what there has not been, and what we continue to desperately need, is change to the legal immigration process. On his very first day in office President Biden sent to the hill the U.S. Citizenship Act of 2021, which, among other things, would have provided an eight-year path to citizenship for the estimated 11 – 13 million undocumented immigrants in the U.S. Of course, it was dead on arrival because Democratic “control” of the Senate was illusory at best (and certainly would get nowhere today).
So despite Democratic “control” in both houses of Congress during President Biden’s first two years, Congress was unable to advance the President’s agenda (and indeed Republican state officials have been very adept at using the federal courts, and Trump-appointed judges, to halt many of the Biden administration’s immigration-related actions efforts). I’m not optimistic that the status quo will change (for the better) any time soon.
[1] According to the Migration Policy Institute, the Trump administration had 472 immigration-related executive actions during its entire four years. o
[2] TPS designations are made for 6, 12 or 18 months at a time.