But because immigration is an area where presidents exercise a vast amount of discretion, it’s also one where incoming President Joe Biden can do a lot executively to reverse some of the most heinous excesses of the Trump years.
A new report from the Migration Policy Institute lays out some ways Biden could work quickly to start pushing the immigration system in precisely the opposite direction from where Stephen Miller, President Trump’s top immigration adviser, tried to drag it.
However, the report also suggests reasons Biden might have to proceed carefully in unwinding those policies, meaning this can’t happen quite as quickly as one might hope.
One thing Biden can do relatively quickly, the report notes, is revise enforcement guidelines to deprioritize the removal of undocumented immigrants who are not violent criminals. That’s what President Barack Obama originally did, and what Trump then reversed; Biden can reverse it again or go further than Obama did.
As the report notes, this could prove unpopular among many federal immigration agents, but it’s something Biden can do “by memo.”
Another thing Biden can do quickly is to allow all “dreamers” — people brought here illegally as children — who qualify for protections under Obama’s Deferred Action for Childhood Arrivals program to apply for them. The Trump administration recently limited this to only those who previously enjoyed this status, after courts blocked the administration from killing the program. But opening it up this way, the report notes, could mean protections for “hundreds of thousands” of additional dreamers.
Here there’s a major caveat: Expanding it this way could open DACA up to another round of legal challenges. The Supreme Court has not yet affirmatively upheld DACA — instead, it turned away a previous effort to end it on narrow technical grounds — meaning allowing another legal challenge might be a gamble the new administration doesn’t want to take.
But not seeking to eliminate and/or hamstring the program would itself be a big step forward.
Perhaps the biggest area where Biden can begin erasing the Miller legacy is asylum. The new administration can move to end various efforts used by Trump to deter asylum seekers by inflicting maximum hardship and misery on them.
These include the policy requiring tens of thousands of migrants to wait in Mexico pending asylum applications. But unwinding this will be complex, the report notes, involving things such as trying to determine how quickly to process all those currently in this limbo and figuring out what to do for all who were unfairly rejected under this effort.
And the imperative of treating asylum seekers more sanely also raises a big question — whether the new administration will quickly take steps toward streamlining the system. These include boosting the numbers of asylum officers at the border and letting those officers adjudicate the full cases of asylum seekers, rather than turning them over to immigration judges, thus unclogging backlogs that Trump and Miller used as an excuse to turn asylum seekers away en masse.
Meanwhile, a momentous thing Biden can do is start moving toward fulfilling his promise to raise the annual cap on refugees to 125,000 per year, after Trump and Miller dramatically slashed the numbers accepted.
But here again a complication arises.
“The network of nonprofit agencies responsible for resettling refugees saw its capacity dramatically cut under the Trump administration,” Michelle Mittelstadt, co-author of the new report, tells me. “Restarting that capacity will not happen overnight.”
Beyond all this, much bigger and more daunting challenges loom. “Trump was just overlaying all these policies on top of a broken system,” Mittelstadt continued. “Getting to a system that works in the national interest will require an affirmative vision.”
Still, all this has to start somewhere, and moving in these directions right away will itself begin to erase the Miller stain. This will send an important message to the world that the United States is again looking to reassert a leadership role as a safe harbor for immigrants, asylum seekers and refugees.
And it will signal that our immigration priorities will no longer be structured around the demagogic fantasy that immigrants are primarily a menace to be feared — and instead around the thought that immigration can and should be managed humanely with an eye toward what’s truly in the public interest.