Yet those of us who closely track this country’s arcane mess of immigration laws and regulations have been puzzled: We’d been told to expect a thorough repudiation of Trump’s unprecedented restrictions — or at least more transparency about what the future might hold for people seeking to live or work in the United States. Instead, although Biden’s orders looked sweeping on the surface, they didn’t touch dramatic restraints on asylum, permanent immigration and work visas. Sure, certain Muslim-majority countries are no longer specifically targeted, but other Trump policies continue to block practically all legal immigration into the United States, from all countries.
Another round of orders came and went Tuesday: One decried Trump’s efforts to “stymie legitimate asylum seekers” but left in place an order from the Centers for Disease Control and Prevention allowing border personnel to summarily expel asylum seekers without due process, under the guise of pandemic response. Despite the ambitions signaled by another executive order, titled in part “Restoring Faith in Our Legal Immigration Systems,” Trump Presidential Proclamations 10014 and 10052 — which block the issuance and use of immigrant and temporary work visas like the H-1B — were also allowed to remain.
Pressed by reporters about why these measures remain active, administration officials have offered only vague and evasive platitudes about processing capacity and the coronavirus pandemic. Except there is no legitimate debate about whether these measures are needed to protect public health. When the CDC enacted its order last March, the United States had far, far more coronavirus cases than Mexico did. As reported by ProPublica, career staffers thought the proposal was based on massaged and incomplete data. The CDC’s director of global migration and quarantine, Michael Cetron, flatly refused to sign off on it, telling a colleague: “It’s just morally wrong to use a public authority that has never, ever, ever been used this way. It’s to keep Hispanics out of the country.” It was ultimately signed by then-CDC Director Robert Redfield under political pressure from the White House, which viewed the pandemic as an opportunity to push through its anti-immigrant agenda. Public health experts dispute that there is any health benefit to the policy, pointing instead to quarantine periods and diligent testing for arrivals.
Biden directed his government to “promptly review and determine whether termination, rescission, or modification” of the CDC order is appropriate — essentially, a study group on the issue, just days after an all-Trump-appointed panel of federal circuit judges gave immigration agents the green light to continue expelling unaccompanied children. Though the administration quickly announced that it wouldn’t deport minors traveling alone, families and other desperate migrants seeking humanitarian protections are fair game. (It’s the Mexican government that’s taken more decisive action, beginning to refuse would-be expulsions of families and children.) I recently reported on how, this summer, U.S. Customs and Border Protection used this same CDC order to send multiple new mothers and their U.S.-citizen infants to dangerous conditions across the southern border.
For their part, the Trump proclamations blocking prospective immigrants and nonimmigrant workers from getting visas or entering the country don’t even purport to be protecting public health. Their titles claim to address a “Risk to the U.S. Labor Market.” The Trump administration chose to block these arrivals not because they were considered likelier to transmit the coronavirus than were tourists (who by and large have been allowed to freely travel into and around the country, barring a few targeted restrictions), but because they were deemed a threat to the U.S. economy, in keeping with long-standing right-wing fantasies about immigrants taking up a limited pool of jobs.
It’s evident that Biden’s transition team picked a few big-ticket items to flashily rescind on Day One. That generated good press and seems to have gained the approval of a Democratic voter base that hated Trump’s immigration policies and is increasingly favorable toward immigration in general. The public probably came away from these staged signings thinking that Biden reversed his predecessor’s immigration structure and returned things to “normal.” The impression isn’t altogether false: The president moved to rebuild the refugee program and raise the refugee cap, rejiggered internal enforcement priorities, stopped border wall construction and attempted a deportation pause, among other concrete steps.
Yet immigrating to the United States from abroad remains functionally prohibited, and asylum seekers can be ejected from the country in as little as an hour. Between the first half and the second half of fiscal 2020, immigration into the country dropped 92 percent, a decline that reflects both the pandemic reality and the restrictions layered on top of it. This has left hundreds of thousands of families in an extended limbo, and estimates point to a years-long backlog just to process new immigrant visa applications, if and when the ban is lifted. Winners of the diversity visa lottery were forced to sue the government to avoid forever losing their opportunity to resettle in the United States. According to Customs and Border Protection data, since the start of the pandemic the agency has conducted more than 380,000 expulsions, most of them asylum seekers who never got their cases heard.
Perhaps these orders remain because the Biden camp buys into their economic or political rationale, or because officials fret about a possible border surge. Biden’s Republican opponents will cast him as an “amnesty and open borders” absolutist no matter what he does, but images of a disorganized border with many arrivals, or commentary about recent immigrants “taking” American jobs, are considered a risk to public support. The administration is, in essence, trying to have it both ways — burnishing its image as a Trump foil and champion of immigrants while quietly leaving in place unprecedented restrictions.
Top officials may feel that they simply have to wait things out: The CDC order is in place indefinitely pending review (though it’s not altogether clear how much study must be done of a policy that wasn’t in place this time last year and doesn’t serve a public health purpose), but the two proclamations are set to expire at the end of March. In the meantime, hundreds of thousands of people find the door to humanitarian protections, family immigration and U.S. employment firmly closed for nebulous political reasons.
As the pandemic continues to unfold, these issues are only going to get thornier. There will no doubt be calls for the United States to shut out the unvaccinated, which in practice would mean most arrivals from the global south, since a handful of countries with abundant spending power have already claimed the bulk of doses that could become available in 2021. For large parts of the world, inoculation will be a years-long process, and how to deal with that reality will shape immigration policy for this entire administration. In remarks before this past week’s signings, Biden said he was “not making new law. I’m eliminating bad policy.” In reality, his stack of executive actions allowed a great deal of the Trump administration’s most consequential restrictions to continue. If the Biden administration sticks with its cautious, half-measure approach, those words may end up being nothing more than a good sound bite.