Biden has said he would govern differently from President Barack Obama, and he has acknowledged that deporting people who had not committed any crime other than crossing the border was a “big mistake.”
“It took too long to get it right,” Biden said during the second presidential debate. “I’ll be president of the United States, not vice president of the United States.”
Although Biden is pledging a new way to approach immigration, his advisers include those who steered Obama’s policies. He also is facing a slew of challenges in the immigration enforcement arena:
- The Department of Homeland Security agencies in charge of enforcement — Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection — are secretive, closely adopted President Trump’s aggressive immigration agenda and can be slow to change. They also have labor unions that endorsed Trump.
- The Justice Department’s immigration court backlog has more than doubled — to 1.2 million cases — and the judges are pushing for a more independent and transparent court.
- Smugglers in regions such as Central America are likely to capitalize on Biden’s expected gentler approach toward immigration. Border apprehensions have increased in recent months, and mass migration at the border could imperil the new president’s agenda, as it did Obama’s and Trump’s.
Biden’s immediate plan on immigration enforcement is to pause.
He has endorsed a moratorium on deportations for the first 100 days of his presidency, a major shift. He also has promised to restore what he called “sensible enforcement priorities” — an approach that focuses on people who pose a national security threat or have criminal records. Biden also would stop workplace raids, as Obama did, and stop the deportation of U.S. military veterans.
“Targeting people who have never been convicted of a serious criminal offense and who have lived, worked, and contributed to our economy and our communities for decades is the definition of counterproductive,” Biden said in his campaign platform.
But Obama also made it a priority to target recent border crossers, who have accounted for the majority of deportations in most recent years, and Biden has not yet fully explained how he would handle a significant influx of immigrants.
Biden has slammed Trump’s policies of separating parents and children at the border or forcing them to wait in Mexico for their U.S. asylum hearings. The president-elect said that he would not separate parents and children and that he would immediately end Trump’s Migrant Protection Protocols. He also said he would increase the number of immigration judges, asylum officers and humanitarian aid at the border to adjudicate cases.
He said he would “end prolonged detention” and expand a program that allows immigrants to remain free in the United States, often with ankle monitors, to ensure that they show up for their court hearings. He said he also would work with faith-based organizations to ensure that immigrants, especially children, are moved to safe locations “as quickly as possible.”
In addition, he said he would end for-profit detention centers and hold facilities to “the highest standards of care."
Advocates for immigrants say major questions remain, such as whether Biden would allow the government to accept help from local sheriffs and others who want to help ICE detain immigrants.
“So far, there hasn’t been sufficient detail coming from the transition team,” said César Cuauhtémoc García Hernández, a law professor at the University of Denver.
Others say it is unclear how quickly Biden will be able to undo Trump’s policies, which left immigrants with no criminal records who have been in the United States for a long time vulnerable to deportation.
“Can Biden come in and say, ‘Don’t do that?’ ” said Lena Graber, a senior staff attorney with the Immigrant Legal Resource Center, based in San Francisco. “I don’t know how fast you can change that.”
Pro-enforcement lawmakers also are likely to hound Biden if asylum seekers swamp the border after his policies take effect.
“The cartels are already gearing up,” said Thomas Homan, a retired ICE director and a Trump supporter. “And the reason they’re way up is because of the Biden effect.”