The state of affairs that President-elect Joe Biden will inherit when he’s sworn into office next month already has many on the left, along with anyone just generally interested in governance, staring down the void of three years of stalemate. In the best-case scenario, he will take office with the slimmest of possible Senate majorities, with his vice president holding the tie-breaking vote and the threat of Joe Manchin’s defection the second someone says “social safety net” within earshot. In the worst case, one or both of Georgia’s Senate seats remain in the hands of the GOP, allowing Majority Leader Mitch McConnell to maintain his comfortable routine of tossing incoming bills into the shredder.
There is, however, one policy area particularly malleable to executive hands, where Biden could, if he so chose, implement massive, transformative changes without a single act of Congress: immigration. It’s eminently doable, something we know well because outgoing President Donald Trump—or, to be more precise, White House adviser Stephen Miller—did it with a ruthless efficiency rarely seen anywhere else in the historically incompetent administration of Biden’s predecessor.
Biden and his inner circle have already offered up some ideas about the Trump policies he plans to roll back and the legislative priorities on immigration that the administration plans to push in Congress. Among other things, they plan to stop the termination of DACA, return to a tiered prioritization scheme for immigration arrests, and advocate for an expansive but ill-defined legislative path to citizenship for undocumented immigrants. There is, however, a glaring omission: no mention of the proactive executive power agenda that Biden could unilaterally roll out, not only to undo but to redo the post-Trump mechanics of the immigration system. “Most of the stuff that Miller took apart, smart people could put it back together again, and then some. Not just put it back together, but build on it,” said Paul Wickham Schmidt, who served as chairman of the Board of Immigration Appeals, or BIA, from 1995 until 2001 and runs a popular immigration blog.
Schmidt’s former employer is a bit of a dark horse in the nation’s immigration apparatus. While the Department of Homeland Security is most closely associated with the system, the hugely consequential immigration courts fall under the auspices of the Justice Department. This system of administrative tribunals is the ultimate arbiter for the hundreds of thousands of people put into removal proceedings each year. Its judges rule on the strength of government evidence on the level of hardship that would be visited upon children and spouses left behind, on whether torturous stories of violence and murder fit predetermined categories neatly enough to establish asylum eligibility.
They have never been truly independent, and even the patina of their neutrality was scraped clean by the current administration’s overt meddling. The BIA is the appellate division, and the attorney general serves as a kind of one-person super supreme court, capable of overruling the BIA and appointing (or firing) all immigration judges. Trump’s attorneys general—particularly Miller’s former boss and xenophobic true believer Jeff Sessions—have utilized these powers with gusto, reshaping how the court operates and stacking the BIA with hardliners who’ve handed down dozens of precedential decisions limiting immigration relief.
Undoing this kangaroo BIA’s avalanche of policy wouldn’t necessarily be an easy or immediate fix, but it would be a relatively straightforward accomplishment. Biden’s AG pick could appoint an entirely new slate of judges who could, over time, reverse every odious or maladroit decision made during Trump’s tenure and get rid of new procedural obstacles to due process, such as completion quotas and restrictions on case closures. Yet why stop at a return to the status quo? Schmidt pointed to Matter of A-B-, a 2018 decision in which Sessions actually reversed a prior asylum grant for a Salvadoran woman who had faced horrific domestic abuse. Sessions then went further by ruling that victims of domestic and gang violence are generally categorically ineligible for asylum, closing the door on protections for two of the most common types of asylum seekers.
That interpretation was struck down two years later by the Ninth Circuit, but not before thousands of migrants had their claims rejected. While that circuit decision might preclude having to overturn it internally, Schmidt believes cases like that can serve to take policy in entirely the opposite direction. “I could write A-B- in a way that would serve as basically a precedent for granting all sorts of domestic violence and gender-based cases. And there’s plenty of people out there that could do it. So don’t just go back to where we were,” he said.
While making the immigration courts full Article III courts, on par with the federal judiciary, would require congressional action, procedural reforms like locking in a more thorough review process before new appointments to the BIA are made could at least insulate that board from the kind of open political pressure that has become the norm.
The entire system can also benefit from better access to legal representation. Unlike their counterparts in the criminal justice system, immigrants in removal proceedings are not guaranteed an attorney if they can’t afford one. It’s hard to arrive at any accurate estimate of how many people, including children, end up appearing in court alone, but an American Immigration Council report surveying data from 2007 to 2012 found that only 32 percent of those caught up in these proceedings did so with the assistance of legal counsel. A number of municipalities, including New York City, have instituted their own public defender-style programs for immigrants with deportation cases, but the staggering number of new cases in the last several years has likely overwhelmed these efforts.
When you consider that no small amount of research is necessary to do something as simple as properly contest a parking ticket, it’s easier to imagine how difficult it is to navigate the immigration legal framework’s thousands of hyper-technical and often contradictory stipulations, all of which would be written in a language foreign to you—to say nothing of doing so while in ICE detention. Then imagine presenting your case alone before an executive branch judge, all while a trained executive branch attorney who might already be on the fourth such case of the day tries to shoot you down. To state the obvious, it’s not a system particularly conducive to fairness, or even efficiency. A restructuring of priorities could open up resources for a sort of federal public-private partnership to foment universal legal representation instead of leaving it up to localities. The constant lawsuits against new Trump policies have also strained the operations of many immigration-focused legal providers; Biden simply dropping its defense of various asylum restrictions, for example, could free up a lot of legal firepower.
Beyond the courts, one of the most significant executive action areas being pushed by advocates would clear a path for hundreds of thousands of people who could be technically eligible to legalize their status but are currently prevented from doing so due to convoluted rules, which both force them to leave the country to apply and bar them from reentering. As part of a Clinton-era immigration overhaul, unlawful presence in the country—the time since a visa has expired or, for people who entered illegally, since they set foot on U.S. soil—often triggers bans on reentry upon departure. Generally speaking, people who have been present without status for more than 180 days are banned for three years; for those who hit a year of unlawful presence, the penalty is ten years. At the same time, most people without status cannot apply to get it from inside the country, even if they otherwise have a legal avenue of which they might take advantage.
The bizarre result is a cadre of immigrants with a legal path to residency but for whom the act of actually seeking it risks years of exile. A provision of law allows this consequence to be waived for people who can prove their ban would cause hardship to U.S. citizen spouses or parents but not children, thus excluding hundreds of thousands of undocumented parents. One solution would be to expand the parole-in-place (PIP) program, a loophole currently available only to families of military service members under which certain officials are permitted to parole people who don’t otherwise have status into the country on humanitarian grounds. This process can technically occur even when the beneficiary is already in the country, thus “fixing” an unlawful entry for the purposes of adjusting status.
Minnesota immigration lawyer and National Guardsman David Kubat told The New Republic that even for people with no immediate path to legal status, parole can provide work authorization and make status easier to achieve in the future. “Once you’re paroled, you’re always paroled for the purposes of adjustment,” he said. “It would permanently put several million people on a path to adjustment of status, which can put a real dent in the unauthorized population.” PIP as a concept was lent Congressional support in last year’s National Defense Authorization Act, giving broad presidential use a much better legal footing, and could be paired with pure deferral programs similar to DACA.
The clearest test of the new administration’s commitment to fundamental humanity will come from within Homeland Security’s immigration enforcement agencies. Their placement into the post-9/11 DHS gave them freer reign, but the agents performing these duties have been operating under semi-sanctioned lawlessness for a long time. Border Patrol in particular has become the poster child for a sort of callous indifference to the lives it comes into contact with. Its longtime strategy of prevention through deterrence—the Orwellian term for funneling migrants toward more dangerous parts of the border and interfering with humanitarian aid—has been remarkably successful at increasing death and suffering among border crossers while failing to actually deter anyone from making the trek. The agency remains largely trained and equipped to encounter single working-age, economic migrants and smugglers, despite the fact that for years now its encounters have mostly involved families of asylum seekers or unaccompanied children actively turning themselves in.
This is both a policy and culture problem. The new administration can finally face the reality of the desperate population pleading for basic protections at its border and revamp training and guidance, but this is of little use without an agency that knows it must respond to oversight and face consequences for transgressions. Schmidt recalls that when Obama changed around prosecutorial discretion standards in 2014, some field offices simply didn’t go along. “It was like, ‘well, judge, our district director doesn’t believe in that program,’ or, ‘that’s, that’s the way we do it,’” he said. Without active supervision, any policy changes are pointless.
The same goes for the sprawling detention machinery managed by ICE and run mostly by contracted municipalities or private detention firms. To use the word “reform” in reference to this vile collection of prisons and their abject disregard for life and health is a bit absurd; each interlocking part has its own assortment of twisted realities and resistance to oversight. Incrementalism isn’t going to work here. Instead of attempting to improve conditions for those in detention, Biden will have the chance to power-wash the filth away in one fell swoop by stopping most immigration detention altogether.
Many don’t understand that immigration detention is a purpose-driven civil detention that has been designed, in theory, to ensure individuals don’t pose a danger to the community, that they show up to their hearings, or, if an order of removal has been issued, that they are deported without fleeing. The government has huge discretion to simply not detain, or release people who are detained, on humanitarian grounds or through alternatives to detention, like periodic check-ins. “I don’t think it’s a secret to anyone that detention is used as a deterrent, in many cases even where it isn’t necessary to ensure that people show up for their hearings,” said Melissa Crow, a senior supervising attorney at the Southern Poverty Law Center who served a stint as policy adviser and interim deputy assistant secretary for policy at the Department of Homeland Security in 2010. She is helping the SPLC formulate recommendations for a Biden executive agenda, including the use of prosecutorial discretion to stop putting most people in detention and curtail data-sharing between localities and the federal government. “The government, anytime it wants, can decide not to pursue removal proceedings,” she said.
Biden’s team has already stated it intends to enact a hundred-day freeze on deportations, which raises the question of what’s going to happen to the tens of thousands of people still in detention as the team presumably reevaluates deportation priorities. An easy solution would be to just let almost everyone go; while there is a congressionally enacted detention bed mandate, this stipulation has previously been understood to require a certain number of beds to be available, not necessarily filled.
As he faces down the barrel of immediate and gleeful obstructionism in the Senate, Biden has the opportunity to not only swing the immigration pendulum back to equilibrium but unilaterally push it back in the other direction—hard. Trump proved it can be done; the question is, does Biden want to undo the damage and reverse the fortunes of immigrants with as much fervor?