An end-of-year appraisal of US immigration policy
The Big Picture
A long year is drawing to a close, and as far as immigration policy is concerned, we have quite little to show for it. No immigration legislation has been approved. As of last night, the Senate parliamentarian has ruled against Democrats’ plan C on immigration, which was to create a widespread program to grant agonizingly flimsy humanitarian parole to millions of people, and there’s no reason to think Democratic senators will overrule her decision. The Justice Department has reversed course on settlements for separated families, walking away from negotiations. The Migrant Protection Protocols are back, and Title 42 never left. The U.S. Citizenship and Immigration Services are a dysfunctional mess, the immigration courts are backlogged and inefficient, the U.S. missed its already-low refugee cap by 50,000, and the detention population is growing, mostly in private immigration prisons.
The Biden administration has taken some positive steps to inject some rationality and humanity into the system, including by limiting internal worksite enforcement and instituting new enforcement priorities (though these weren’t exactly revolutionary). Not all of these have stuck; the priorities, for example, have been blocked in the courts. It re-designated and expanded some Temporary Protected Status designations. Biden waited until after a month after his inauguration, but he finally terminated Trump-era pandemic-related immigration and travel bans that he’d initially left in place. Still, all in all, the way the immigration system at all levels is functioning now is substantially similar to the way it was functioning a year ago. In the end, Biden, Congress, and the courts haven’t been particularly good nor particularly bad. They’ve mainly just managed to maintain the status quo coming off the Trump years, which itself was rather bad.
So, as we say goodbye to 2021, we thought we would take a look at two significant areas of immigration policy, and how they ended up this year:
Things started off looking somewhat encouraging, at least more so than they had in years. The Democrats had the presidency and majorities in both houses of Congress, albeit the slimmest of all possible majorities in the Senate. In an earlier era, perhaps they could have counted on a handful of Republican backers for paths to citizenship for the undocumented and generally pro-business immigration systems reforms, but by this point abject fear-mongering about immigration had become a litmus test in the GOP.
Out of the gate, advocates were cautiously optimistic and energized by Biden’s expansive, early legislative proposal, which emphasized paths to citizenship without the usual trade-off of buying Border Patrol new Abrams tanks or whatever Republicans demanded for “border security” this time. It seemed like the president was going to throw his weight behind a robust legislative agenda towards regularization, even if that stopped short of a real reform to the way the immigration systems work. In March, the House passed the Dream and Promise Act, the latest offspring of the long-ago DREAM Act, and then the Farm Workforce Modernization Act, which would provide protections and eventual residency and citizenship for a large population of DREAMers, TPS and DED holders, and agricultural workers, respectively. The latter would also make changes to agricultural work visas.
Then, the bills died in the Senate. Moderate Democrats opposed ending the filibuster, and there was no way the bills would receive nine or more Republican votes. No matter, Congress still had to work its way through the enormous reconciliation bill that formed the backbone of Biden’s Build Back Better agenda, could include immigration measures within a whole host of other popular initiatives, which could collectively pass with the 51 votes that they could muster when including Vice President Kamala Harris. The first effort was ambitious, combining elements of Dream and Promise with Biden’s U.S. Citizenship Act to offer millions of essential workers, DREAMers, and others a path to eventual citizenship. Then, Senate parliamentarian and former immigration prosecutor Elizabeth MacDonough ruled against it, claiming that the immigration change was merely incidental to the budget and therefore incompatible with the reconciliation process.
Senate Democrats chose not to overrule her, though they could have. Instead, they developed an alternative, which they termed “Plan B.” This involved updating the registry cutoff date, an obscure but potent part of immigration law instituted about a century ago to allow people who had been physically present in the United States since a certain date and weren’t otherwise inadmissible to apply for permanent residence. It had become largely obsolete as the date was never changed from the start of 1972, and legislators seized on it as an extremely straightforward way to accomplish roughly the same objective. Then MacDonough shot that down. In the end, they settled on a rickety mass humanitarian parole program, which would provide millions of undocumented immigrants with a protections from deportation and work authorization, but no path to permanent status and or much of a guarantee that they would be protected long-term. Then, yesterday, MacDonough shot that down, too.
Now, some Senate Democrats are pushing their colleagues to overrule MacDonough and just go with their first choice by including a widespread path to citizenship in the reconciliation. They have the definite power to do this, but it’s dubious whether the same Democrats who oppose the termination of the filibuster—primarily Senators Joe Manchin and Krysten Sinema, though it’s likely others are using these two as cover for their own opposition—will acquiesce to this breaking of precedent, particularly since the entire BBB framework is reportedly now at risk.
Either way, this is not going to pass this year, which means that the legislative immigration achievements this year amount to exactly nothing, just as they have for the last thirty years. Next year is not exactly shaping up to be much different.
Asylum seekers and refugees
As a candidate, Biden had sharp criticisms of the Trump administration’s border policies. Remain in Mexico, he tweeted in May, is “dangerous, inhumane, and goes against everything we stand for as a nation of immigrants.” Family separation was “abhorrent.” If elected, Biden promised, he would “finish the work of building a fair and humane immigration system—restoring the progress Trump has cruelly undone and taking it further.” Unlike Trump, Biden would “secure our border, while ensuring the dignity of migrants and upholding their legal right to seek asylum.”
But as president, Biden has instead kept many of Trump’s border policies—including the ones he had previously spoken out—in place, and has in some cases expanded them.
Biden did make some efforts to restore the situation at the border to the pre-2016 status quo. He created a family reunification task force to identify and reunite families who had been separated under the Trump administration’s zero-tolerance policy in 2018. He terminated the Remain in Mexico program (officially known as the Migrant Protection Protocols), and allowed the Department of Justice to reopen cases for some migrants who had been ordered deported in absentia. He didn’t end Title 42, the public health rule that allows for the rapid “expulsion” of asylum seekers at the border, but the administration did promise to begin phasing it out by July 31. Until then, it worked with the ACLU and other immigrant rights groups and legal service providers to implement an exemption process for a small number of migrants.
Ultimately, though, the administration didn’t go much further than that—and in some cases, it reversed course on its own efforts to roll back Trump’s border policies, or to make amends for the harms done under the previous administration.
This week, the Justice Department ended settlement negotiations with the families who had been separated under the 2018 zero-tolerance policy. Biden had previously dismissed the notion that separated families would be given settlements of up to $450,000 per claimant. A White House spokesperson later said the administration was “perfectly comfortable” settling with the families separated under Trump, but that the figure that had been reported was too high. Now it appears that the settlements won’t be happening at all, at least not for the time being.
The administration made more of an effort to end Remain in Mexico, but it ultimately had to reinstate the policy after a legal challenge. Two states sued the Biden administration over its attempt to end MPP, and a federal judge ultimately ordered its reimplementation. MPP round two, however, didn’t have to be implemented immediately, nor did it have to be implemented in the way the Biden administration chose to bring it back. Two of the conditions of its reimplementation were the Mexican government’s agreement and the cooperation of migrant advocacy groups and legal service providers. In October, members of migrant advocacy groups walked out of a meeting with administration officials over the reimplementation of MPP. The administration has chosen to reintroduce the policy anyway, and has expanded it so that any migrant from the Western Hemisphere can be placed in the program. (Under the previous administration, MPP only applied to migrants from Spanish-speaking countries and, later, those from Brazil.)
That doesn’t mean that all migrants who ask for asylum will be placed in MPP. The migrants sent back to Mexico under MPP thus far are primarily from South America and the Caribbean. Central American and Mexican migrants, meanwhile, are still being largely expelled under Title 42.
The persistence of Title 42 has perhaps been the biggest wake-up call for those who believed Biden would undo the most destructive of Trump’s border policies. The humanitarian exemption process was supposed to be an off-ramp, an initial step towards phasing Title 42 out altogether. Instead, on July 31—the day the administration suggested it would begin letting migrant families into the country to ask for asylum, as is required under the law—it announced that Title 42 was here to stay indefinitely. The exemption process ended, and those who had hoped to find some form of relief, however delayed it would be, were once again left in limbo.
None of this would be possible without the cooperation of the Mexican government. Under Trump, Mexico mobilized its National Guard to its southern border with Guatemala as part of a regional effort to prevent Central American migrants from reaching the U.S.-Mexico border. Two years later, Mexican forces are still working to prevent unauthorized migration. They have been deployed to break up migrant caravans, resulting in at least one migrant death. Mexico is also tacitly cooperating with MPP and Title 42, both of which require the presence of thousands of migrants in Mexican cities along the country’s northern border with the U.S. The Mexican government has offered residency and work permits to some migrants who were bound for the U.S., but it has provided few other resources, leaving the long-term care of migrants up to humanitarian aid organizations.
The administration hasn’t fared much better with regards to refugee policy. Biden initially refused to lift the fiscal 2021 refugee cap, which Trump had set to an all-time low of 15,000. The administration eventually raised the refugee admissions ceiling to 62,500 after extreme political pressure—but Biden did so too late to make much of an impact on the overall number of admissions, which reached just 11,411 by the end of the fiscal year. The cap for the 2022 fiscal year, which began on October 1, is 125,000, but early reports suggest that the U.S. may not reach that figure, given the current emphasis on resettling Afghans who were granted entry via humanitarian parole.