Guest post by César Cuauhtémoc García Hernández, Professor of Law at the University of Denver and author, most recently, of “Migrating to Prison: America’s Obsession with Locking Up Immigrants” (2019).

After four years of President Donald J. Trump’s virulent rhetorical attacks on migrants and his administration’s heavy-handed policies, the United States is on the verge of experiencing multiple shifts in the politics of migration and its policies toward migrants. President-elect Joe Biden and Vice President-elect Kamala Harris reject the abrasive, racist rhetoric that propelled President Trump into office and which he embraced throughout his tenure. But while the new administration is sure to adopt a dramatically different tenor toward migrants, there remain important questions about the extent to which policies will shift course. Options for restructuring migration policy abound. Some necessarily require congressional approval, but others turn on executive powers unilaterally in the hands of the incoming president.

The Biden-Harris team has announced plans to end several high-profile Trump administration migration policies. At the top of the list is a promise to repeal the administration’s 2017 ban on travel from a group of predominately Muslim countries. President-elect Biden says he will rescind that policy in his first day in office. Created by an executive order signed by President Trump, Biden will be able to rescind the policy just as easily through unilateral action.

The incoming administration has also promised to restore the Deferred Action for Childhood Arrivals (DACA) initiative that allows some migrants who came to the United States as young people to remain in the country temporarily. The Trump administration’s attempt to rescind DACA failed before the U.S. Supreme Court and a lower federal court recently ordered the government to implement the initiative as it was initially created by the Obama administration. Those setbacks for the Trump administration make the task of holding onto DACA easier, but the Biden administration will need to defend DACA against an ongoing legal challenge brought by Republican-controlled states. Offering DACA recipients a more lasting form of legal status, however, requires amending the Immigration and Nationality Act, the federal statute that governs immigration law, which only Congress can do. With Democrats unexpectedly taking charge of the U.S. House of Representatives as well as the Senate legislative action is suddenly possible.

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Aside from those two highly publicized policies, the Biden administration can use the considerable legal authority vested in the president as head of the federal government’s Executive Branch. The administration could, for example, revisit the Trump administration’s enthusiastic reliance on local law enforcement agencies to identify people who can be imprisoned and potentially removed from the United States. Relying on section 287(g) of the Immigration and Nationality Act, which authorizes formal partnerships between federal immigration officials and local law enforcement agencies, the Immigration and Customs Enforcement agency currently has 150 agreements with local law enforcement agencies allowing local sheriffs’ deputies and prison officials to flag potentially removable people for ICE. These agreements are structured as memoranda of agreement that impose obligations on ICE and the local agency. However, nothing in these agreements or the authorizing statute bars ICE from cancelling an existing 287(g) agreement. Likewise, there is no requirement that ICE enter into additional 287(g) agreements. Thus, even without Congress acting to repeal § 287(g), the Biden administration could effectively render it meaningless through a simple directive from the new Secretary of Homeland Security or director of ICE.

Just as the new president can unilaterally repeal President Trump’s 2017 Muslim travel ban, President Biden also has the power to restructure enforcement priorities. The incoming president can repeal Trump’s January 2017 executive order declaring migrants who violate immigration, including by entering the country without the federal government’s permission or overstaying the government’s permission to enter temporarily, as “a significant threat to national security and public safety.” Likewise, President Biden’s first attorney general could rescind an April 2017 directive from Jeff Sessions, Trump’s attorney general at the time, prioritizing prosecution of migration law violations under federal criminal law. Sessions asked federal prosecutors to treat as “higher priorities” five federal crimes, including human smuggling, unauthorized entry, and unauthorized reentry. By the end of the 2018 fiscal year, which closed on September 30, 2018, federal prosecutors brought 99,479 immigration crime cases, a sixty-six percent increase from one year earlier. Though eye-catching, this increase is somewhat misleading in that there were less immigration crime prosecutions concluded in 2017 than in any year since 2007. Compared to the Obama administration’s peak of 94,273 cases in 2013, the Trump era high represents a much more moderate increase of 5.5 percent from President-elect Biden’s previous stint in the White House.

Easier to overlook, but no less important are the new president’s personnel decisions. The Biden campaign hired Cecilia Muñoz, a prominent Obama official who advocates have criticized sharply for her steadfast defense of the Obama administration’s migration policies. In a 2011 interview, she lamented that enforcing migration laws inevitably means, “There will be parents separated from their children.” Muñoz was among the early hires announced by the Biden-Harris transition team.

The Biden administration’s choice of attorney general is likewise crucial. As head of the Justice Department, the attorney general oversees the nation’s immigration court system, which consists of dozens of trial-level administrative courts around the country and a single appellate body based outside of Washington, DC. The immigration judges who apply immigration law on a daily basis are employed under authority granted to the attorney general. Likewise, adjudicators at the Board of Immigration Appeals, as the administrative appellate body is known, act as surrogates of the attorney general. Indeed, the attorney general can decide any case before the Board, a practice that has become increasingly common under President Trump. Whether or not the new attorney general takes a direct decision-making role in immigration matters, the person who occupies that position commands immense power by choosing who is hired to fill the ranks of immigration judges and Board members.

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The new administration can, if it chooses, also affect the political economy of migration policy. During the campaign, Biden promised to “end for-profit detention centers,” explaining “no business should profit from the suffering of desperate people fleeing violence.” Since the election, the transition team has not returned to this promise publicly. Following through would require immense political courage, but legally it is within reach. Some contracts with private prison operators expressly allow the agency to avoid any contractual obligations if funding is unavailable. Working with Democratic leaders in the House of Representatives and Senate, Biden administration officials could ensure that future budget appropriations reduce congressional funding explicitly made available for ICE’s custody operations. Alternatively, by excluding reference to custody operations entirely, ICE could designate its funding stream for other uses.

Late-developing news that both chambers of Congress will be controlled by Democrats means that legislative action, previously implausible at best, is suddenly possible. With the Covid-19 pandemic raging, tens of millions of people lacking sufficient food, and rightwing violence reaching the U.S. Capitol, the new administration’s focus will be pulled in many directions at once. When Biden entered the White House as vice president in the midst of a global economic crisis, the Obama administration was quickly consumed by other priorities. Only the next few months will tell whether, as president, Biden can keep the administration’s focus on the many issues that desperately need to be addressed in the United States in the aftermath of the Trump presidency.

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How to cite this blog post (Harvard style) 

Cuauhtémoc García Hernández, C. (2021). Biden’s Migration Policy Options. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2021/01/bidens-migration [date]