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Immigration Law

Improving the U.S. Immigration System in the First Year of the Biden Administration

T. Alexander Aleinikoff, Donald Kerwin, Nov. 10, 2020

"The last four years have brought significant changes in federal policies—and the national discourse—on immigration. Presidential proclamations have denied entry to millions of non-citizens. Regulations and administrative practices have blocked and slowed the admission of legal immigrants. Processing delays, case backlogs and fee increases have made access to visas and immigration relief unattainable for countless immigrants and their families. U.S. businesses have been saddled with new bureaucratic requirements that diminish their productivity, competitiveness and ability to create jobs. The administration has attempted to end the Deferred Action for Childhood Arrivals (DACA) program and to eviscerate the Temporary Protected Status (TPS) program.

Refugee admissions have been dramatically reduced, and community-based infrastructures that sustain refugee resettlement have been decimated. The ability to seek asylum at the southwest border has all but ended, and legitimate asylum claims have been foreclosed by executive fiat. The COVID-19 pandemic has occasioned additional restrictions on refugee admissions and asylum. Legal access and due process have been curtailed.

The immigrant detention system has been expanded, used as a deterrent, and further privatized. It has also served as a vector for the spread of COVID-19. Billions of dollars have been spent on new barriers at the border. Border officials have cruelly separated thousands of children from their parents and consigned others to indefinite detention with their parents. Meaningful immigration enforcement priorities have been abandoned, and enforcement resources have been diverted to undocumented residents with families and strong community ties in the United States. The Department of Homeland Security (DHS) has been consistently misused as a political tool and has been badly mismanaged. The mission statement of U.S. Citizenship and Immigration Services (USCIS) has been re-written, deleting the description of the United States as a “nation of immigrants.”

The new administration will face substantial challenges in putting immigration and refugee policy back on track—not just reversing ill-advised policies of the past four years but also improving a system that was in need of reform well before the current administration took office. In this paper, we highlight a number of reforms that we believe should be prioritized by the Biden administration. We have not attempted to offer a comprehensive list of reforms. We have focused on changes in policies and practices that will have significant impact and that can be adopted through executive action, such as new regulations, the withdrawal of prior executive branch declarations and decisions and the settlement of lawsuits. In doing so, we acknowledge that, on many issues, broader reform will be necessary and will require legislation.

We believe that the foundation for these reforms can and should be established by a presidential address (or addresses) early in the new president’s term. President Biden would affirm the fundamental values and principles that animate the U.S. immigration system, including a description of the United States as a country of welcome, a firm commitment to refugee protection and assistance, respect for due process and non-discrimination in enforcement, the importance of protecting and supporting immigrant communities and promotion of a legalization program for long-staying undocumented migrants and those who entered the country as children. The last four years’ promotion of fear and prejudice must be replaced with an affirmation of the importance of immigration to U.S. families, U.S. businesses and the future well-being of the nation.

Successful immigration policy reform will depend upon the quality and coordination of the top personnel in a number of federal agencies as well as effective leadership by the White House. A new administration will need to pay particular attention to the knowledge, qualifications and character of those selected to fill these positions.

Our recommendations fall into the following categories:

  • Interior enforcement
  • Criminal prosecutions
  • Legal access and representation; adjudication backlogs
  • COVID-19-related policies
  • Segregation of responsibilities within DHS
  • Interior enforcement
  • Criminal prosecutions
  • Legal access and representation; adjudication backlogs
  • COVID-19-related policies
  • Segregation of responsibilities within DHS"