I. Introduction
During the 2020 presidential race, President Biden campaigned in direct opposition to the immigration-centric policies epitomized by Donald Trump’s “Build the Wall” rhetoric.[1] Pledging to overturn Trump-era restrictions, Biden promised to broaden protections for individuals seeking asylum, visas, and permanent residency in the United States (the “U.S.”).[2] Following President Biden’s win, his administration became the most proactive in immigration policy to date, undertaking 535 immigration-related actions within the first three years of his presidency.[3]
Despite the administration’s vigorous engagement with immigration issues, inquiries linger about whether these policies have truly yielded positive outcomes or if they have merely perpetuated oppressive conditions within the realm of immigration. Additionally, with the 2024 presidential campaign underway, it is pertinent to understand where President Biden plans to proposition his platform in regard to immigration.
The Biden administration’s agenda largely hinges on the reversal of policies and procedures initiated by the Trump administration.[4] These Trump-era measures, compounded by the challenge posed by the COVID-19 pandemic, severally curtailed legal immigration avenues, refugee admission, and enforced stringent immigration laws.[5] While the Biden administration has notably facilitated an increase in refugee intake, streamlined legal immigration processes, and relaxed enforcement measures, recent indications suggest a shift in this approach.[6] President Biden himself has hinted at potential backtracking, including the contemplation of border closure.[7]
This article aims to provide a comprehensive overview of the Biden administration’s immigration policies, delve into criticism and critiques levied against those actions, and explore the motivations behind the administration’s recent policy adjustments. It seeks to understand whether the administration may have implemented too many actions too hastily, if it did not enact the right actions for the problems present in an immigration context, or if there are strategic appeals to the political center in anticipation of the upcoming election.
II. Background
A. Broad Overview of the Biden Administration’s Immigration Policies
The 535 actions taken by the Biden administration resulted in substantial changes for the U.S. immigrations policies.[8] President Biden has helped bring legal immigration back, even surpassing pre-pandemic levels.[9] Further, President Biden has implemented border processes that seek to regularize the arrival system. In addition to these systemic changes, President Biden has also changed enforcement priorities to only a very narrow category of unauthorized immigrants.[10]
i. Refugees
The Biden administration has notably expanded the admission of refugees into the U.S., operating under the 1980 Refugee Act, which allows a person with a “well-founded fear of persecution” to seek refuge in the U.S.[11] This Act sets a ceiling for refugee admission and outlines a process for reviewing and adjusting this ceiling.[12] In 2021, during the Biden administration, the U.S. admitted only 11,411 refugees, the lowest number since the Act had been passed.[13]
The low number of admissions was partially due to the COVID-19 pandemic where refugee admissions were suspended, and because of remaining Trump administration policy decisions.[14] These decisions included lowering the refugee admissions cap to 18,000, the lowest since 1980.[15] However, upon taking office, President Biden raised the refugee cap to 62,500 in 2021, then to 125,000 in 2022.[16] In 2023, over 60,000 refugees were admitted to the U.S., restoring refugee admissions to pre-COVID and pre-Trump era policy levels.[17]
ii. Border Activity
President Biden has focused on attempting to regularize arrivals at the border.[18] This has been a critical pillar of President Biden’s immigration policy and has been closely watched given the record-breaking number of arrivals that have been occurring at the U.S.-Mexico border.[19]
Upon taking office, President Biden promised to end the use of Title 42, a provision of the Public Health Service Act, permitting the rapid expulsion of immigrants, including those seeking refuge.[20] The Biden administration’s initial efforts to move away from Title 42 was stunted by legal challenges and other procedural issues. However, in May 2023, the use of Title 42 was ultimately terminated, resulting in a total of 2.8 million expulsions.[21]
Following the termination of Title 42, President Biden implemented numerous “carrot-and-stick” policies.[22] For example, migrants are now required to schedule their arrival at a port of entry through a mobile app administered by the U.S. Customs and Border Patrol.[23] Additionally, the Biden administration has disincentivized irregular border crossings in favor of entry through designated points by making immigrants without a scheduled appointment via the mobile app ineligible for asylum, unless they qualify for one of the very narrow exceptions.[24]
B. Critiques and Challenges Faced by The Biden Administration
Criticism of the Biden administration’s policies are widespread. Some argue that Biden is being too proactive, while others argue that he is not addressing the current issues with sufficient or appropriate action.[25] Critics on the left liken his approach to former President Trump’s, while critics on the right accuse him of being excessively liberal on immigration matters. [26]
In recent news, House Republicans passed an impeachment resolution against Homeland Security Secretary Alejandro Mayorkas, citing that Mayorkas violated the Immigration and National Security Act and failed his duty to the public in controlling the border.[27] However, many political commentators have characterized this move as political gamesmanship rather than a sincere impeachment effort. Aside from partisan politics, the main issue President Biden and his administration is now facing is the bipartisan demand to address the increasing influx of refugees and immigrants into these cities represented by these politicians.[28]
C. Looking Forward at the Biden Administration’s Strategy
President Biden’s recent statements and actions suggest that he may be inclined to scale back some of his progressive immigration policies and border procedures in the coming months.[29] During Biden’s 2024 State of the Union speech he discussed his new proposal aimed at changing the dynamics at the border including hiring more agents, judges, and asylum officers.[30] He also revealed that the new proposal would give him and any forthcoming president the authority to shut down the border whenever they feel the number of migrants is too overwhelming.[31]
III. Analysis
From the inception, Bidens’s approach to immigration appeared more focused on political grandstanding, aiming primarily to reverse the restrictive policies of former President Donald Trump. While it is widely acknowledged that Trump’s immigration policies immigration undoubtedly required change, President Biden’s actions often seemed reactive rather than thoughtful. The Biden administration’s strategy appeared to involve merely reversing the policies of the Trump administration, completely ignoring the opportunity to implement sustainable, new policies. As a result, President Biden now finds himself in political trouble due to the lack of a long term-thinking approach to immigration reform.
President Biden is currently struggling with significant political backlash and bearing the brunt of criticism for the crisis at the border and the strain cities are feeling due to the influx of refugees.[32] In conjunction with this, the upcoming 2024 election is likely to be a rematch of the 2020 election.[33] Donald Trump has been particularly vocal in emphasizing immigration and border issues, as it represents one of the most significant ideological differences between him and Biden.[34] Trump has already promised, if elected, he will launch the largest domestic deportation operation in American history.[35]
Biden is losing the favor with American citizens when it comes to immigration and border issues.[36] Some political pundits have even appraised immigration and the border as Biden’s “biggest potential liabilit[y].[37] A majority of American citizens have not only recently expressed that they trust Republicans over Democrats to handle border issues but are now showing an increased willingness to support a wall being built at the border.[38]
These issues can arguably be traced to some of President Biden’s hastily crafted signature initiatives, which in theory were promising but, in practice, stalled out or were too limited.[39] Once Biden secured the political advantage of passing these initiatives, it seems as though he did not adequately follow up to ensure they were implemented effectively or refined to address emerging challenges.
IV. Conclusion
With his back up against a political wall, President Biden is trying to neutralize this issue during the upcoming election.[40] His strategy, once more, is to implement politically driven policies rather than thoughtful and sustainable ones.[41] President Biden is now seeking to pass sweeping bipartisan measures that will put strict limits on the border.[42] One of the provisions of this bill would give the President the ability to shut down the border and Biden has said he will use it the day the bill goes into effect.[43]
President Biden must handle his reform of immigration and border policies with intentionality and thoughtfulness. He must stop using policies as a form of political grandstanding. President Biden must realize that the lives and futures of millions of people are affected by the decisions he makes – not just his political career. If he continues down this path, even Biden’s own party will begin to lose confidence in him more than they already have.
[1] Jonathan J. Cooper, Biden is left with few choices as immigrations takes center stage in American politics, AP News, (February 2, 2024), https://apnews.com/article/biden-trump-border-immigration-election-c37b1596ecf27d208e94bef592e7e616.
[2] Mimi Dwyer, Factbox: US president-elect Biden pledged to change immigration, Here’s how, Reuters, (January 15, 2021), https://www.reuters.com/article/idUSKBN29K1X0/.
[3] Muzaffar Chishti, Kathleen Bush-Joseph, and Colleen Putzel-Kavanaugh, Biden at the Three-Year Mark: The Most Active Immigration Presidency Yet Is Mired in Border Crisis Narrative, Migration Policy Institute, (January 19, 2024). The Biden administration has already out-paced the Trump administration which took 472 immigration-related actions over the course of his entire four-year presidency.
[4] Id.
[5] Chishti, supra note 3.
[6] Id.
[7] Nick Miroff and Toluse Olorunnipa, Biden pledge to shut down border points to policy short falls, The Washington Post, (January 27, 2024), https://www.washingtonpost.com/immigration/2024/01/27/biden-immigration-policy-trump/.
[8] Chishti, supra note 3.
[9] Id.
[10] Id. Enforcement priorities are a way to target the law to only a select few categories of immigrants, instead of all illegal immigrants in general. Biden has focused his enforcement priorities on the arrest and removal of noncitizens who pose a threat to public safety, national security, or border security.
[11] National Archives Foundation, Refugee Act of 1980, https://www.archivesfoundation.org/documents/refugee-act-1980/ (last visited Mar. 20, 2024).
[12] Id. When the Act was passed the refugee ceiling was raised from 17,400 and 50,000.
[13] Manuel, supra note 11.
[14] Id.
[15] Manuel, supra note 11.
[16] Id.
[17] Veera Korhonen, Refugee admissions in the U.S. FY 1990-2023, Statista, (November 17, 2023), https://www.statista.com/statistics/200061/number-of-refugees-arriving-in-the-us/.
[18] Chishti, supra note 3.
[19] Id.
[20] Uriel J. Garcia, Here’s what you need to know about Title 42, the pandemic-era policy that quickly sends migrants to Mexico, The Texas Tribune, (May 8, 2023), https://www.texastribune.org/2022/04/29/immigration-title-42-biden/.
[21] Chishti, supra note 3.
[22] Id.
[23] Chishti, supra note 3.
[24] Id.
[25] Chishti, supra note 3. Immigration advocates notably were worried that President Biden’s “…border posture was little different than Trump’s”.
[26] Id.
[27] Chairman Mark Green, Why We Impeached Alejandro Mayorkas, Wall Street Journal, (February 14, 2024), https://www.wsj.com/articles/why-we-impeached-alejandro-mayorkas-executive-branch-can-t-defy-the-law-1dc83d55?mod=opinion_lead_pos11.
[28] Cooper, supra note 1.
[29] Franco Ordonez, Biden spars with Republicans on border security during State of the Union, NPR, (March 8, 2024), https://www.npr.org/2024/03/08/1236247359/biden-state-of-the-union-address-immigration-border-marjorie-taylor-greene.
[30] Id.
[31] Ordonez, supra note 30.
[32] Miroff, supra note 7. “The latest influx has worsened strains on New York, Chicago, Denver and other cities whose Democratic mayors are pleading for more federal aid to shelter and assist the newcomers, including the thousands of migrants sent by Texas Gov. Greg Abbott (R).”
[33] Cooper, supra note 1.
[34] Ordonez, supra note 30.
[35] Id.
[36] Id.
[37]Cooper, supra note 1.
[38] Ordonez, supra note 30. 53% of American support building a border wall – the highest percentage since Donald Trump’s initial 2016 campaign.
[39] Miroff, supra note 7.
[40] Cooper, supra note 1.
[41] Id.
[42] Ordonez, supra note 30. “It was a deal that the progressive wing of Biden’s party opposed, but it also allowed him to present himself as being tough on the border”
[43] Miroff, supra note 7.
