What Joe Biden’s Election Means For US Asylum and Migration Policy

Daniela Movileanu
What Joe Biden's Election Means For US Asylum and Migration Policy
Activist Carlos E. Rojas Rodriguez confronts Joe Biden in South Carolina about the candidate’s stance on deportations. (AP / Meg Kinnard)

President-elect Joe Biden will inherit from the Trump administration a limping immigration system, which separates children from their families and keeps migrants stranded in Mexico while they await their asylum decisions. Biden has pledged a sweeping overhaul of Trump’s restrictionist agenda, both domestically and internationally, but he might face many challenges along the way.

DOMESTIC REFORM

Restricting access to protection and downgrading asylum seekers’ rights in order to deter arrivals to the US has been a trademark of the Trump administration. Since 2018, Trump has gradually narrowed the criteria for asylum eligibility and barred people from applying for protection in the US if they did not already have a negative asylum application in one of their transit countries.

At the same time, the so-called “family separation” and “remain in Mexico” policies have, respectively, separated over 5,000 children from their accompanying adults – referred for criminal prosecution for entering the US illegally – and left over 68,000 people in dangerous conditions in Mexico while they awaited the court’s verdict, which has been positive in less than 0.1% of the cases.

On the other hand, asylum seekers awaiting their asylum decisions in the US have seen their rights restricted, especially during the pandemic period. In mid-2020, for instance, Trump limited work permits for asylum seekers and removed the 30-day deadline for the US Citizenship and Immigration Services (USCIS) to authorise employment for asylum seekers, two measures which make it difficult for people to support themselves while they await the court’s verdict.

What Joe Biden's Election Means For US Asylum and Migration Policy
Protesters rally in front of an ICE detention facility on the National Day of Action for Children on June 1 in Florida. Photo: Joe Raedle/Getty Images

The measures which Biden has promised to take in order to reverse the country’s restrictive turn in immigration policy include:

  • Ending the cruel practices of separating families and leaving asylum seekers stranded in Mexico;
  • Reintroducing the Deferred Action for Childhood Arrivals (DACA), which protects young undocumented migrants from deportation;
  • Ensuring accountability for inhumane treatment by law enforcement personnel;
  • Stopping the criminalisation of unauthorised entry into the US;
  • Regularising the status of most of the US’s estimated 11 million undocumented population.

THE US-MEXICO BORDER

The most visible trace of Trump’s restrictionist agenda, however, can be found at the US-Mexico border. According to figures from October 2020, the Trump administration has reinforced the pre-existing 654-mile (just over 1,000km) border barrier and built an additional 15-mile (24km) fence, meaning the border barrier now covers a total of 669 miles (1,076km).

The wall is part of a $15-billion plan to build a barrier along the border’s entire 2000-mile (around 3,000km) length, which was the flagship of Trump’s 2016 election campaign. To secure funding for the wall in 2019, Trump decided to bypass Congress by declaring border control a national emergency and appropriating around $10 billion from the Department of Defense.

What Joe Biden's Election Means For US Asylum and Migration Policy
US-Mexico Border Barrier. Source: BBC

Biden has promised to end the “constitutionally dubious” national emergency that makes use of defence funding to build the border wall. He plans instead to direct national resources to screening infrastructures and “smart border enforcement” technologies. These efforts would be complemented by increased cross-agency cooperation with Mexico and Canada.

INTERNATIONAL AND REGIONAL COOPERATION

Under Trump’s nationalistic agenda, migration management has been seen as a matter of national sovereignty to be dealt with unilaterally. In 2018, for example, the US refused to commit to the Global Compact on Safe, Orderly and Regular Migration (GCM), an international agreement approved by 152 countries and negotiated under the auspices of the United Nations to tackle multiple aspects of migration globally. The GCM, from the US’s perspective, was “inconsistent with US immigration and refugee policies and the Trump administration’s immigration principles”.

Regionally, Trump used the threat of tariffs to coerce countries in the immediate neighbourhood of the US to cooperate on migration control. In 2019, this strategy made it possible to sign an agreement with Mexico which reinforced the Remain in Mexico policy and bound the Mexican government to step up controls at its southern border with Guatemala. Likewise, from July to September 2019, El Salvador, Guatemala, and Honduras signed bilateral agreements where they committed to accept some asylum seekers sent back from the US.

Donald Trump and Mexico’s President Andrés Manuel López Obrador arrive at the White House in Washington on 8 June 2020. (AP/Evan Vucci)

Biden plans to step up the US’s involvement in global migration management and restore friendly relations with neighbouring countries. He will likely increase resettlement pledges, which have reached a historical low under the Trump administration, and, according to some experts, join the GCM. At the regional level, he intends to restore friendly relations with neighbouring countries and end Trump’s bilateral agreements. In short, Biden can be expected to strike a fair balance between migration control and humanitarian policies.

POTENTIAL CHALLENGES

Despite all of its good intentions, the Biden administration’s ability to pass swift reforms will depend on several factors, such as the balance of power in Congress. As many commentators point out, if Republicans retain their majority in the Senate, they will likely block most of Biden’s proposed reforms. A further obstacle to immigration reforms is the fact that the Biden administration will prioritise other policy areas, most notably recovery from the COVID-19 pandemic, climate, trade, and foreign policy.

Given the far-reaching overhaul that the country’s immigration system needs and the many obstacles, it seems likely that a good number of Trump’s policies will continue to determine the fate of people seeking refuge and safety in the US in the coming years.

As we think about ways for the US to regain its leading role in the global refugee regime and build a humane domestic immigration system, it is worth considering a few questions:

  • Will the Biden administration start passing immigration reforms that do not require support in Congress?
  • Will it be able to bring immediate relief to migrants and asylum seekers affected by the COVID-19 pandemic?
  • If the US’s domestic and global immigration policy remains unchanged in most aspects, what will be the consequences for migrants’ rights?

Further reading

Jordan, M., & Kanno-Youngs, Z. (2020). “Biden says he cannot quickly undo Trump’s immigration policies.” The New York Times.

Kumar, A., & Ollstein, A. M. (2020). “Biden pledged to undo Trump’s immigration policies. It will take time.” Politico.

Meissner, D., & Mittelstadt, M. (2020). “At the Starting Gate: The Incoming Biden Administration’s Immigration Plans.” Migration Policy Institute.

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