The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Biden administration has done a great deal of good in reversing many of Trump's anti-immigrant policies. Examples include ending Trump's anti-Muslim travel bans, terminating or allowing to expire the previous administration's bans on most immigration and work visas (adopted under the pretext of combating the Covid pandemic), revoking the border "emergency" declaration and the accompanying diversion of federal funds to build the wall, and fully reinstating DACA. The administration has also laid out an ambitious legislative agenda to legalize most current undocumented immigrants living in the United States, and make it easier for many new immigrants to enter. Even if that agenda is unlikely to pass anytime soon, it still serves a valuable function in moving the "Overton window" on political debate.
The above list – which isn't exhaustive – should give pause to those (including some libertarians) who claim that Biden's immigration policies are no better than Trump's. But it is also true that there are several immigration issues on which Biden has so far fallen woefully short.
Perhaps the most egregious is the administration's decision to break the president's promise to raise the annual refugee admission ceiling to 125,000 (62,500 for the rest of the current fiscal year) [but see update below]. Instead, Biden will keep in place Trump's historically low ceiling of 15,000, albeit while dropping the latter's restrictions on admission of refugees from many African and Muslim-majority nations. This decision may even lead Biden to break Trump's record for having the lowest refugee admissions ever. Liberal Washington Post columnist Catherine Rampell summarizes:
Biden has spoken warmly of immigrants in general and refugees in particular…. Shortly after taking office, he announced plans to rebuild the refugee resettlement program, which had been hobbled by years of successively lower refugee admissions ceilings set by Trump. Biden said this process would begin by quadrupling the record-low ceiling that Trump had set for fiscal 2021 (taking it from 15,000 to 62,500)….
Biden announced all this in early February. His State Department submitted a detailed report to Congress on the new ceiling and eligibility criteria days later. State Department officials began booking flights for refugees who had been waiting for years — people who had been fully screened for national security and public health concerns and deemed ready to go.
Then, astoundingly, Biden blocked his own policy from taking effect.
Without explanation, Biden never signed the paperwork, called a "presidential determination," legally necessary to lift Trump's restrictions. So, roughly 715 desperate refugees whose travel arrangements were made by Biden's own State Department — many of whom had given away their possessions and vacated their homes in anticipation of relocation — had their tickets abruptly canceled.
There is no justification for this reversal, and the administration hasn't offered any kind of policy rationale for it. For some of the refugees barred by the decision, the issue is literally a matter of life and death. At the very least, they will be condemned to spend many more months under conditions of severe privation.
The media reports anonymous White House sources indicating that it was caused by fear of "political optics" relating to the situation at the southern border. In reality, the refugee policy has no connection to the border situation, because the refugees are not crossing that border, and would not be undocumented migrants, having been already vetted and approved for entry. The administration's fear of political backlash – if that is indeed the cause of the reversal – is also grossly overblown. In reality, few Americans even know what the refugee limit is (surveys consistently show most have no idea how much immigration there is in general and other fairly basic aspects of immigration policy), and those few who both know and would be angry about the administration's decision to raise it are likely to be hardcover immigration restrictionists whose support Biden is highly unlikely to get, short of fully embracing a Trumpian agenda across the board.
The problems at the border that may have spooked the administration on the refugee cap are themselves largely a consequence of another flawed Biden policy: the decision to keep in place Trump's Title 42 policy of expelling nearly all migrants at the southern border, while making an exception for unaccompanied minors. Predictably, this has led to both a surge in crossings by lone minors and continued undocumented migration elsewhere, as there is almost no way for adult migrants and intact family groups to cross legally.
Biden has perpetuated the Title 42 order despite the fact that it is of dubious legality and do not actually benefit public health. It was enacted by the Trump White House over the opposition of CDC scientists, who believed it to be unnecessary. As Cato Institute immigration policy expert David Bier explains, Biden could easily address these problems by rescinding the Title 42 expulsion order, and reopening ports of entry.
A third area where the administration has fallen short is its failure to fully terminate lawsuits seeking to seize property for border wall construction through the use of eminent domain, despite the president's campaign promise to do exactly that. Just two days ago, a federal court upheld one such condemnation, allowing it to go forward.
These takings were initially begun under the Trump administration. To my knowledge, the new administration has not initiated any new border wall eminent domain cases. In addition, the termination of Trump's emergency declaration and accompanying funding diversions has led to the end of wall construction efforts in areas where the diverted funds were being used. Thus, overall, Biden's record here is still a major improvement on Trump's.
Nonetheless, the administration can easily improve further simply by terminating all border wall takings, including those unrelated to Trump's emergency declaration. The federal government can terminate ongoing eminent domain cases anytime it wants. No law prevents it from doing so. The administration could also potentially return at least some of the previously seized land to its rightful owners.
The Justice Department claims to have been surprised by the recent district court border wall decision, because its lawyers had asked for continuances in all ongoing border wall takings cases. Even if this is true, they could and should have avoided this problem by simply terminating these cases entirely, not just seeking continuances.
Finally, David Bier highlights another Biden immigration policy failure that has received far less public attention than the three discussed above. But it is an important one nonetheless:
President Biden ended President Trump's immigrant visa ban and allowed his nonimmigrant visa ban to expire on April 1. While this is progress, the president is inexplicably keeping 76 percent of consulates fully or partially closed to routine visa processing, affecting about 71 percent of all visa applicants. The consulate closures are acting as a de facto ban on legal immigration and travel, even though all travelers to the country must receive negative COVID-19 tests and more than 551 million doses of the vaccine have already been administered outside the United States….
As of April 8, 2021, just 57 of 237 visa processing sites around the world (24 percent) were fully operational for nonimmigrant visa applicants, and just 97 (41 percent) allowed anything other than emergency applications (Table 1). Even many open sites have massive wait times for visas. The average wait was 95 days for a visitor or business traveler visa, but 31 percent of sites open for those visas had waits longer than 4 months, and 22 percent had waits longer than 6 months….
As Bier explains, there is no good reason to continue these visa restrictions at a time when State Department employees are being vaccinated, and the administration has multiple perfectly legal ways to restart visa processing without requiring in-person interviews (Bier describes them in detail).
In sum, Biden's immigration policy is already a massive improvement over Trump's. There are likely to be further improvements in the future. For example, the administration may well eventually raise the refugee ceiling and expand visa processing as the pandemic continues to recede.
But being better than Trump on immigration – even vastly better – is a very low standard of comparison. On multiple fronts, the new administration is unnecessarily perpetuating cruel Trump-era policies, thereby inflicting needless suffering on migrants, refugees, and even American property-owners along the southern border. Each of the policies discussed above could easily be changed without passing any new legislation (most were enacted through unilateral executive actions in the first place), and without much, if any, political risk.
Immigration advocates should recognize the good the Biden administration has done. But they should also press as hard as possible for it to end more of the evil.
UPDATE: After an upsurge of criticism by immigration and refugee advocates, the White House now says they will not make a final determination about the refugee cap until May 15. But it is far from clear they will actually stick to the original promise to set the cap at 62,500 for the remainder of the fiscal year, and 125,000 per year, thereafter:
Psaki said that Biden would actually set the final cap — which sets the refugee allotment through the end of September — by May 15, and that while the White House expects it will be higher than Trump's ceiling, it was "unlikely" to rise to the 62,500 that Biden had put forward with some fanfare in February.
It's good that immigration advocates forced the administration to backtrack on the apparent decision to maintain the ludicrously low Trump cap. But they should keep up the pressure to ensure Biden at least keeps his original promises.