In his first 100 days, President Biden has sounded many of the right notes on immigration. But it remains to be seen if he will live up to his mandate and bring humanity and fairness to our immigration system.
By Omar Jadwat and Manar Waheed
One hundred days ago, President Joe Biden took the helm of a decimated immigration system, which candidate Biden had promised to restore. The lives and safety of millions of people, and the lawfulness and moral standing of our country, depend on the president’s ability to deliver on that promise. But 100 days later, his record is decidedly mixed.
The Trump administration exploited and abused executive powers in our immigration laws to an unprecedented degree, aiming to harm Black and Brown communities. He deliberately destroyed the United States’ ability to effectively process asylum claims and admit people with legitimate claims to protection — people who we’ve been proud to welcome as future Americans under U.S. law. The impact of his ruthless actions is still being felt along the border and in communities across the country and the globe.
In the first 100 days of his administration, President Biden has often hit the right notes and his administration has begun to unwind some of the most noxious aspects of Trump’s legacy. But on far too many issues, the Biden administration has continued or only temporarily paused Trump policies — at the risk of perpetuating a new, Trumpian normal, with devastating human costs.
This must change.
Now is the time for Biden to use his executive authority and his presidential bully pulpit to do what voters elected him to do: reverse Trump’s anti-immigrant agenda, and do everything within 
his power to bring humanity and fairness to our immigration system.
At the 100-day mark, Biden’s to-do list is still long. Here is a status report on the progress that’s been made, the promises that have been broken, and the work still left to do on some of the most urgent immigration priorities.
REBUILDING ASYLUM AND HUMANE BORDER POLICIES
The Trump administration made it nearly impossible for anyone to receive asylum, no matter how strong their claim, even though this fundamentally important right to protection from persecution is guaranteed in federal law. President Biden committed to restoring our asylum system, and has emphasized the need to treat people humanely and with dignity. But progress has been far too slow and the asylum system remains shut down to most people who are seeking protection.
- Biden suspended Trump’s illegal “Return to Mexico” policy, but must act more quickly to permanently rescind the policy and address its harms. Trump’s so-called Migrant Protection Protocols (MPP), which forcibly returned thousands of people to dangerous conditions in Mexico, rather than allowing them to pursue their asylum claims from within the U.S., was illegal, as we established in court; it was also a humanitarian disaster. MPP denied people a meaningful opportunity to obtain asylum, while forcing them to remain in places where they were — entirely foreseeably — targets of kidnapping, rape, torture, and other abuse. President Biden suspended this policy pending a formal review and began a program to bring those subjected to MPP back to the U.S. The operation has offered dignified treatment to many who have made it back, but the administration must pick up the pace and commit to full redress for all migrants harmed by this policy, many of whom remain severely traumatized by their experiences under MPP. It must also commit to permanently rescinding the policy and to not reinstituting a similar policy in the future.
- Biden has largely continued Trump’s illegal misuse of “Title 42” public health authority to expel people seeking asylum. Like Trump before him, Biden is relying on Title 42 to illegally bypass the immigration laws and expel asylum seekers and migrants without a fair process, pushing them back into perilous conditions in Northern Mexico or flying them directly into harm’s way and political turmoil — indeed, according to a recent report, the Biden administration has used Title 42 to send more migrants back to Haiti over the course of several weeks than the Trump administration did in a whole year. Biden must stop these dangerous Title 42 expulsions and rescind this policy, which was never justified on public health grounds and has always been illegal, as the ACLU and its partners have established in several lawsuits.
- Unlike Trump, Biden is not expelling children at the border, but must do more to ensure safe and humane treatment. Biden did not continue the Trump administration’s unlawful policy of expelling unaccompanied children — a crucial decision for which it deserves credit. And the Biden administration has marshaled resources across agencies to temporarily house children while their placement with sponsors is vetted. However, the Biden administration must do more to get children out of CBP custody; to rapidly expand capacity within licensed, small-scale shelters; and to safely release children to sponsors without unnecessary delay.
- Biden suspended construction of the border wall – but continues Trump’s lawsuits against landowners. As a candidate, Biden promised “not another foot of wall” during his administration. President Biden appeared to make good on that promise, announcing on day one that his administration would immediately suspend construction. But Biden has not yet issued a promised report on Trump’s illegal transfer of military funds for wall construction, and has only “paused” wall construction that the ACLU and Sierra Club successfully blocked in lower courts — a case that is now in the Supreme Court. The federal government has continued litigation initiated by the Trump administration against landowners, and in April, a federal judge awarded the Biden administration title to property owned by South Texas landowners. It is imperative that the Biden administration return the property, withdraw the eminent domain cases initiated by the Trump administration, and take steps to repurpose or terminate wall projects and to mitigate the severe harms caused by the Trump administration’s illegal and rushed construction through public lands.
- A task force is not enough: Biden must address the irreparable trauma inflicted by Trump’s family separation policy. On February 2, Biden issued an executive order creating the Family Reunification Task Force with a broad mandate and a commitment to reuniting families in the U.S. However, the Biden administration has yet to reunite a single family in the U.S., and thousands more families continue to suffer from the trauma this policy inflicted. Every family torn apart by this policy must be reunited in the U.S. without delay, and be given the citizenship, care, and resources they deserve.
ENDING ICE ABUSES
Immigration and Customs Enforcement (ICE) has targeted immigrant communities and engaged in repeated and systemic civil rights violations. Biden must act swiftly to end these abuses once and for all, and fully break from the racist and unfair policies of the past.
- ICE has continued to deport thousands. President Biden issued a 100-day deportation moratorium on day one, but the moratorium only covered certain deportations and, as it turned out, it was blocked by a federal court in response to a lawsuit from the Attorney General of Texas (the ACLU intervened in the case). And throughout the last three months, ICE has continued to deport thousands of people, in many cases flying them directly into harm’s way. The Biden administration has the authority to immediately halt these expulsions, which disproportionately impact Black and Brown immigrants, and it must do so.
- ICE arrests have fallen dramatically overall, but Black and Brown immigrants continue to be disproportionately targeted. ICE arrests have dramatically fallen in the first months of the Biden administration. However, the Biden administration’s immigration enforcement guidelines have continued to import the racial bias of the criminal legal system, leading to the disproportionate deportations of Black and Brown immigrants. We are urging the Biden administration to change its policies to prioritize keeping families together and giving people a fair chance to pursue legal relief.
- Biden has yet to end programs that co-opt local law enforcement as “force multipliers” for ICE. During his campaign, then-candidate Biden voiced his concern about ICE programs that rely on state and local law enforcement to conduct federal immigration enforcement, including ICE detainers and the 287(g) program, which is notorious for encouraging racial profiling and undercutting trust between local law enforcement departments and immigrant communities. The Biden administration must end these programs, which were a key enabler of the Trump administration’s turbocharged deportation agenda.
- Immigrants are still languishing in detention for no good reason. Although ICE set up a new case review process that purports to provide new avenues for people to challenge their unjust detention, immigrants are still languishing in ICE detention, including in facilities with horrific records of abuse and detention centers located in remote areas with poor access to legal counsel and medical services. Many of these immigrants are subjected to detention without any hearing before an impartial immigration judge. Thousands of people could be safely released to live at home while navigating their cases. With lower arrest rates, the Biden administration has a historic opportunity to shutter these ICE facilities.
UNDOING HARM TO MUSLIM, ARAB, BLACK, MIDDLE EASTERN, AND SOUTH ASIAN COMMUNITIES
- Biden rescinded the Muslim Ban and its expansion targeting Africans, but has failed to provide relief to many of those harmed. President Biden rescinded Trump’s Muslim ban and its expansion targeting Africans on day one of his administration. However, the Biden administration has failed to make whole those who have been impacted by this ban for four years. Thousands of diversity visa lottery winners were stripped of their precious opportunity to come to the U.S. solely because of the ban, but the administration has not done anything to remedy their situation. Additionally, most people denied other visas under the Trump administration will have to reapply, pay new fees, and go through another excruciating wait, rather than reopening their applications. These decisions threaten to forever prevent thousands of Black and Brown immigrants who meet all of the legal requirements to immigrate to the U.S. from doing so, perpetuating the effects of the discriminatory bans.
- Biden’s flip-flopping on refugee admissions continues to harm people around the globe. Candidate Biden promised to prioritize refugee admissions and return the country to its global leadership position as a haven for those fleeing persecution. Unfortunately, he quickly betrayed that promise when the administration announced it would keep refugee admissions for Fiscal Year 2021 at Trump’s historic low. Following public and congressional outrage, the White House claims that a “final, increased refugee cap” for this fiscal year will be determined by May 15. Whether Biden will follow through on this new promise remains to be seen.
PASSING CITIZENSHIP LEGISLATION
The American people soundly rejected the hateful and divisive anti-immigrant policies pursued by the Trump administration. Now it’s imperative for Biden and Congress to seize on this momentum to finally get citizenship legislation done.
- Biden has proposed landmark citizenship legislation, but must press harder on Congress to act. On day one of his tenure, President Biden proposed immigration legislation creating pathways to citizenship and legal residency for millions of undocumented Americans. Biden’s immigration legislation — and the long-debated Dream Act — are now waiting for action by Congress, even as the country braces for a decision in litigation concerning the Deferred Action For Childhood Arrivals (DACA) policy. A negative decision will jeopardize the livelihoods of more than 800,000 people who have long called this country home. It is long past time for Dreamers to be out of limbo and on a path to citizenship. The Biden administration must work with Congress to pass citizenship measures, including through the reconciliation process.
From economic relief to infrastructure, the Biden administration has been praised for its boldness in doing the right thing, and for refusing to temper its aspirations or retreat from its values for the sake of mollifying extremists on the opposing side.
That same bold leadership and moral clarity is needed now on the issue of immigration. Far-right politicians are mimicking Trump’s extremist and racist rhetoric in a cynical appeal to their base. Biden should ignore them. Biden has the power to make good on his promises to fix this broken system and build a future where all are welcome and all are free. He must use it.
Omar Jadwat is Director of the ACLU Immrants’ Rights Project. Manar Waheed is Senior Legislative and Advocacy Counsel for the ACLU.
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For another side to this story:
Joe Biden needs to stop lying about the cause of the border crisis and start fixing it
https://nypost.com/2021/05/01/joe-biden-needs-to-stop-lying-about-the-cause-of-the-border-crisis-and-start-fixing-it/
Not saying I agree with this or the VG articles – and on some points they agree. Rather, offering another view on this very complex issue. Both articles definitely agree Biden isn’t doing the ‘right’ thing, be it right or left.
One thing is true: Lives do depend upon it – as long as they have reason to believe that it’s worth the risk and cost:
https://www.cnn.com/2021/05/02/us/san-diego-boat-accident/index.html
Have you seen the murder rate and abject poverty in some of the countries they are coming from?
No.
Have you seen the murder rates in parts of this country? (Which probably includes the locations that illegal immigrants end up in.) Regardless, how would you know if this is the reason for most illegal immigration? Are they murdering children in mass, in those countries? And, is this the reason that some parents are sending unaccompanied children over the border, to meet-up with relatives in the U.S.? (Some of whom no doubt are here illegally, themselves?)
There’s a lot of bad stuff occurring in the world, including in countries which are separated from the U.S. by oceans (and don’t lend themselves to illegal border crossings).
I’d suggest that immigration policy should generally not be based upon what’s occurring in other countries.
And if policy is not clear, you will witness more disasters – such as the boat incident.
“Have you seen the murder rate and abject poverty in some of the countries they are coming from?”
Yes, I have. Almost 10 years ago I was on a medical outreach to Honduras. Although I do not know the murder rate, I do know the abject poverty and danger first hand.
The compound where the largely economic orphanage of well over 100 children and the medical outreach base and camp were held was heavily guarded by the military. We went out in convoys to protect us and our equipment from armed groups of thugs. We had to make the trip leaving the compound at sunrise so we could be back before dark. No one ever went outside the compound after dark…for any reason.
I would not ever blame any parent who had the opportunity to try to get their child out of those circumstances. I suspect it has only gotten worse although I am no longer in touch with my escort.
I wonder if anyone is advocating for the elimination of cash bail etc., there. 🙂
Why is it that I suspect that there’s “real” policing problems, there? Unlike the nonsense we constantly hear on this blog and elsewhere?
Nor would I. Nor would I have children, under those circumstances – with a plan of subsequently dropping them over a 14-foot border wall (or paying someone to do that). Or, setting them free, in the desert. But apparently, that’s just me.
Apparently, some things never change.
“ Nor would I have children, under those circumstances “
Before you become too self righteous about how you would abstain from having relations, you may not be aware that the Honduran government, at that time I was there had, knowing that the economic orphanages were unsustainable, had made IUD’s free to any women who would accept one. BCP were a nominal cost even for the women there. A more practical solution would be to have offered free vasectomies, but that does not have seemed to occur to them. What a surprise.
I have no idea what the policies are now.
The US has a lot of responsibility for the instability and violence in the countries of Central America. We helped to create the conditions that are causing people to flee. Any quick review of our history in the region, especially since WWII, would be a useful starting point for discussing the immigration waves from Guatemala, Honduras, and El Salvador.
Those three countries have twice the murder rate than the worst areas of the US and 18 times the overall murder of the US.
How about if either of you put forth a figure regarding the total amount of illegal (and/or legal) immigrants the U.S. should accept (breaking it-down by country of origin, as well).
And, would that stop immigrants from abandoning their kids in the desert, dropping them over border walls, or dying in the Rio Grande or off the coast of San Diego?
And would that improve the situation for those “left behind” in those countries?
Biden just announced he was increasing the refugee cap from 15,000 to 62,500
Well, that should “do the trick”, then.
Problem permanently solved. 🙂
Probably can tear down all walls and fences, checkpoints, and do-away with border partrol and ICE. (Actually, I think there may be ways to accomplish some of that, without allowing an unlimited flow of immigrants into the U.S. But, not from dangling-out eventual citizenship or other benefits.)
Frankly (but I’m not), the U.S. is moving in the opposite direction, instead.
Is there a recall petition yet? 🙂
Not sure what the trick is – it’s clear we need to create a better system and the refugee cap was creating a bottleneck.
A recall for what?
He’s maxed out on comments on this thread.
Just a reminder: there is a limitation on comments per article—five comments per article per commenter.
Biden “must” not do anything…
Biden ‘should’ or be ‘encouraged to’ do things… the sheer arrogance in the headline is palpable… and in the text,
The President, administration, and both house of Congress should move, sooner than later, to enact a comprehensive (not ‘knee-jerk’) reform package to immigration (what a concept!) issues, both current and future… a lot of damage has been done, but to an already damaged set of policies/laws.
Yeah, I have issues with telling others what the HAVE to do… imperative, just like ‘must’, or ‘shall’…
The good points of the article are weakened strongly by the arrogant, demanding words used… to make my point, they, and the VG MUST NOT use the word “must”… one cannot fault my use of the word, without my faulting the other…