How Will the Results of the 2020 Election Affect the Enforcement of Immigration Laws in the United States of America?

Post by Hallam Tuck, DPhil Candidate at the Centre for Criminology.

On Saturday, November 7^th, four days after voters across the country went to the polls, media outlets including the Associated Press and the New York Times declared that Joseph Biden had won the 2020 US Presidential election, defeating the incumbent President Donald Trump. On hearing the election results, a group of asylum-seekers stranded in Matamoros, Mexico under the Trump Administration’s Migrant Protection Protocols (MPP) raised a series of balloons spelling out ‘Bye Trump’ along the Rio Grande river, facing Brownsville, Texas. Jose Lopez, a 45 year-old asylum-seeker from Nicaragua who had been forced to wait for his hearing for more than a year, told the journalist Adolfo Flores that ‘we thought we were invisible to the world, but we weren’t to God. We’re overjoyed right now.’ Conversely, the stock prices of GEO Group and CoreCivic, the two largest private prison and detention corporations, fell precipitously and immediately in the days after the election. GEO Group stock lost roughly 13% of its value in the three days after the election, while CoreCivic stock lost more than 20% percent. This decline in the value of the corporations responsible for privatized confinement reflects a dramatic change from the recent past, when CoreCivic CEO Damon T. Hininger declared record revenue during a Third Quarter earnings report for the 2019 fiscal year. As the legal scholar César Cuauhtémoc García Hernández has written on his blog, the Biden-Harris campaign’s commitment to ‘end for-profit detention centers’ would seem to spell difficulties for both companies.

Attention has quickly turned to how the President-elect will re-shape the Federal Government and the nation’s immigration system. Surveying the proposed agenda of the Biden Administration, Politico suggested that the shift in border control and immigration policy will prove to be the ‘most dramatic and immediate reversal’ between the Biden Administration and the Trump Administration. Both the future of the adjudication of asylum claims at the US-Mexico border, and the fate of the Federal government’s use of private contractors for immigration detention, are two disparate examples of how high the stakes are. As the scholars Adam B. Cox and Cristina M. Rodríguez have observed, the unique distribution of power over immigration law and policy within the political branches of the Federal government limits the regulatory power of the Judiciary and delegates significant authority from Congress to the President. In short, as President-elect, Joe Biden will have significant power to change the US immigration system. As scholars of Border Criminology, it is worth considering what a Biden-Harris administration might mean for border control and the enforcement of immigration laws in the United States. As President, Donald Trump has given an enduringly American form of racist nativism a new coat of paint, presiding over the most publicly anti-immigrant administration since the 1920s. What then could, and should, come next?

In a primary sense, undoing all of the changes wrought by the Trump Administration is unlikely to be easy or simple. Changes to the asylum system are a good example of how difficult revoking Trump-era policy may prove. The scholar Lindsay M. Harris has outlined six primary ways in which the Trump administration has worked to undermine and reduce access to asylum. These changes include executive actions, guidance implemented by the Department of Homeland Security (DHS), decisions issued by the Attorney General, and bureaucratic shifts in the processing and administration of asylum claims. While much of this change has occurred without congressional approval or oversight, it will not be easy to undo. Policies established through executive action or under Title 42 of the Public Health Act, such as the joint guidance issued by the Center for Disease Control and DHS in March which effectively bars entry to all migrants at the US-Mexico border, should prove quickly reversible. For others, such as the myriad changes to asylum regulations issued through a lengthy process known as ‘notice and comment’, or Biden’s commitment to improve regulatory oversight of the way US Customs and Border Protection officials and Asylum officers handle the credible fear interview process, it will not be so easy. Overall, it is clear that meeting these goals will require protracted political, administrative, and fiscal commitments from a number of Federal agencies including DHS and the Department of Justice.

Beyond the question of whether repealing the Trump Administration’s immigration policies is possible lies a much larger and more difficult question- what should come next? The Biden campaign’s immigration platform, as well as the immigration recommendations produced by the Biden-Sanders Unity Taskforce for the Democratic National Convention, give us some indication of the President-elect’s plans. Commitments such as a moratorium on deportations during the first 100 days of the administration, an immediate end to prolonged immigration detention and the MPP program, and the instatement of an expanded version of Obama-era enforcement priorities for ICE suggest an effort to pursue a more progressive, humanitarian approach to immigration enforcement. Yet, the Biden campaign’s efforts to reach out to moderate Republicans- alienating the progressive wing of the party- suggests that the new administration might be willing to compromise on these commitments. Moreover, advocates have criticized Biden’s reliance on Obama-era advisors responsible for many of the most punitive aspects of Obama’s immigration policy

More broadly, determining what the future of the US immigration system should look like requires an honest appraisal of immigration enforcement’s past history. Many pundits and political figures have portrayed Trump-era immigration enforcement as an aberration, a radical departure from a liberal immigration system whose arc has bent broadly towards justice. Writing in The Atlantic in 2018, Franklin Foer declared that ‘ICE, as currently conceived, represents a profound deviation in the long history of American immigration.’ Foer is certainly correct that the Trump Administration has elevated previously fringe nativist, far-right figures such as Jeff Sessions, Stephen Miller and L. Francis Cissna to unprecedented heights. Yet, this framing obscures the extent to which our present, indelibly racist systems of mass detention and deportation have deep, bipartisan roots.

In 2014, at the same time as President Obama famously declared that the Federal government should seek to deport ‘felons, not families’, his administration employed the rhetoric of criminalization to detain and deport unprecedented numbers of people. While President Trump pledged during the 2016 campaign to deport millions of unauthorized immigrants, his administration removed less than half as many people during its first three fiscal years than the Obama administration did during the same timeframe. Where the Obama Administration presided over a system of Federal immigration enforcement that held significant power to collaborate with local authorities, Trump’s efforts have been hamstrung by a series of lawsuits that limited ICE’s authority to hold and apprehend non-citizens from local and state criminal custody, and the growing recalcitrance of local governments who were previously happy to collaborate with Federal immigration authorities under the Obama administration. In fiscal year 2011, jurisdictions across the country who actively participated in Federal-Local collaboration efforts, such as Secure Communities and 287(g), helped ICE to remove more than 200,000 people from the nation’s interior. By comparison, during fiscal year 2017, ICE removed fewer than half as many people through similar enforcement efforts.

The legacy of the Obama Administration raises questions about how the President-elect will approach immigration enforcement. As a key ally of the Clinton Administration in the Senate during the 1990s Biden was a passive supporter, if not an active participant, in the implementation of laws and policies that led directly to the militarization of the US-Mexico border, and entwined the systems of criminal justice and immigration control. Indeed, Joe Biden repeatedly voted to support the legislation that created the modern ‘crimmigration’ system, including the 1986 Anti-Drug Abuse Act, and the 1996 Antiterrorism and Effective Death Penalty Act and Illegal Immigration Reform and Immigrant Responsibility Act.

While the Biden campaign has actively disavowed the Trump administration’s border control policies, it is not clear what will be put in their place. Writing in the magazine ProPublica, the journalist Dara Lind has outlined the tensions within the Biden camp over efforts to deter migrants and asylum-seekers from entering the United States. On one hand, deterrence has been the central, bitter feature of the Trump Administration’s immigration policy. This has been very publicly visible in the construction of the border wall, the creation of the MPP program, and COVID-19 guidance issued in March by the Centers for Disease Control, which effectively allows CBP officers to expel migrants and asylum-seekers without considering whether they are eligible for protection under US law. It has been less visible, although perhaps more effective, in the way that it has radically re-shaped borders and mobility in Central America, producing what Carlos Martinez has called ‘el Muro del sur’ across Mexico’s southern border.

On the other hand, the notion of deterrence- of using a variety of physical, legal, and administrative tools to prevent the arrival of migrants and asylum-seekers- has a long history in the United States that does not begin with the Trump Administration. From the Reagan Administration’s response to the ‘long Mariel crisis’ during the 1980s, to the 1994 Clinton-era US Border Patrol’s strategy of ‘prevention through deterrence’, to the implementation of Operation Streamline in 2005 under the Bush Administration, Republicans and Democrats alike have employed a wide range of tools to keep migrants and asylum-seekers out of the United States. This focus on deterrence increased during the early years of the Obama Administration, as the White House attempted to secure Republican support for comprehensive immigration reform in Congress by forcefully increasing immigration enforcement and border control. The Obama Administration’s implementation of the ‘Consequence Delivery System’ in 2011 significantly increased the use of expedited removal, a form of removal proceeding whereby certain unauthorized immigrants who have been physically present in the United States without authorization for less than two years may be removed from the country without a hearing before an immigration judge. In 2014, an increase in the arrival of families fleeing violence in Central America at the US-Mexico border triggered public perceptions of an uncontrolled migration crisis. In response to this humanitarian crisis, the Obama administration pursued a strategy of deterrence. In June 2014, the White House announced that it would pursue wide-scale detention of mothers and children to deter other families from seeking asylum in the United States. DHS Secretary Jeh Johnson told Congress ‘Our message is clear to those who try to illegally cross our borders: You will be sent back home.’ During a trip to Guatemala in to meet with regional leaders, Biden himself expressed sympathy with families fleeing persecution in Central America, but declared flatly ‘we’re going to send the vast majority of you back.’ Months later, in December 2014, DHS opened the privately-operated South Texas Family Residential Center, among the largest purpose-built immigration detention centers in the world, to incarcerate 2,400 women and children during the pendency of their credible fear interviews.

In contrast to the open cruelty of the Trump administration, the Biden Campaign’s immigration platform advertises a commitment to ‘tackle the root causes of migration’, evidencing a desire to use development and security aid to reduce mobility from Central America and Mexico to the United States. Anyone familiar with the experience of European Union’s migration policies in Northern and Western Africa, not to mention the large body of academic research on the relationship between migration and development, will be understandably skeptical of this agenda. Moreover, the reporting of Lind and others suggests that Biden’s campaign is split between advisors who favor maintaining deterrence as the status quo, and those who favor replacing the MPP program, March CDC guidelines, and safe-third-country agreements with El Salvador, Honduras, and Guatemala with a more humanitarian approach.

As the Biden-Harris Administration prepares for the inauguration, scholars and policy experts have offered useful advice on how to begin reforming the immigration system. Among the solutions offered by the Migration Policy Institute’s Rethinking Immigration Policy Project include major changes to the organization and administration of border control and the reception of asylum-seekers, the creation of a ‘bridge’ visa offering a path to legalization for unauthorized immigrants, and substantial reforms to the organization and oversight of US Customs and Immigration Enforcement. In addition to considering these recommendations, the Biden-Harris campaign should follow through on the commitments enshrined in the Biden-Sanders unity taskforce, which would end most ‘at-large arrests’ in the community by ICE, effectively abolish immigration detention in favor of community-based alternatives, and dramatically limit information sharing and cooperation between ICE and state and local criminal justice systems. The President-elect should also follow through with and expand on Obama-era commitments to end the Federal Government’s contracts with private, for-profit prison contractors, including contracts for ICE detention facilities, US Marshal Service facilities, and the all-foreign ‘Criminal Alien Requirement’ facilities operated by the Bureau of Prisons.

Yet, perhaps more important than any specific policy recommendation, is the hope that the President-elect might learn from the failures of the Obama Administration’s record on immigration reform. It is simply not enough to replace the open cruelty of the Trump Administration with a Janus-faced liberalism that outwardly proclaims support for migrants, asylum-seekers, and refugees, while at the same time intensifying the criminalization of migration and displacing the burden of humanitarian protection to our southern neighbors. The Biden campaign’s public rhetoric, and his declaration during the final presidential debate that the Obama administration had ‘made a mistake’ on immigration enforcement offer promising, if tentative hope that these lessons are being learned.

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How to cite this blog post (Harvard style) 

Tuck, H. (2020). How Will the Results of the 2020 Election Affect the Enforcement of Immigration Laws in the United States of America?. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2020/11/how-will-results [date]