Biden’s immigration policy: innovative changes amid complex challenges

The administration has definitely made attempts to humanize immigration policy and to enact change, but since Congress has not taken up comprehensive immigration reform, the options available to the administration are limited.

At this point the Biden administration has actually already outpaced the number of executive actions that the Trump administration took — those are the actions that the executive branch can take without Congress passing new laws. But almost all of the major policy moves that the Biden administration has taken have been challenged in the courts (they have either been blocked or delayed). So it’s very difficult for the executive branch to make long-term changes, but they are certainly making those efforts. The new border management strategy is the clearest example of recent attempts to really usher in a new system.

The inability of Congress to pass comprehensive immigration legislation shows how politically difficult the issue [immigration] is not only for Republicans, but also for Democrats. And we’ve seen this really coming to a head with Democratic mayors of cities imploring their own party and the Biden administration to take more action at a federal level, and to manage increased migrant arrivals in cities such as New York and Chicago.

Definitely the use of TPS and of parole to allow people to enter the country lawfully. Another important area where the Biden administration has really made improvements is bringing immigration into the 21st Century in terms of process, and responding to situations rapidly. This administration has been moving very quickly in response to foreign situations and how it’s dealing with the arrival of people.

There have been really innovative moves to roll out new programmes, in particular I’m thinking about the Uniting for Ukraine and the Cuba, Haiti, Nicaragua, and Venezuela parole programmes. These are large scale, nationality-based parole programmes that are unprecedented in the way that, while the use of parole does date back decades, the speed with which the administration has established them and brought in people has been really exceptional.

That’s absolutely one factor here. But I really want to emphasize that people’s decisions are based on the circumstances in their home countries. When people talk about push and pull factors, it’s really important to look not only at the economic conditions here in the United States, the availability of jobs, but also the lack of opportunity in home countries and the really difficult situations of instability and violence that people are encountering at home that are driving them to migrate.

Yes, for example in how it’s being operationalized with the use of technology – I’m speaking about the CBP One application [a mobile app for Customs and Border Protection services], because that is what’s allowing people who are coming to the border to schedule their arrival in advance. That’s a huge advantage for Customs and Border Protection as well because they’re able to receive people’s information and prepare in advance.

Otherwise the use of parole has actually been blocked by the courts for people who are arriving between ports of entry and that has meant that border officials have to spend more time and issue a document called a notice to appear in immigration proceedings.

This is another area where the Biden administration has used its executive authority in an unprecedented manner. There are now record numbers of people with temporary protected status.

TPS is however a major challenge for the U.S. Citizenship and Immigration Services because currently processing times for TPS applications for Venezuelans is 20 months, which is actually longer than the status itself (18 months). So in terms of the immediate efficacy of this announcement as a solution for getting people work permits there really needs to be changes made to process applications more quickly. And part of that comes back to Congress, which needs to appropriate funds so that USCIS can adjudicate these applications.

Definitely in terms of modernizing the immigration service — this is another area where the Biden administration has made a lot of technical process changes that have sped up adjudications in some areas. For example, applications for parole programmes are processed relatively very quickly. In the courts, the judges are now able to hear hearings remotely and migrants are able to call into the proceedings.

On the other hand, in areas such as the asylum backlog, the focus on border screenings and the credible fear interviews [when an asylum officer establishes if you have a credible fear of persecution or torture] means that adjudicators are spending time working on those instead of processing asylum cases. If Congress were to appropriate more money for working through the backlog, that would really help the situation. There are still many changes that need to happen.

I think that absolutely people will look back at the expansion of these temporary statuses as positive ways to try to expand means of access to the U.S. and protections for people who were already here. But the ongoing challenges at the border and their connection to the challenges in the Interior (the backlogs leading to people having long waits and not receiving final decisions of protection or removal) will be something that we look back on. But Congress has a role to play and if Congress does not act, what the Biden administration can accomplish will be limited at the end of the day.

I want to emphasize the rigidity of the U.S. immigration laws. In other countries around the world, the laws and programmes can change in reaction to different situations. Our system was literally designed in the 1980s and 90s and that has led to a completely untenable situation now, where the laws do not reflect today’s realities.