Biden set high expectations on immigration, but advocates say he has fallen short
The past eight months under President Joe Biden have been very disappointing for 19-year-old college student Daniela Chavira.
The Grand Canyon University sophomore is undocumented and an activist for other students like her, known as Dreamers.
She has watched as Biden's campaign pledge to reform the country's broken immigration system has largely gone unfulfilled, maintaining the status quo that immigration advocates have worked hard to change for the past two decades.
"They're always talking about immigration and how they're going to make immigration reform, stop the deportations and everything. And every time I hear that, and every time I look back at what's happening now, you haven't done anything, to put it quite frankly," Chavira said.
"I'm still in the same situation I was years ago. I'm still in it now," she added.
On the campaign trail, then-candidate Joe Biden contrasted himself as a polar opposite to then-President Donald Trump on immigration issues. Whereas Trump implemented restrictive and nativist policies, Biden said he would usher in a "fair, orderly and humane" process.
But since taking office, Biden's immigration priorities have stalled.
His proposal to reform the broken system and offer a pathway to citizenship for some of the estimated 11 million undocumented immigrants in the country is on hold in a gridlocked Congress.
Republicans at the state level have challenged in court his attempts to reverse some immigration policies, like the Migrant Protection Protocols, or new priorities for deportations. But Biden has also opted to keep other policies, such as the controversial Title 42 public health rule at the U.S.-Mexico border, and the private immigration detention system.
That has angered immigration activists who believed Biden was an ally. They are now increasingly voicing their frustration over his lack of progress on immigration, even though Democrats control the White House and both chambers in Congress.
“The frustration is that there’s this expectation that it was going to happen this year. And a lot of people came out in 2020 volunteered a lot of hours, and made calls, put a lot of things on hold so they can make sure to have this opportunity," said José Patiño, the director for education for Aliento, a Phoenix-based advocacy group for undocumented youth and mixed-status families.
"Now it feels like it's gone and we didn’t actually get a vote. And we didn’t get an opportunity. So it’s like it was sort of a lie,” Patiño added.
Biden signaled that action was coming
On his first day in office, Biden unveiled a three-pronged plan to overhaul the nation's immigration system, in addition to a list of memos and executive orders to address other components of the current process.
The centerpiece of the proposed immigration legislation, known as the U.S. Citizenship Act of 2021, would provide an eight-year path to citizenship for Dreamers, farmworkers and Temporary Protected Status recipients. It would boost investment along the U.S.-Mexico border and take on the root causes of migration south of the border.
Ali Noorani, the president and CEO for the National Immigration Forum, which advocates for "responsible" solutions to address immigration, said Biden "set expectations that he himself was going to be deeply engaged in this issue.”
Instead, the White House made the calculation to have other officials within the administration take the lead on the issue, thereby losing the weight of the Office of the President to advance his immigration agenda, he said.
Democratic lawmakers introduced Biden's bill in Congress in February, but it has failed to overcome Republican opposition and has yet to advance and get a vote.
The dynamics in Congress are familiar to immigration analysts who have seen previous attempts at reform fail.
"Republicans, for their part, they are quick to blame Democrats for the problems, but are very, very slow, to put it generously, to come to the table with solutions," Noorani said. "And Democrats, they are quick to speak to legalization of Dreamers, but very hesitant to speak to the need to really establish a smarter approach to border security."
An attempt to pass immigration reform through the budget reconciliation process stumbled last month when the Senate parliamentarian twice blocked Democrats from including a pathway to citizenship for Dreamers, TPS recipients and essential workers in a $3.5 trillion spending bill.
Democrats hoped to bypass a 60-vote threshold in the Senate to pass legislation because they lack the support to overcome a Republican filibuster.
David Bier, an immigration research fellow at the libertarian think tank Cato Institute, said the likelihood to pass immigration reform is now slim.
"The parliamentarian ruling against reconciliation being an option means that bipartisan immigration reform is the only option. And frankly, the Republicans are not willing to entertain any kind of broad amnesty program, so that's going to eliminate any chance at immigration reform," he said.
Advocates are urging Democrats to bypass the parliamentarian's opinion, or to provide "humanitarian parole."
The Center for American Progress said the move would benefit an estimated 7.1 million undocumented immigrants, including nearly 193,000 people in Arizona. Parole would offer "long-term temporary" relief, rather than a permanent solution such as a pathway to citizenship.
How Biden administration has addressed immigration
On his first days in office in January, President Joe Biden announced a series of memos and executive actions to address immigration. The most surprising to many was a short-lived 100-day stay in deportations, as well as stricter guidelines on who would be prioritized for removal from the country.
Republican-led states, including Arizona, successfully filed lawsuits to stop the priorities from taking effect. As a result, the Department of Homeland Security issued a new memorandum on Sept. 30 with looser guidelines for who would be eligible for removal.
The memorandum gives Immigration and Customs Enforcement greater discretion over who to deport from the country, establishing "mitigating factors" to defer the deportation for certain immigrants. Examples include youth and the elderly, caregivers, crime victims and people with a "lengthy presence in the United States."
"They, our neighbors, our teachers, our faith leaders, our fellow congregants, our fellow students," Homeland Security Secretary Alejandro Mayorkas said in an interview with the USA Today Network.
"The exercise of discretion and the goal of achieving immigration justice and protecting and advancing the well-being of our country, independent of the issue of resources, militates in favor of not spending our resources on their apprehension and removal," he added.
Republican-led states also mounted a challenge to the Biden administration's plans to end the Migrant Protection Protocols, a Trump policy also known as "Remain in Mexico." During a six-month period earlier this year, CBP processed and admitted 13,000 of the more than 71,000 asylum seekers the Trump administration sent to wait in Mexico for their asylum cases to proceed.
In August, the Supreme Court upheld a lower court injunction against the memo, blocking the Biden administration from ending the program. On Thursday, DHS announced it would re-implement the controversial policy by mid-November, pending approval from the Mexican government.
Advocates swiftly rebuked the announcement and denounced the administration for failing to issue a new termination memo that would comply with the Texas federal court's ruling.
"The fact that it has not done so and is instead moving forward with plans to restart the program in November is a betrayal of the president’s campaign promises and a clear sign that this administration is failing to re-envision border management and the way that we treat people who are seeking protection in the United States," Jorge Loweree, the policy director at the American Immigration Council, said in a written statement.
Biden kept Title 42, which allows U.S. to quickly expel migrants
Immigration advocates have also expressed concerns about the Biden administration's continued enforcement of other policies. Chief among them is Title 42, a public health rule that DHS implemented along the U.S.-Mexico border in March 2020 to combat the spread of COVID-19.
The policy allows U.S. border officials to immediately expel migrants from the country, even if they have a credible fear of being returned to their home countries. DHS has kept the policy in place and defended it in court.
"It is a necessary public health measure by reason of the fact that we are in the midst of a pandemic," Mayorkas said. "And one of the worst phenomenon in the context of the pandemic is to have a large number of individuals encountered at the border in between the ports of entry, have them placed in congregate settings for a certain length of time."
Mayorkas said they are processing certain asylum-seekers, but mostly if they meet a higher standard for protection under the Convention Against Torture.
However, critics continue to see the policy as an assault on established U.S. laws that guarantee access to asylum, and as a tool to control migration flows at the southern U.S. border.
Since Title 42 took effect, U.S. officials as of August have turned away 1.16 million migrants at the border, according to Customs and Border Protection. The number is now higher, but CBP has yet to release statistics for September.
Even though the policy has been in place for 18 months, Title 42 gained greater scrutiny last month after Border Patrol agents on horseback charged at Haitian migrants who had set up camp in Del Rio, Texas. DHS cleared the camp in a matter of days, expelling the majority of the 15,000 Haitians from the U.S. under Title 42.
Immigration advocates decried Border Patrol's treatment of Black migrants at the banks of the Rio Grande.
Abraham Paulos, the deputy director for the Black Alliance for Just Immigration, said that incident illustrated deep-rooted racial biases ingrained in the immigration system against migrants of color.
Paulos added that while he thought Biden was a better alternative to Trump, he also felt disappointed, but not surprised at the Biden administration's "violent, visceral response" to Black migrants seeking asylum.
"That response was to deport, to get on these planes, while on the other hand saying we don’t have infrastructure, we don’t have systems to be able to process everybody," Paulos said. "But they have endless resources and infrastructure and systems to deport thousands of Haitians back to an island that just screams refugee protection."
Mayorkas said that he was committed to conducting a "thorough and swift" investigation, but said it has not been completed. The DHS secretary said they have developed plans to boost resources if needed, as well as "preventive measures" to avoid a repeat of the situation in Del Rio.
"Should it, we're already poised to respond, whether it be the deployment of personnel, the ability to call upon humanitarian resources, food supplies, other needs, facilities, transportation, medical care, et cetera, we're poised," he said.
"But critical to preventing it is the fact that not only did we learn from it, but the lesson is shared with our partners to the south," Mayorkas added.
Immigration advocates have voiced disappointment with Biden and his administration over the ongoing use of detention centers, despite campaign pledges to end prolonged detention and the use of private prisons to hold migrants.
Silky Shah, the executive director for the Detention Watch Network, said the number of people in detention has increased in the first few months of Biden's presidency. The latest data from Immigration and Customs Enforcement showed a 53% increase in the average daily population in ICE custody from January to September.
Shah said she was initially encouraged when Mayorkas directed ICE in May to shut down two detention facilities in Massachusetts and Georgia, hoping it would lead to a reduction in the use of private immigration detention centers.
In the past two months, ICE agreed to reopen two facilities in Pennsylvania, one specifically for women and the other for adults. DHS under Biden budgeted nearly 32,000 detention beds for the upcoming fiscal year.
"For us, the reality is he's failing on detention reform. He is ... doubling down on detention," Shah said. "Completely committed to the incarceration of immigrants, completely committed to surveillance of immigrants, and he doesn't actually get that pass from us and we've been taking action around that."
On Oct. 8, 220 community and advocacy groups, led by the Detention Watch Network, sent a letter to Biden and Mayorkas urging them to cancel the contracts and expand his January executive order to phase out the use of private prisons to include ICE facilities.
"Like its predecessors, the Biden administration has made detention central to its response to migration, including to people seeking asylum at our borders. This is a choice," the letter said.
Activists want to ramp up pressure
Patiño, with Aliento, said the clock is running out for the Biden administration to take any significant action on immigration, especially once the 2022 congressional midterm election campaigns get underway.
In the meantime, the group is adding greater focus to another major vote taking place next year: Arizona voters will decide whether to grant in-state tuition to undocumented students such as Chavira.
Aliento is ramping up a campaign to boost support for the ballot referendum and has selected a new cohort of 20 high school and college students to advocate for undocumented students and mixed-status families.
Luis Hernandez, a Deferred Action for Childhood Arrivals recipient, is one of them. He has lived in Arizona since he was one and said his experience as a DACA recipient navigating higher education has allowed him to help other students who face the same questions.
As a pre-med senior at Arizona State University, Hernandez aspires to become a physician. Not having legal status has limited his opportunities and resources. At ASU, he's had to pay roughly $7,000 more in tuition each year than in-state students.
"It doesn't have to be the reality for the future generations of DACA or undocumented students, it just doesn't have to be that way for them," he said.
Patiño said the energy and enthusiasm that the students display gives him hope, despite the lack of progress at the national level on immigration issues.
The group will continue to build on its success, getting the in-state tuition initiative on the ballot, and looking at other ways to ramp up the pressure and affect change.
The end goal remains the same, he said: legalization for undocumented students and their families.
"Hopefully, we can get there," Patiño said. "It just doesn’t seem right now, it’s too cloudy. Maybe the sun needs to shine a little bit and then we’ll get there, but right now it’s too cloudy."
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