Joe Biden's aim for more 'humane' immigration faces court, legislative snags

President Joe Biden speaks Monday at the National Association of Counties Legislative Conference in Washington. As he runs for re-election, his record on immigration reform and border security has critics from Republicans and Democrats. Photo by Chris Kleponis/UPI
1 of 8 | President Joe Biden speaks Monday at the National Association of Counties Legislative Conference in Washington. As he runs for re-election, his record on immigration reform and border security has critics from Republicans and Democrats. Photo by Chris Kleponis/UPI | License Photo

Feb. 13 (UPI) -- President Joe Biden's record on immigration reform and border security has critics from Republicans and Democrats as Congress mulls a path forward. It's a challenge many of his predecessors have also grappled with.

There is agreement across the board politically, and among migrant advocates, that changes must be made. Yet for nearly 30 years, Congress has punted on significant immigration reform.


The president campaigned in 2020 on bringing about a more humane approach to immigration policy. Though he signaled that he would undo many of the more controversial policies enacted by former President Donald Trump, some of those key policies remain.

"One of the similarities between the two are that for both administrations they've faced this kind of really odd scenario where Congress hasn't really passed any meaningful legislation on immigration for many years," Colleen Putzel-Kavanaugh, associate policy analyst for the Migration Policy Institute, told UPI. "They've had to move to using executive decisions, which makes them vulnerable to litigation."


'Mired up' in court

On the campaign trail in October 2020, Biden vowed to deliver a bill to Congress that would give immigrants a route to citizenship. He also called for a review of temporary protected status for vulnerable populations, particularly those fleeing violence in their home countries.

"Within 100 days, I'm going to send to the United States Congress a pathway to citizenship for over 11 million undocumented people," said Biden, who is running for a second term this November, as is Trump.

Within hours of being sworn in on Jan. 20, 2021, Biden unveiled a number of policies and executive actions aimed at achieving what he called a "comprehensive and humane immigration system that operates consistently with our nation's values."

Among those actions was an executive order to revise the U.S. Civil Immigration Enforcement Policies and Priorities. The order would revoke Trump's executive order that called for the removal of all undocumented immigrants and stoppage of all federal funding to sanctuary cities. This portion of Biden's executive order was enacted.

The order's call for a 100-day pause on removals was not. A federal judge challenged the moratorium days after it was issued. It would later be blocked indefinitely by a Texas judge.


"With President Biden, we've seen lots of different changes, but the same problems persist," Putzel-Kavanaugh said. "Things get mired up in the court system."

The president sent his first bill to Congress as well. The immigration bill sought to make several reforms to immigration policy. Among the most notable was its "roadmap to citizenship" that would put undocumented immigrants on an eight-year plan toward legal status. They would be allowed to apply for temporary legal status and apply for a green card after five years if they paid their taxes and passed a background check.

The immigration bill has remained dormant in Congress since being introduced. It has been referred to 12 committees but no other action has taken place.

The Department of Homeland Security was directed to suspend the Trump-era Migrant Protection Protocols, also referred to as the "Remain in Mexico" policy. The policy directed migrants from Mexico to remain there awaiting their appearance in court.

The suspension of the Migrant Protection Protocols was challenged in court and reinstated. It was challenged again and ultimately ended in October 2022.


Among the Trump administration's most controversial policies was his attempt to greatly limit the Obama administration's Deferred Action for Childhood Arrivals. Biden pushed back on these restrictions while campaigning for the presidency.


"All of those so-called dreamers, those DACA kids, they're going to be immediately certified again to be able to stay in this country and put on a path to citizenship," Biden said in October 2020.

Biden's stagnant day-one immigration reform bill included language to make dreamers, individuals with TPS and immigrant farmworkers immediately eligible to apply for green cards. But it was not the only approach the president has taken to provide protections and rights to immigrants.

Also on day one, Biden released the memorandum Preserving and Fortifying Deferred Action for Childhood Arrivals.

The DACA program provides protection from deportation and work permits for nearly 600,000 people. More than 800,000 young immigrants have been part of the program since its inception under the Obama administration in 2012.

In September, a federal judge in Texas ruled that Biden's actions to strengthen the program are illegal. He added that the issues with the program can only be fixed through legislative action.

"While sympathetic to the predicament of DACA recipients and their families, this court has expressed its concerns about the legality of the program for some time," U.S. District Judge Andrew Hanen said in his ruling. "The solution for these deficiencies lies with the legislature, not the executive or judicial branches."


Hanen stopped short of saying the federal government must take any actions on immigration, such as carrying out deportations.

Trump had attempted to terminate the program outright, ordering DHS to stop processing DACA applications when he took office. This was ruled unlawful in 2020.

Family separations were another crisis that Biden focused on when he took office. On Feb. 2, 2021, he issued an executive order to create a task force focused on the reunification of families.

The Department of Health and Human Services found more than 3,000 cases of children being separated from their parents during the Trump administration. This followed the Trump administration's zero-tolerance border policy that used separations as a deterrent.

According to a November report by the human services department, 3,147 children separated from their families under the Trump administration have been reunited. This includes 775 children reunited with their parents by the task force.

Refugees, asylum seekers

Political opponents of Trump long challenged his executive order that restricted travel and visas from a number of countries in Africa and South America. Biden almost immediately pulled back on these bans, starting with the Proclamation on Ending Discriminatory Bans of Entry to the United States.

The proclamation lifted many restrictions on visas for nationals of Burma, Eritrea, Iran, Venezuela, Kyrgyzstan, Libya, Somalia, Sudan, Syria, Tanzania and Yemen.


Biden has extended restrictions that Trump placed on North Korea following the killing of 22-year-old American college student Otto Warmbier.

An executive order by Biden revoked more Trump-era policies at the same time, including the policies that blocked asylum seekers from work authorization and ruled immigrants who entered the United States illegally are ineligible for asylum.

The COVID-19 slowed the number of refugees admitted into the United States through the end of 2020 and into Biden's presidency. Biden said he would increase the cap on refugees and he did so in 2022.

After limiting the number of refugees accepted in 2021 to 62,500 -- less than 12,000 were actually admitted -- the cap increased to 125,000 in fiscal year 2022.

In the spring of 2023 however, Biden rolled out the Circumvention of Lawful Pathways, a proposed rule that would presume migrants are ineligible for asylum if they enter the country unlawfully. It also required asylum seekers to use a phone app to apply for protections.

The proposal was one of several Biden rolled out as Title 42 was set to expire. Title 42 was used by the Trump administration to slow immigration during the pandemic in relation to the public health crisis.


The Biden administration credited a steep drop in illegal crossings to his new policy, but it was quickly challenged in court. Immigration advocates largely opposed the rule as well, referring to it as an asylum ban. About 300 organizations penned a letter to Biden ahead of the policy being enacted, asking him not to move forward with it.

The policy was struck down in court in July 2023, when a federal judge ruled it was "arbitrary" and "capricious."

Border wall

Biden's stance on Trump's border wall came into conflict with his actions in the fall when his administration waived 26 federal laws, including environmental protections and land seizure laws to clear the way for more construction.

In a 2020 interview with the National Association of Black Journalists and National Association of Hispanic Journalists, Biden said he would not build "another foot" of Trump's border wall during his administration.

When Biden took office, he issued a proclamation to end the national emergency at the southern border and redirect funds from wall construction. The work stopped, but Congress did not redirect the funds appropriated to the wall.

Through three years in office, Biden has been called to take action on border security by Republican and Democratic leaders, including governors. Illinois Gov. J.B. Pritzker and New York Mayor Eric Adams are among the prominent Democrats who have requested aid and reform as Chicago and New York have taken in an influx of migrants.


Meanwhile, Republican Govs. Greg Abbott of Texas and Ron DeSantis of Florida have taken to sending migrants from their states to Democrat-led cities while deriding the president's immigration policies.

Immigration advocates raised the alarm after a document from Homeland Security Secretary Alejandro Mayorkas revealed plans to continue construction of "physical barriers" at the southern border in October. The Immigrant Legal Resource Center called his apparent reversal on the wall and other policy reversals a "betrayal."

Biden stated he did not have the legal authority to stop construction of the wall as the funding had been authorized by Congress. He also said the wall is "not serious policy."

Carlos Guevara, director of policy at The Immigration Hub, told UPI Biden's change of direction is not so simple to understand.

"Some of that money had been committed already and had to be moved forward on. Folks on the advocacy side were more frustrated there wasn't more pushback to pursue alternative paths," Guevara said.

"For many in the community, the idea of the wall is, one, such a symbol of hate and everything, from our perspective, America stands not to be. It's more complicated than he just turned his back on the community."


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