Can President Biden undo the former president’s immigration legacy? Sure, experts say, but he probably won’t.
WASHINGTON (CN) — This week marks one month since the acting secretary of Homeland Security signed a memorandum to pause deportations from the United States for 100 days.
That pause never came to pass, however, thanks to back-to-back judgments from a federal judge appointed to the bench in Texas by former President Donald Trump.
Citing the cost that Texas would face if it had to educate and incarcerate the immigrants it would otherwise remove, U.S. District Judge Drew Tipton blocked the moratorium indefinitely.
The case forecasts a daunting four years for immigration reform under President Joe Biden who signed 19 executive orders on his first day of office, six of them to do with immigration, including stopping construction of the border wall, ending the Muslim travel ban, and preserving the program called DACA or Deferred Action for Childhood Arrivals.
But rehabilitating a judicial system that was stacked against immigrants is proving harder to accomplish than through a few executive orders. And despite Democrats controlling both the House and the Senate, some experts don’t see Biden’s plans coming into fruition.
It’s no secret that President Trump sought out to make it harder for noncitizens entering the United States to avoid deportation, let alone to immigrate successfully. His intentions can be gleaned from whom he hired.
“Under the Trump administration, there was this huge emphasis on rushing through cases, restricting who’s eligible for release, all with the aim of deporting as many people as possible as quickly as possible” said Kate Voigt, senior associate director of government relations at the American Immigration Lawyers Association, said in a phone interview. “That emphasis is really undergirded by Trump’s judicial picks and staff hires in the immigration courts.”
In April 2017, the Department of Justice outlined ways to “streamline and shorten” the hiring process for immigration judges. Former Attorney General Alberto Gonzales had put the previous scheme in place in March 2007 after an internal investigation found that his aides had been illegally screening the political views of individuals applying for positions like entry-level lawyers, top prosecutors and immigration judges.
The process authorized by Jeff Sessions stripped away certain procedures aimed at creating a more thorough and fair hiring process. Rather than allowing the chief immigration judge to provide his input, or interviewing all the top candidates, political appointees like the assistant attorney general could choose candidates at their discretion.
This paved the way for the Justice Department to enlist conservative loyalists to serve in the Executive Office for Immigration Review. In 2020, for example, Attorney General William Barr appointed Judges Brandon Bolling and Matthew O’Brien to the agency. The former argued that Islam was incompatible with the First Amendment; the latter was once the research director of Federation for Immigration Reform, which has been labeled a hate group by the Southern Poverty Law Center.
What were once 17 appellate judge positions at the Executive Office for Immigration Review also grew under Trump to 23, and grant rates for asylum seekers sank precipitously. The average at which Trump picks granted asylum was 2%, as compared with the 29% grant rate for asylum from immigration judges across the country.
By 2020, 61% of the judges presiding over immigration courts were Trump appointees, and many of them have no experience with immigration law. “And at the same time, there’s fewer judges who’ve been around for a long time, who really knew the ropes,” Voigt said. Dozens of immigration judges left the bench during the Trump administration to protest his policies, leaving fewer mentors for incoming judges to learn the ropes.
“We’re talking about immigration law here,” Voigt said. “It’s widely regarded as one of the most complex areas of law. It’s not something that you can pick up and run with.”
The policies enacted in the last administration add to immigration advocates’ worries. In December 2020, the Executive Office for Immigration Review eliminated “master calendar hearings” — typically the first, short hearing an immigrant faces — in favor of an “enhanced case flow processing model,” requiring attorneys to submit a written plea on behalf of defendants instead of giving them their day in court.
This shifts the burden onto the immigrant to prove whether they entered the country legally.
“It presumes that the immigrant is indeed an immigrant who is unlawfully here, when the Department of Homeland Security needs to establish that first,” said Michelle Mendez, director of the Defending Vulnerable Populations Program for the Catholic Legal Immigration Network. “That’s their burden.”
The Trump administration made several policy changes like this to the immigration court system, each making the path toward citizenship — or at least, to avoiding deportation — a little more arcane and complicated than the last. “Not necessarily substantive changes on their face,” Mendez continued, “but procedural changes that actually end up leaving a substantive impact.”
Simply put, the immigration courts aren’t a welcoming place right now for the policies promised by President Joe Biden. Even with an onslaught of executive orders, officials would have the Herculean task of reviewing judges across the country for political bias, retraining them root out that bias, and tweaking the trial process to make it fairer for immigrants, all while trying to make Biden’s executive actions stick.
“It gets down to the granular level,” immigration attorney Sarah Owings said in a phone call. “It’s a question of, yes, who’s been brought in, but not just judges: line prosecutors, ICE officers, people out in the field.”
Thanks to Trump’s immigration agenda, immigrants can be subject to an unfair arrest, detention or trial at any point they encounter law enforcement.
Owings notes that judges and lawyers chosen by the Trump administration have career appointments, not political ones, so they can’t just be replaced by the next president without committing a fireable offense or leaving on their own.
The question then lies in their intentions. As Owings asked, “How do you change the hearts and minds of people who went there to work for Donald Trump and Stephen Miller?
There is potential. Both chambers of Congress are controlled by the Democrats, and President Biden has enough time and manpower to push through his agenda. What remains unclear is whether he’ll actually do so.
Voigt argues that Biden’s executive actions and legislative reforms should work in tandem. Her group AILA has pushed for the immigration court system to be made independent from the Justice Department, making court appointments and proceedings less political. But she also says that Democrats should move aggressively to reform the courts if they hope to see progressive change.
Owings isn’t as optimistic. “They could, but they probably won’t,” she said. The administration is still focused on repairing the economy and managing the coronavirus pandemic. Biden hasn’t even been able to pass the stimulus plan he promised last fall. Besides, immigration is still a very divisive issue and aggressive reform could cost the Democrats seats in 2022. “It’s a lot of political capital to extend,” Owings said.
She isn’t the only one worried. Many immigration advocates are still scarred from how little was accomplished during the Obama years, under similar circumstances.
“We had [a Democratically controlled Congress] in 2010,” she says, “we had this from 2008 to 2010. We didn’t do it.”