5 recommendations as Biden works to dismantle discriminatory immigration policies
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Since ascending to the Oval Office, President Joe Biden has issued executive orders, memorandums and actions to address the Trump administration’s aggressive immigration agenda. For instance, on his first day in office, Biden rescinded former President Donald Trump’s notorious Muslim and African bans, which restricted travel to the U.S. from predominantly Muslim-majority and African countries.
During the 2016 presidential election cycle, then-candidate Trump promised—and later delivered—a “total and complete shutdown of Muslims entering” the country. Eventually, Trump’s Muslim ban encompassed new restrictions against African immigrants, as well.
Biden also issued a directive denouncing the post-pandemic discrimination against the Asian American and Pacific Islander community while providing guidance on how the Justice Department should respond to the heightened number of anti-Asian, bias-motivated incidents, including improved data collection and assistance with related reporting.
The directive also addressed the Trump administration’s discriminatory rhetoric, such as referring to the coronavirus as the “China virus,” while ordering the removal of any such references from official policies or federal websites.
Citing humanitarian concerns, the Biden administration also moved to “preserve and fortify” the Deferred Action for Childhood Arrivals policy. Established by the Obama administration in 2012, DACA permits people living in the United States without legal permission who arrived here as children work authorization and other benefits (including official assurances that they would not be subject to deportation) renewable in two-year periods.
Pursuant to the Trump administration’s aggressive immigration agenda, the Department of Homeland Security sought to end the program and deport the “Dreamers”—many of whom are young people who have known the United States as their only home. While former Attorney General Jeff Sessions claimed that DACA lacked “proper statutory authority,” the federal courts enjoined the administration’s recision of DACA. Ultimately, in 2020, the Supreme Court found that recision was unlawful for procedural reasons but opted not to opine on DACA’s legality.
Significantly, last month, the House of Representatives passed the American Dream and Promise Act, which would provide a path of citizenship to more that 2.3 million DACA recipients, thus affording the group expanded protection.
Last December, the ABA Section of Civil Rights and Social Justice Rights of Immigrants Committee, in strategic partnership with the German Marshall Fund of the United States, convened a group of interdisciplinary experts to discuss policy responses to the last four years of restrictive, exclusionary and discriminatory immigration measures. The event was part of a two-day Social Justice Policy Summit addressing the most pressing civil rights and social justice issues. Here are several recommendations to help us turn the page on immigration and write a new chapter for our nation.
Stop pitting racial, ethnic and religious communities against each other
The previous administration frequently employed an “us v. them” narrative to alienate groups from one another. Representative narratives assert that immigrants are allegedly stealing jobs from African Americans, and Muslims are supposedly victimizing members of the LGBTQ community.
Similarly, the model minority myth about Asian Americans—depicting the ethnic group as a universally well-educated, prosperous and successful example of how to overcome discrimination—is leveraged as a racial wedge to discount the effects of racism, particularly in the lives of Black Americans (e.g., if they can succeed, why can’t you).
Such exaggerated, broad-based characterizations about any community not only help bolster regressive public policies, counterproductive practices and exclusionary measures against already subordinated groups, but they also upend attempts to build multiracial coalitions against bigotry, prejudice and discrimination.
Restore independence, impartiality and integrity to immigration courts
Immigration judges, who are part of the Department of Justice’s Executive Office for Immigration Review, give effect to the provisions of the Immigration and Nationality Act via statutory construction and interpretation. Over the course of the last four years, the Trump administration filled two-thirds of the court’s 520 lifetime positions with judges who have overwhelmingly favored deportation—in 69% of cases as compared to 58% for those hired since the Reagan administration.
In response to these new judges who are willing to effectuate restrictive immigration policies, in 2019, the ABA warned that these new adjudicators were “underqualified or potentially biased.” In fact, the minority—42%—actually enjoyed any immigration law experience. Further, according to Human Rights First, 88% of immigration judges appointed in 2018 were former Department of Homeland Security employees or attorneys representing the department.
Moreover, the Board of Immigration Appeals, the appellate body tasked with overseeing the immigration courts, is largely viewed as “rubber stamping” lower court determinations. To restore the court’s independence, impartiality and integrity, the Biden administration should vastly expand the number of immigration judges and ensure the courts are fully staffed and adequately funded. New appointees should include immigration attorneys with actual legal experience representing immigrants.
Engy Abdelkader.
Dismantle federal programs between local police departments and ICE
Increasingly, local police departments are assuming federal immigrant enforcement vis-a-vis 287(g) agreements with ICE. The agreements delegate to local police such federal authority while incentivizing them to make pretextual arrests to identify and detain immigrants. Such abuses compromise community trust in institutions meant to protect them while also undermining public safety.
For instance, when local police officers act as federal immigration agents, a routine traffic offense can culminate in an immigrant’s arrest, detention and deportation. As such, these agreements may deter members of the immigrant population from reporting crimes and/or cooperating in related investigations thus allowing criminal activity to proliferate.
Over the course of the Trump administration, as part of a bid to deport as many immigrants as possible, 287(g) agreements proliferated from 34 in 2016 to 151 in 2020. Significantly, a coalition of more than 100 law enforcement professionals have called for the cessation of such partnerships. On the campaign trail, Biden expressed his receptiveness to doing so.
End the extreme vetting initiative
The Extreme Vetting Initiative requires screening travelers and immigrants to the U.S. to ensure they will make positive contributions to the national interest. To this end, ICE continuously monitors social media platforms, such as Twitter, LinkedIn and Facebook, as well as other content available via the internet—blogs, academic websites, conferences—to identify individuals for deportation or visa denial.
In addition to compromising privacy interests and chilling freedom of expression and association, the initiative disproportionately affects racial and religious minority groups. For instance, the Muslim ban—which expanded official social media screening—inspired the program that adopted its particular vetting criteria. Thus, advocates have alleged that it is targeted at that specific community.
Moreover, the federal government’s own pilot program has demonstrated that it is not a reliable means for determining national security threats.
Enact the No Ban Act
The National Origin-Based Anti-discrimination for Nonimmigrants Act, introduced by Rep. Judy Chu of California, prohibits discrimination on the basis of religion and the executive’s ability to issue similar bans. While Biden repealed the Muslim and African bans as promised, the No Ban Act prevents similar actions under future administrations.
Engy Abdelkader is chair of the ABA Section of Civil Rights and Social Justice Rights of Immigrants Committee and a fellow with the German Marshall Fund of the United States. She teaches at Rutgers University.
