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In two weeks, the White House has swerved from taking tough action against asylum-seekers trying to enter the country illegally to taking strong action to show empathy for people who have lived for years in the US immigration shadows.
It was in early June that President Joe Biden pulled from former President Donald Trump’s playbook to severely limit protections for asylum-seekers who cross the border illegally, effectively trying to seal the border to them, and addressing a changing mood in the country with regard to asylum-seekers.
That move angered many progressives and immigration advocates and drew a lawsuit by the American Civil Liberties Union. But those groups will now cheer Biden’s move Tuesday, offering new protection to hundreds of thousands of undocumented immigrants – specifically some spouses of US citizens and their children – who are already in the US. The move could grant legal status to about 500,000 American families, according to the White House.
Biden promises empathy; Trump promises mass deportation
The new executive action offers a major contrast with Trump, who is promising to deport more than 10 million people from the US if he’s elected to a second term. At the White House, Biden argued Trump’s deportation policy would “rip spouses and children from their families, homes and communities and place them in detention camps.”
From CNN’s report by Michael Williams:
Under current federal law, an undocumented person who enters the United States and marries a US citizen must first request parole before applying for legal residency. That process requires them to leave the country if they were there illegally, upending their careers and families and creating uncertainty about whether they would be authorized to reenter.
Tuesday’s action allows those spouses to apply for residency without needing to leave the United States – a key change that the Biden administration argues will keep families intact.
Undocumented immigrants eligible for the program will have to apply, but they can stay in the US as the process unfolds. The must have been married by June 17, before the new action was announced, and they must have been in the US for at least 10 years.
Is this necessary?
One Biden critic argued the new policy is unnecessary since few long-standing undocumented immigrants who are married to a US citizen would ever be deported.
“I’m trying to understand the problem that the Biden administration is trying to solve here, and I just don’t see it,” Chad Wolf, an acting secretary of the Department of Homeland Security during the Trump administration, said on CNN. He did not address Trump’s deportation pledge during the interview.
Seeking ‘balance’
Rep. Adriano Espaillat, a New York Democrat who is the first former undocumented immigrant elected to Congress, told CNN’s Brianna ?Keilar that while he does not support the asylum action announced earlier this month, the addition of protection for undocumented spouses and their children “balances that out in a real smart way.”
He argued the immigration debate is too large for one single fix.
“Just to do (border) enforcement or just to do what we’re doing today alone is not an answer to the vast majority of the American people that are concerned about this,” Espaillat said.
“The immigration debate is very broad,” he added. “It’s complicated, and these are very specific items within that broader debate that are being addressed.”
Legal limbo
Biden’s move could also lack permanence. An important caveat to any immigration action is that since Congress continually fails to address the immigration issue, anything a president does with executive power might be reversed by the next administration or invalidated by courts.
Look no further than the Deferred Action for Childhood Arrivals, or DACA, program enacted by the Obama administration in June 2012, another strong executive action positioned for effect in an election year. Still proud of that policy, Biden announced his new program in conjunction with the 12th anniversary of DACA.
Obama enacted DACA; Trump tried to end it
The DACA policy was enacted after bipartisan, comprehensive immigration reform efforts failed for the umpteenth time. It was meant to bring people brought to the US illegally as children, frequently referred to as “Dreamers,” out of the shadows and allow them to build lives in the country where they grew up.
Nearly 600,000 people have sought protected status under the program, which defers but does not necessarily end any immigration action against them.
The Trump administration tried to end the DACA program in 2017, but the effort eventually failed at the Supreme Court in 2020. Instead, Trump hit pause on new applications, something the Biden administration then reversed.
Would today’s Supreme Court protect DACA?
After the Biden administration tried to formalize the DACA process, a federal judge in 2021 agreed with Texas and other states that the program must be ended, again halting new DACA applications. That case is now under appeal and could land the DACA issue back at the Supreme Court.
When a divided 5-4 court prevented the Trump administration from ending DACA in 2020, Ruth Bader Ginsburg, a liberal justice, was still on the court. She has been replaced by a conservative, Justice Amy Coney Barrett. In 2020, Chief Justice John Roberts infuriated conservatives by joining the liberal block of justices to rule against Trump on technical grounds. The new case and the new makeup of the court mean DACA is far from safe.
Congress could, of course, fix all of this with action, but it has failed to pass comprehensive reform despite attempts that go back decades. The much more modest bipartisan effort pushed by Biden earlier this year would not have helped the undocumented spouses of citizens and their children.