PRESIDENT TRUMP has significantly altered almost every corner of the US immigration system, beginning with his Muslim travel ban days after his inauguration and ending with a recent effort to tailor which immigrants can apply for work visas.
A second Trump term, say Massachusetts immigration advocates, would bring more of the same, while a win in today’s election by Joe Biden would herald a return to the far more immigrant-friendly policies of the Obama administration in which he served as vice president.
Partisan gridlock in Congress has meant no movement on a comprehensive immigration reform bill, but Trump has forged sweeping change through over 400 immigration-focused executive actions.
Biden has vowed, if elected, to boost refugee admission, reinstate the former rule governing DACA, and end the targeting of undocumented immigrants for deportation. But it would take considerable effort for him to roll back all the Trump changes, many of which are tied up in courts with legal challenges.
“There’s so much damage that a Trump administration has done these years. They’re just not being able to undo everything, certainly not right away,” said Eliana Nader, chair of the New England chapter of the American Immigration Lawyers Association.
A second Trump term would like be a lot like his first — but probably with even more immigration restrictions put in place. Senior adviser Stephen Miller, who has been heavily involved in guiding immigration policy, already promised that the president will limit asylum grants, apply a heavier hand toward sanctuary cities, expand travel bans for a fourth time, and tighten restrictions around work visas.
The impact of a Trump or Biden victory will be felt keenly in Massachusetts, home to 1.2 million immigrants, or one in six residents.
One of the most aggressive changes in immigration policy pursued by Trump has been in refugee resettlements, where numbers are down 90 percent from 2016.
The administration strictly limited refugee arrivals in April, saying it was due to the pandemic. But the drop in refugees allowed into the US started long before COVID-19 hit.
There were about 85,000 resettlements in 2016, President Obama’s final year in office, a figure that dropped to 11,814 in fiscal year 2020, which ended September 30, partially due to the temporary pause on admission this spring and summer. Massachusetts numbers have dropped from 2,453 resettlements in 2016, to just 297 in fiscal year 2020.
Additionally, three separate bans on immigrants —including refugees—from primarily Muslim and African countries have decimated the populations of refugees that have come from places like Yemen, Syria, Iran, and Iraq in the past four years.
“It seems clear to me that if Trump is reelected, he will be more empowered to attack refugees and immigrants,” said Jeffrey Thielman, director for the International Institute of New England, a resettlement organization.
“We have lots clients that are desperately waiting for family members to come here or try to get them to come, often living in the same dangerous situations back where they lived and fled violence,” said Thielman.
Trump recently tried to stir the pot on refugee admissions on Twitter, claiming to have suspended the entry of refugees from “terror-compromised nations,” and falsely claimed Biden would increase refugees by 700 percent in only swing states.
According to the United Nations High Commission for Refugees, displaced persons don’t choose the countries they are resettled in, but can become candidates to move to a specific country if they have family ties there. This similarly applies to states and cities.
Biden says he will set the annual global refugee admissions cap at 125,000, even higher than in Obama’s last full year in office, and seeks to raise it over time according to global needs.
Over the past year, the Trump administration has accelerated its changes to how immigrants in the US can legally work, through emergency orders and little publicized policy changes. Currently, the number of employment-based visas is capped at 140,000 each year.
The most recent change came in October from the Department of Homeland Security, which sought to replace the H-1B visa lottery, used by foreign professionals with specialized knowledge to get 85,000 new visas per year, although it is unclear what they wish to replace it with. The base salaries employers must pay foreign workers applying for visas has increased.
“We’ve been seeing that basically across the board, there was about a minimum salary of $208,000,” said Mahsa Khanbabai, a local immigration attorney, arguing that this isn’t “doable or realistic” for employers. The change, she said, was made without a public comment period, and will cause employers to not hire highly qualified foreign workers for jobs they’re unable to fill with American workers.
The administration has argued that employment visa programs artificially depress wages. The US Chamber of Commerce has criticized the administration’s move, saying it will deny employers access to talent and disrupt operations.
Commerce and business associations have filed lawsuits challenging these rules, most of which would go into effect by the third week of January.
Trump had already suspended the H1-B visa program, along with the issuances of other work visas, at the beginning of the summer. This barred hundreds of thousands of immigrants, including seasonal workers and young immigrants in summer exchange programs from coming to the country. In June, the Trump administration said this is all being done to save 525,000 US jobs during the economic fallout of the coronavirus pandemic.
Joe Bishop is president of Peak Season Workforce, which helps employers on Cape Cod apply for H2-B visas, or temporary visas for non-farm employment like at ice cream shops, or seasonal tours. Bishop said in June he was “angry, then disappointed” to find out that the program is shut down for the rest of the year. He thinks the reasoning for the shutdown didn’t add up. He and other employers argue that immigrants coming from abroad aren’t seeking to fill the same jobs recently laid off Americans want.
“I know with COVID there’s the idea of so many people looking for work, but these jobs aren’t traditionally filled by the people being laid off,” he said. “These aren’t going to be filled by people who had full-time jobs with benefits.” The organization places about 250 immigrants with Cape employers per year.
In October, a federal judge reversed the ban on foreign workers under the H1-B and similar programs.
“I think they’re going to take a slash and burn policy — especially if Trump loses — between November and January, where they’re going to propose even more emergency rules,” said Khanbabai.
There’s no certainty that Biden would reverse all of the Trump work visa policies.
Biden’s immigration platform says he would work with Congress to increase the number of visas awarded for permanent, employment-based immigration, but also “promote mechanisms to temporarily reduce the number of visas during times of high US unemployment.”
The most unilateral decisions the Trump administration has made are around immigration enforcement and removal. These require no congressional approval or even executive orders.
Trump reversed Obama’s practice of “catch and release,” or releasing most undocumented immigrants to community sponsors while they await immigration court hearings, as an alternative to holding them in immigration detention.
He also broadened enforcement beyond Obama’s policy of focusing on those with significant criminal records to potentially target anyone who is in the country illegally.
US Immigration and Customs Enforcement, under several acting heads, has initiated national raids in communities known to not comply with enforcement regulations, or “sanctuary cities.” The agency, in the first two years of the Trump administration, also began to target immigrants for arrest at county courthouses, including those not just there for criminal hearings, but also those testifying as witnesses and undocumented family members of those who are the subject of proceedings.
In Massachusetts, district attorneys Marian Ryan and Rachael Rollins managed to get a temporary injunction on the practice as the first prosecutors to challenge ICE in the country. ICE appealed the ruling and won, but it’s unclear how this will play out when the pandemic is over, as immigration appearances have been over video.
“I think Massachusetts can expect to be even more heavily targeted as a sanctuary jurisdiction if there’s a Trump 2.0,” said Oren Nimni, an attorney for Lawyers for Civil Rights, which co-represents Ryan, Rollins, and advocates on the courthouse arrest case.
“I don’t think that’s something you would see under Biden,” he said. ”My best prediction is that under Biden, an immigration system will look a lot like an Obama immigration system.”
Biden says that targeting people who have never been convicted of serious criminal offense is “the definition of counterproductive,” and that he would end workplace raids of undocumented immigrants.
Unlike other administrations, under Trump ICE has even decided to move forward with deportations despite a federal judge halting the action.
Nimni says the Trump administration has brought to light the “way the immigration system can be abused.”
In January 2019, the Department of Homeland Security announced the implementation of the “Remain in Mexico” program, which has allowed border patrol to keep 66,000 people, including 20,000 children, in Mexico as their claims for asylum are adjudicated. The move prompted the United Nations to cry foul on humanitarian grounds.
For many years, the requirement was that asylum applicants had to establish that they fear persecution in their home country, and that they would be persecuted on account of at least one of five protected grounds: race, religion, nationality, political opinion, or particular social group. They could do that from within the United States. This alters that, because now they’re in Mexico.
Both the US and Mexico have refused to declare an official emergency, which would allow the UN to provide oversight of camps that have cropped up along the border, where people are living for months in unsafe conditions as they wait for court hearings held in tents.
Biden has said he would end Trump’s “Remain in Mexico” program, and “restore our asylum laws so that they do what they should be designed to do –– protect people fleeing persecution and who can’t return home safely.”
Under a Biden administration, said Nimni, “We wouldn’t have programs like Remain in Mexico,” where people aren’t even getting due process that goes into a removal hearing — they’re just stuck in Mexico waiting and facing serious violence.”
Benefits and Stimulus
The Trump administration has chipped away at public benefits for undocumented immigrants and those with or in the middle of acquiring permanent residency.
In June, the Massachusetts Budget and Policy Center, a liberal-leaning think tank, estimated 55,000 undocumented immigrants in Massachusetts were at risk of losing their job or losing pay because their workplace had to close during COVID-19 shutdowns.
They were not eligible for the $1,200 federal payment all citizens and permanent residents received, even if they use an Individual Taxpayer Identification Number to pay taxes.
Advocates have hoped that a second federal relief package would help, but it has stalled in Congress. They don’t expect any legislation to include financial relief for undocumented immigrants, however, if Trump is re-elected.
Patricia Montes, executive director of Centro Presente, a statewide Latin American immigrant nonprofit, thinks things could be different under a Biden administration, but it will depend on whether Democrats also take control of the Senate.
Biden has not said if he will push for unauthorized immigrants to receive financial relief, but has framed his arguments for a pathway to citizenship for the 11 million undocumented immigrants in the US around their economic contributions.
Undocumented immigrants in Massachusetts paid an estimated $594 million in federal taxes and $253 million in state and local taxes in 2018.
The issue of what public benefits immigrants should be available to immigrants seeking legal residency has been a subject of debate long before the coronavirus pandemic.
In February, US Citizenship and Immigration Services put into effect a new “public charge” rule. The policy change effectively imposed a wealth test on green card and visa applicants, allowing for the agency to consider for the first time whether a person has used certain public programs, like the Supplemental Nutritional Assistance Program (food stamps), federal public housing and Section 8 vouchers, or Medicaid.
If immigration services concludes that a green card applicant might seek public assistance in the future, that would also be grounds to deny legal status. Federal and appeals courts have vacated each others decisions twice in the past week, with the public charge rule ending up right where it was —legal, and being implemented.
Biden has said he would reverse the public charge rule if elected.
Eva Millona, executive director of the Massachusetts Immigrant and Refugee Advocacy Coalition, said the federal court ending the rule could not have come at a better time. The public charge rule has deterred immigrants from seeking COVID-related services, she says, with many worried their information will be reported to federal authorities. “There has been a barrier for people accessing care, because they’re afraid to get tested, and afraid to access the health care they need,” she said. But shortly after her interview, the rule was put back into effect by an appeals court.
In 2017, the Trump administration reversed course on Deferred Action for Childhood Arrivals (DACA), a program launched by Obama in 2012 to keep young immigrants brought illegally into the country as children from being deported.
It provides law-abiding beneficiaries that fit certain parameters with provisional rights such as driver’s licenses, work permits, and the ability to go to college. The program benefited 700,000 immigrants nationwide, and more than 5,600 in Massachusetts before being brought to a halt.
Multiple lawsuits ensued, and the Supreme Court blocked the Trump administration effort to end to DACA in June. But the 5-4 ruling only allows young people enrolled in the program in 2017 to renew their status. It excludes the 1.5 million other eligible recipients who haven’t been able to apply in the past two years.
A second Trump term could do away with the program permanently, as the court left the door open to future lawsuits, having ruled on an administrative law technicality.
Biden has said he would reinstate the program, and also allow the young people, known as “Dreamers,” to be eligible for federal student aid.
But there is a looming threat of states opting out. Texas challenged Obama’s initial executive order on DACA, and the program would never be free from the threat of individual states electing not implement the program, without congressional intervention.
“The Biden administration could choose not to pursue arguments against DACA, but we still have a situation where a state can argue it’s unconstitutional,” said Sabrineh Ardalan, director of the Harvard Immigration and Refugee Clinic, which works with DACA recipients.
The organization has been pushing for the Dream and Promise Act, which would create a pathway to citizenship for DACA recipients. Given that the issue has drifted from enjoying bipartisan support when a version was first proposed in 2001 to a highly polarized topic in 2020, such legislation is unlikely to pass unless both the House and Senate are controlled by Democrats.