For too long, extremist lawmakers and commentators have shaped the immigration debate through misinformation and rhetoric that demonizes people seeking safety and a better life. The result is a punitive, enforcement-oriented approach to immigration policy that has caused great harm and worsened humanitarian and operational challenges in the midst of a global increase in forced migration.
The Biden administration must reclaim the narrative. Trying to out-do the extremists with increasingly harsh stances will never work politically and will come at an unbearable human cost. The administration should instead acknowledge immigrants’ deep connections to U.S. communities, champion their contributions to the United States, and uphold values of welcoming and respect for human rights.
Following are 10 actions the administration can take now – without legislative action from Congress – to further immigration policies that actually work while embracing humanity and compassion:
A smart and integrated approach to new arrivals
- Create a White House task force for coordinating reception and welcoming services among the federal government, state and local governments, and civil society.
- Focus resources on processing at ports of entry and adjudications of asylum, work authorization and other applications.
Integration and support, not incarceration and punishment
- Phase out the use of immigration prisons and strengthen non-custodial support for people in the immigration system.
- Stop the harmful entanglement of local law enforcement and federal immigration enforcement by phasing out the 287(g) program.
- Dismantle Texas's Operation Lone Star.
- End the use of federal criminal prosecutions for migration-related offenses.
Fairness and due process in asylum and immigration adjudications
- Prioritize fairness and efficiency in asylum and immigration court adjudications.
- Respect and maintain the fundamental right of migrants to seek asylum at the border, regardless of manner of entry or transit.
- Establish a central unit to consider requests for a Chance to Come Home for people who have been wrongfully deported.
Affirmative lawful protections for undocumented communities
- Create affirmative protection programs for new arrivals and undocumented communities.
***
Smart and integrated approach to new arrivals
1. Create a White House task force for coordinating reception and welcoming services among the federal government, state and local governments, and civil society.
The White House should create a coordinating body to integrate the approach of the federal government, state and local governments, and civil society organizations in welcoming migrants seeking safety in the United States. Local governments and civil society organizations have shown remarkable fortitude in welcoming new arrivals, but have been constrained by the lack of systemic avenues to communicate and coordinate respite, transportation, immediate and transitional shelter, and integration services. For more, see NIJC’s Solutions for a Humane Border.
2. Focus resources on processing at ports of entry and adjudications of asylum, work authorization and other applications.
People arriving newly to the United States are eager to begin the process of integration by obtaining work authorization, employment, and the security that asylum or other lawful status provides. Immigration court and U.S. Citizenship and Immigration Services backlogs often prevent them from doing so. In its allocation of current resources, and in its forthcoming budget request to Congress, the administration must prioritize funding and support for processing at ports of entry and asylum and work authorization adjudications for those already living in the United States. In recent months, NIJC’s legal staff has participated in work authorization clinics in Chicago, sponsored by the State of Illinois, where legal services organizations partner with federal workers to expedite work permit processing for new arrivals. The administration should greatly expand this excellent initiative and pilot others like it. For more, see Human Rights First’s recommendations for upholding and upgrading asylum.
Integration and support, not incarceration and punishment
3. Phase out the use of immigration prisons; strengthen non-custodial supports for people in the immigration system.
Incarcerating migrants while they await their immigration court cases is fiscally irresponsible, morally reprehensible, and operationally ineffective. Immigration and Customs Enforcement (ICE)’s sprawling network of private prisons, including the abusive use of solitary confinement, is a stain on the United States’ human rights record. The administration should begin phasing out the use of private prisons for immigration processing, and instead increase the availability of legal services and community-based integration services, which are proven to support compliance while building healthier communities. In Fall 2023, ICE itself identified at least nine facilities that require immediate closure due to unsafe conditions and egregious violations, but nevertheless most remain open today. For more, see NIJC’s Roadmap to phasing out immigration detention.
4. Stop the harmful entanglement of local law enforcement and federal immigration enforcement by phasing out the 287(g) program.
Programs that entangle local law enforcement and federal immigration enforcement have a documented track record of undermining public trust in government institutions and exacerbating racial profiling. Many prominent law enforcement officials have urged an end to these programs, noting the myriad ways they undermine community policing goals. On the campaign trail, President Biden vowed to “aggressively limit” the use of 287(g) and other entanglement programs. Making good on this promise of ending 287(g) agreements will go a long way toward ensuring immigrant communities can go about their daily lives without a constant cloud of fear. For more, see NIJC policy brief on entanglement programs.
5. Dismantle Operation Lone Star.
Operation Lonestar, Texas Governor Greg Abbott’s affront to the federal government’s authority over immigration policy, has created a human rights crisis in Texas including rampant constitutional violations arising from state arrests and prosecutions and inhumane conditions of incarceration. A mother and her two children recently died by drowning in the Rio Grande, caught in the crosshairs of the governor’s anti-immigrant policies. Although the Department of Justice reportedly opened an investigation into Operation Lone Star, its work and findings have not been made public. Simultaneously, the ACLU of Texas has documented extensive collusion between Customs and Border Protection (CBP) and Operation Lone Star state agents. The federal government must aggressively move to dismantle Operation Lonestar by investigating the program’s civil rights violations, strictly prohibiting any collaboration between CBP and Operation Lone Star, shielding people subjected to Operation Lone Star prosecutions from deportation, and reuniting families separated by the sprawling program. For more, see Project on Government Oversight commentary on Operation Lone Star.
6. End the use of federal criminal prosecutions for migration-related offenses.
The most frequently brought prosecutions in federal courts are those for immigration-related offenses. Criminal prosecutions for unauthorized entry and reentry charges are layered on top of the already punitive civil immigration consequences people face for unauthorized entry, and waste millions in taxpayer dollars. The U.S. government’s own studies have found that such prosecutions do not deter migration. Further, these prosecutions almost exclusively impact people from Latin America, continuing a racist legacy that traces back to the laws’ origins. De-prioritizing and ultimately ending migration-related prosecutions is central to the administration’s ability to make good on its commitment to keep families together, reduce mass incarceration, and address ongoing harms. For more, see NIJC’s fact sheet on prosecutions.
Fairness and due process in asylum and immigration adjudications
7. Prioritize fairness and efficiency in asylum and immigration court adjudications.
In the name of efficiency, the Biden administration has rolled out numerous initiatives that undermine fundamental due process and access to counsel for people seeking asylum in the United States. These programs include: the Family Expedited Removal Management (FERM) Program, which rushes families through expedited asylum screening while under heavy surveillance, and the expansion of expedited removal processing in CBP and ICE custody. Further, the administration has failed to curb practices that unfairly prejudice people in asylum and immigration court proceedings, including deportation and detention decisions made on the basis of unreliable allegations included in police reports and data shared by foreign governments.
The administration has the opportunity to assert and demonstrate its commitment to due process and legal access by ending FERM and the use of expedited removal in custody and instead pursuing its own regulatory proposal to streamline asylum processing before U.S. Citizenship and Immigration Services (albeit with adjusted timelines and other needed adjustments to protect due process). The administration should also put protective measures in place to guard against the use of unreliable evidence in immigration adjudications. For more, see NIJC’s explainer “Too fast for fairness.”
8. Respect and maintain the fundamental right of migrants to seek asylum at the border, regardless of manner of entry or transit.
United States asylum law clearly states that any person arriving at a United States border – regardless of their status or manner of attempted entry – is entitled to apply for asylum. This law is the result of bipartisan U.S. lawmaking that codified the right to non-discriminatory access to asylum at U.S. borders, bringing the United States into compliance with the international Refugee Convention. Today, the American public overwhelmingly supports asylum access. The Biden administration must move urgently to withdraw its asylum ban, which NIJC and partners are challenging in the federal courts because it blatantly precludes people from asylum access because of their manner of entry. For more, see “Joint Delegation Report Details Harms of Biden’s New Asylum Ban.”
9. Establish a central unit to consider requests for a Chance to Come Home for people who have been unjustly deported.
For decades, the U.S. immigration system has deported thousands of people, permanently separating them from family and community. In some cases, the deported had strong legal grounds for remaining in the United States. In others, the government abused its discretion, imposing detention and deportation in grossly unfair ways. The unjustly deported, who now seek to return and reunite with loved ones, include U.S. military veterans, civil rights activists, former Deferred Action for Childhood Arrivals (DACA) recipients and a disproportionate number of Black and Brown immigrants. The Biden administration has the chance to reunite families, bring integrity to the long-compromised immigration system, and promote racial justice by establishing a centralized unit to give meaningful consideration to requests for return for the unjustly deported. For more, explore NIJC’s Chance to Come Home campaign page.
Affirmative lawful protections for undocumented communities
10. Create bold affirmative protection programs for new arrivals and undocumented communities.
For decades, Congress has failed to provide a path to lawful status and citizenship for millions of people who are integral members of our communities, but the Biden administration is far from powerless to provide protections. In the face of congressional inaction, the administration must take affirmative actions to protect DACA recipients and all undocumented immigrant communities who live under permanent threat of deportation and separation from their loved ones. The administration must utilize all tools at its disposal, including designations and re-designations of Temporary Protected Status, dramatic expansions of existing parole programs and the creation of new ones, and regulatory measures to allow people with long-standing ties in the United States to seek affirmative protection.
The United States has much to learn from other countries similarly responding to increasing numbers of forcibly displaced people arriving at their borders. Colombia, for example, has received more displaced Venezuelan migrants than any other country in the world – nearly three million Venezuelans resided in Colombia as of late 2022. Much of Colombia’s success in welcoming and integrating such large numbers of people in need is attributed to programs that ensured accelerated opportunities for arriving Venezuelans to regularize their status and transition to a pathway to lawful status. Research found these programs resulted in higher wages and employment rates without negatively impacting employment for the local population. For more, see Colombia case study of migration from Venezuela.
For more information, contact NIJC Director of Policy Heidi Altman by email.