US President-elect Joe Biden has said that one of his first priorities will be rolling back his predecessor’s restrictive immigration policies. To do it, he may have to overhaul the Department of Homeland Security, which has been bent to President Donald Trump’s will over the past four years.
The department, created after the Sept. 11, 2001, attacks, has helped enforce some of Trump’s most divisive policies, like separating families at the border, banning travel from Muslim-majority countries and building his border wall. When the president tried to reframe his campaign around law and order this year, homeland security leaders rallied to the cause, deploying tactical officers to protect statues and confront protesters.
After agents were videotaped hauling demonstrators off the streets of Portland, Oregon, into unmarked vans, department critics called for systemic changes to the agency, or even its dismantlement. But the incoming administration is intent on keeping the department intact.
Still, change is coming.
Interviews with 16 current and former homeland security officials and advisers involved with Biden’s transition, and a review of his platform, suggest an agenda that aims to incorporate climate change in department policy, fill vacant posts and bolster responsibilities that Trump neglected, including disaster response and cybersecurity.
But undoing Trump’s immigration policies will initially dominate.
Many of the Trump administration’s policies cannot be immediately undone, and Biden is likely to face an early test if migration to the southwestern border surges with Trump’s pending departure.
That could be politically fraught, balancing the demands of the Democratic left for more lenient immigration policies, with the concerns of moderates who fear such issues cost the party dearly in House and Senate elections this month. Trump campaigned on a hard-line immigration agenda when he won the election in 2016, and the policies remain a central appeal to many who have supported Trump.
“If it looks like they’re just kicking the can down the road, then people will be very angry,” said Marisa Franco, executive director of Mijente, a Latino civil rights organization, who served on a task force that issued recommendations to the Biden campaign.
Trump measured the success of his homeland security secretaries primarily by the progress of his border wall and the monthly totals of arrests made by his border agents.
The 23-member transition team announced by Biden last week indicates he will bolster the other responsibilities of the sprawling department. The team includes at least four former officials with Citizenship and Immigration Services, the legal-immigration agency that has been mired in financial struggles. The leader of the team, Ur Jaddou, was a chief counsel for the agency under President Barack Obama and frequent critic of Trump’s policies.
The group also features multiple former Obama administration officials who focused on cybersecurity, emergency response and transportation security. Trump had a team of only four transition advisers for homeland security.
“If you look at what’s going on in the world now, in addition to border security and TSA airline issues, you have a pandemic and an unprecedented hurricane season,” said Michael Chertoff, a homeland security secretary under President George W. Bush, referring to the Transportation Security Administration. Biden, he said, will take “a broader-based, more strategic approach.”
A team composed mostly of volunteers separate from Biden’s official transition team has worked for weeks on that approach. Those volunteers, including Obama’s former director of the Domestic Policy Council, Cecilia Muñoz, and his former deputy homeland security adviser, Amy Pope, have focused on infusing climate change research into the decision-making of the next department leadership.
While the agency will not become “the department of climate,” one adviser said, the new administration will use the research to shape natural disaster response and resilience to assist the Coast Guard as it patrols the Arctic. The next homeland security leaders could rely on climate science to predict migration from places like Guatemala, where coffee rust has disrupted the crops farmers rely on.
“This is something that needs to be a long-term priority for DHS,” said Thomas S. Warrick, a former top counterterrorism official in the department and a co-author of a report this year that emphasized the department’s future roles defending against cyberthreats, pandemics and white supremacy.
Warrick’s co-author, Caitlin Durkovich, is on Biden’s official transition team.
The volunteer team has emphasized that change will come not from a drastic restructuring but from personnel. Of the 74 leadership positions at the Department of Homeland Security, 18 are either vacant or held by an acting official. Even those serving in acting capacities have had their appointments questioned by government watchdogs and the courts. As recently as Saturday, a federal judge said Chad F. Wolf, the acting secretary of homeland security, was not serving lawfully when he issued a memo in July suspending protections for immigrants brought to the United States as children.
Two advisers involved in the planning meetings said the team was advising the incoming administration to steer clear of all officials who led the agencies overseeing immigration, even those who publicly resisted the White House’s efforts or publicly turned against Trump.
They are “poisoned,” one adviser said.
Some transition officials have rallied around Alejandro N. Mayorkas, a former homeland security deputy secretary and director of Citizenship and Immigration Services, to be the next secretary.
Mayorkas’ supporters believe his background as a U.S. attorney for California and as a Cuban immigrant would appeal to both the law enforcement officials in the agency and the immigrant communities in the United States. They emphasized that a decision on the position had not yet been made.
But reinstating officials who served under Obama, who was criticized as the “deporter-in-chief” and who expanded detentions at the border to respond to a surge of migrants, could cause consternation on the left.
“My hope is people can see some of the errors of their ways,” Franco said, adding, “We’ll be vigilant.”
The Trump administration enacted more than 400 changes to tighten or choke off immigration, and while Biden can roll back the ones issued through executive orders or policy memorandums, rescinding policies that went through the full regulatory process will take time, according to Sarah Pierce, a policy analyst for the Migration Policy Institute.
“On immigration, I expect them to stick to things that are high profile, very easy procedurally and come with minimal logistical burden,” Pierce said.
That includes ending travel bans that restrict travel from 13 mostly Muslim and African countries and halting the Trump administration’s efforts to strip protections for about 700,000 young immigrants brought to the country as children.
Biden also plans to raise the cap on refugee admissions to 125,000, impose a 100-day moratorium on deportations and direct Immigration and Customs Enforcement to focus on violent offenders. But it remains unclear how he will rebuild a deteriorated resettlement system to welcome that many immigrants or the specific details of his temporary halt on removing immigrants in the country illegally.
The new administration will end the national emergency declaration that allowed Trump to divert billions of Pentagon dollars to the border wall, but an adviser involved in the transition said there were no plans to dismantle the 400 miles of wall already up.
Other regulations will prove more challenging to unravel, like the maze of asylum restrictions imposed by the Trump administration and the public charge rule that allows green cards to be denied to immigrants who are deemed likely to use public assistance.
Pierce said the new administration could begin the lengthy process of replacing the Trump regulations or, given that the public charge rule is still being litigated in court, revise that regulation in a settlement.
Biden has also revived the long-standing Democratic goal of creating a path to citizenship for nearly 11 million immigrants who lack legal status — but without a Democratic Senate, that is likely impossible. (Control of the Senate rests on two Senate runoff races in Georgia in January.)
An expected surge of migration to the southwestern border in the coming months will test Biden’s ability to balance the demands of the liberal and moderate wings of his party while preventing overflowing border facilities.
“We will treat our immigrants with respect and give them due process, which they aren’t having under this administration,” said Rep. Lucille Roybal-Allard, chair of the House appropriations subcommittee on homeland security who represented the Biden campaign in platform negotiations with Sen. Bernie Sanders. “Will that be enough? Probably no.”
The pandemic is another immediate challenge.
A threat assessment released by the Homeland Security Department in October concluded that the coronavirus had exacerbated “underlying economic and political conditions in the region” that have typically fueled migration.
Biden has said he will look to revive a version of a program that allowed children and young adults to apply for refuge in their home country, rather than making the long, dangerous trip to the border to ask for asylum. He has also said he would bolster aid to Central America while deploying attachés from the Justice and Treasury Departments to combat corruption.
But at the physical border, Biden’s plans center more so on what he will stop rather than what he will develop.
Biden has said he will stop “metering,” which restricts the number of migrants who can seek protection at border ports. It is unclear if he would pull out of agreements with Central American countries that allow the United States to divert migrants seeking protection back to the region. He would end Trump’s “Remain in Mexico” policy that has sent more than 60,000 migrants back to Mexico to await asylum hearings that have been suspended during the pandemic.
Biden’s advisers have discussed rushing asylum officers and immigration judges to the border to process those families and others seeking protection.
“The real question is scale. Can they be scaled up quickly enough if there is a surge to the border?” said one official involved in the transition.
Biden has not committed to lifting a public health emergency rule that has essentially sealed the border to asylum-seekers. The Trump administration has cited the risk of the pandemic to empower Border Patrol agents to rapidly turn migrants back to Mexico or their home countries without providing the chance to have their asylum claims heard. An adviser to the campaign said the administration planned on consulting with public health officials to discuss the policy.
Biden advisers also acknowledged the need to bolster the capacity at the Department of Health and Human Services, which is responsible for sheltering migrant children traveling alone. That will take congressional approval.
Biden has said he would cut funding used to detain migrants and instead rely more on programs that track migrants after they are released into the United States to make sure they appear at immigration court.
Brandon Judd, president of the National Border Patrol Council, the Border Patrol’s union, said that would mean the return of “catch-and-release,” pejorative shorthand for releasing migrants from detention into the public to await their immigration hearing. Trump has argued the policy encourages migration.
“Obviously my members were hoping President Trump was going to win, and they were hoping he was going to win because of what happens with border security,” Judd said. “Let’s hope Biden proves us wrong. But we’ve already seen this movie and we expect a replay.”