Biden Administration Under Pressure To Do More On Detention

On May 20th, the Biden administration announced that it would end the use of two controversial detention facilities used by Immigration and Customs Enforcement (ICE) in Georgia and Massachusetts. The decision was issued to ICE in a memo by Homeland Security Secretary Alejandro Mayorkas, noting that the move was the “first step” in addressing conditions in immigrant detention facilities. The announcement came as President Joe Biden faced mounting pressure after immigration advocates demanded he fulfill campaign promises on immigration detention. 

After more than 100 days in office, the Biden administration had yet to live up to many of its immigration campaign promises or take any meaningful steps to reform or end detention. This left many advocates frustrated with the President's handling of the issue and his interaction with activists who confronted him. 

During an appearance in Georgia in late April, Biden was confronted by immigration advocates demanding that he take action to close detention facilities used to detain immigrants. Biden’s speech was meant to commemorate his first 100 days in office, instead it served as a stark reminder of his failed campaign promises, specifically on ending the operation of private immigrant detention facilities. The protestors demanded that Biden “end detention now” and also appears to have shouted out the “Community not Cages” campaign spearheaded by Detention Watch Network. 

Biden responded to the demands by attempting to appease the protestors. "I agree with you. I'm working on it, man," Biden said. "Give me another five days." Many immigrant advocates took this as a sign that the administration was working on a major announcement involving private detention facilities and would reveal a plan within the following five days. 

"There should be no private prisons, period. None. Period ... Private detention centers: They should not exist, and we are working to close all of them.” Biden added.

Far from providing a real timeline or clarity about forthcoming policy changes, Biden skirted accountability or what seems an earnest acknowledgment of the issue. Though Biden’s response appears to have provided a ray of hope for forthcoming policy changes, the President later stated that he was, in fact, “teasing” the protestors. 

When asked about it during a White House briefing, Biden responded, “I was teasing about — you know, I can’t get — I have to get it passed.  And that’s what I — but I do support eliminating funding to private prisons.”

Biden’s comments were particularly hypocritical given that his original campaign promise included ending the use of for-profit prisons and immigration detention facilities, leading to him signing executive orders to end the use of private prisons in January. Critics have pointed out that Biden’s order has done little to stem issues related to mass incarceration and will likely result in individuals being transferred from private facilities to public ones, as opposed to being released. It is estimated that only 14,000 individuals nationwide are held in private, for-profit federal prisons.

Immigration advocates have long demanded that Biden live up to his campaign promise to end the use of private detention in the context of immigration detention and, in fact, end the use of detention as a whole.

Biden’s response to his broken campaign promises is arguably incoherent and offensive. The President has the ability to act decisively on the issue of immigration detention and does not have to “get it passed” when deciding to end the use of private detention. 

The lack of action on immigration detention is particularly concerning given that ICE has recently ramped up enforcement, increasing the number of individuals in detention. According to Detention Watch, “ICE is reporting that there are 20,430 people in its custody as of 5/14, a nearly 33% increase since the start of the Biden administration when there were 15,415 people in ICE custody.”

As if to underscore just how far apart the administration's actions are from their campaign promises, the Biden administration also appears to be in talks with the notorious GEO Group to extend a contract for detention services in Florida. 

The move to close two of the most notorious detention facilities may be an indication that the administration understands the mounting pressure, but some advocates may view it as too little too late. 

While advocates await changes at the federal level, they are not sitting by idly. In addition to campaigns calling for action from Biden, activists have supported state-level policy pushes to ban the use of for-profit ICE detention facilities as one of the key strategies to abolish these types of facilities. These grassroots efforts to challenge the detention system may ultimately do more to end the industry than any President in the near future. 

Five issues the Biden administration must address on immigration

The electoral victory of Joe Biden over Donald Trump is cause for relief and celebration for many, but perhaps none more than immigrants and those who work to protect their rights. For four years, the Trump administration actively and openly worked to undermine legal protections for immigrants coming to or residing in the United States and instituted draconian policies designed to terrorize, brutalize, and criminalize immigrants. Now, as the country prepares for a new administration, many are wondering what immediate steps Biden may take to address the damage done by Trump on immigration. 

According to the New York Times, the Trump administration enacted more than 400 changes to the immigration process. Some of those policy changes were implemented through executive orders, which can easily be overturned, while others went through the full regulatory process and will take time to change.

As attorneys and advocates at Immigrant Legal Defense (ILD), we remain committed to protecting all immigrants' dignity and due process and will demand accountability from every presidential administration. The following are five critical areas the Biden administration must address to correct the wrongs our immigrant communities face. 

Protect DACA

The Biden administration should take immediate steps to protect and restore the Deferred Action for Childhood Arrivals (DACA) program, something which he pledged to do during his campaign. The Trump administration sought to end the DACA program in 2017, resulting in a lengthy legal battle and leaving more than 800,000 DACA recipients in limbo for years. 

Protecting and restoring the DACA program would not only provide DACA recipients with stability and support and allow for new applications but also help restore trust and faith between federal officials and immigrant communities. This trust is more critical now than ever as our society works to come together to confront challenges like COVID-19 and economic instability.

The restoration of DACA should be viewed as a simple and immediate step of a broader push to provide Dreamers and other immigrants a pathway to full citizenship, but it is an important place to start for the Biden presidency. Because DACA was initiated through an executive action, it is squarely within the President’s purview to restore the program, though a more permanent solution to the issue will need to come from Congress.

Uphold TPS Status

A similar opportunity for immediate action for the incoming Biden administration exists on the issue of Temporary Protected Status (TPS), which, like DACA, has left the fate of hundreds of thousands of immigrants in limbo for years. The sudden loss of status for TPS holders, some of whom have been residing in the United States for decades, would be disastrous, especially during a global pandemic. 

Read more about the fight over TPS in our previous blog posts here. 

Unlike DACA, which provides protection to a class of undocumented immigrants based on specific criteria, TPS status has been awarded to individuals from various countries at different periods of time based on conditions in their home country. As a result, any decision to include or exclude certain subgroups can present certain complications. For example, some may argue that TPS should end for certain countries that are no longer the scene of specific conflicts or humanitarian disasters. Advocates would counter that many of those countries now face new challenges that will make them unsafe for return and that those who have resided in the United States, often with mixed-status families, should be allowed to stay. 

Taken in the context of the prior four years, the global pandemic, and the need to favor inclusion over exclusion, the restoration of TPS across the board should serve as a natural starting point for the Biden administration.

The Biden campaign stopped short of promising to keep TPS in place across the board and instead promised to “immediately review every TPS decision made by the Trump administration and overturn all those that do not appropriately consider the facts on the ground.” 

The issue could serve as an early indication as to whether the Biden administration will seek to promote policies focused on compassion, providing humanitarian relief, and ensuring family unity or pursue a hard-line approach on these issues. 

Abolish ICE & Detention

The Trump administration will go down in history for its barbaric treatment of immigrants, weaponizing federal agencies as tools for fear, family separation, and the detention of immigrants. One of the central pillars of the Trump administration's reign of terror against immigrants was the utilization of Immigration and Customs Enforcement (ICE) as a tool to spread panic, conduct raids, and expand detention. 

Although the use of ICE to conduct raids and facilitate detention was not unique to the Trump administration, with many rightly pointing out that the Obama administration also carried out immigration raids, it was the callous cruelty and malice with which ICE operated under Trump that has led many to call for the abolition of the agency as a whole.

In July of 2019, Trump attempted to use the threat of mass raids to force Congress to pass legislation on asylum, effectively holding undocumented communities hostage and using federal agencies as stormtroopers in communities of color. Countless examples of ICE abuse and cruelty were documented during his tenure, arguably peaking in 2020 when news came out of forced hysterectomies in ICE detention and a dramatic increase in deaths in detention. 

This track record is the reason why so many believe that ICE should be abolished as an institution, along with immigrant detention, which is both needless, cruel, and counterproductive. After so much horror and heartbreak, the Biden administration should reimagine immigration detention policy by dismantling this rogue agency.

To date, Biden has not made a clear commitment to dismantle ICE, though he has promised to end the use of for-profit corporations, which make up more than half of all detention facilities nationwide. Biden has also committed to implementing a “100-day freeze on deportations while his administration issues guidance” on enforcement priorities. 

As a result, it is important for advocates and allies of immigrants to ensure that the Biden administration does not simply revert to Obama-era policies on enforcement and detention, which resulted in a broad-based detention system and millions of deportations.

Change Border Policies and Safeguard Asylum

There is perhaps no clearer example of the Trump administration’s cruelty than its policies at U.S. borders, including the “Muslim” travel ban, the destruction of asylum protections, and inhumane family separation. Each of these policies had devastating impacts on individuals and their families and resulted in needless suffering for millions of people. The treatment of immigrants, migrants, and asylum seekers at the border forms the foundation of immigration policies and practice, and careful attention should be paid to what the Biden administration does in this arena. 

Biden has made a commitment to immediately end the travel ban as soon as he begins his term, and has pledged to “[R]eassert America’s commitment to asylum-seekers and refugees”, claiming that he will take steps to reverse Trump border and asylum policies within 100 days of being in power. According to a New York Times report, “Mr. 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.” In addition, Biden has also indicated that he will reverse draconian measures at the U.S.-Mexico border, including the “Remain in Mexico” program, which forced migrants seeking asylum in the U.S. to remain in Mexico while they awaited their day in court. 

Many of these reversals are a welcome sign for advocates and asylum seekers, though the Biden administration has yet to provide specifics about an affirmative agenda related to asylum and migrants. It is imperative to not only demand that the Biden administration safeguard asylum laws but also a clear push to defund agencies such as ICE and CBP, which enforce family separation and invest in institutions that help resettle migrants, reunify families, and expand asylum to adapt to the modern and future challenges posed by climate change, global inequality, and mass displacement. 

Restore Trust in the Process

One of the most serious and devastating blows to the immigration process in this country under the Trump administration has been the erosion of trust, transparency, and fairness in the immigration process. This includes the destruction of due process, accountability, and fairness in immigration courts, the use of executive orders to attack immigrants, or the shift of United States Citizenship and Immigration Services (USCIS) from an agency designed to confer benefits to an agency of exclusion, led by an alleged white supremacist. A hallmark of the Trump era has been to undermine or disrupt all levels of the immigration process, severely restricting legal immigration into the country.

The impacts of these policies on America’s immigration process are significant and will likely take years to undo. The process will include attempting to deal with millions of cases that have been disrupted or denied proper adjudication before agencies like USCIS, the Department of State, and the immigration courts, while the longer-standing challenge will be to repair faith between these institutions and those who access or work with them. It is difficult to estimate the impact that these policies have had on immigrants awaiting a visa appointment abroad or those inside the country seeking to apply for benefits, but it is not difficult to believe that serious damage has been done.

To begin the process of restoration and healing, the Biden administration should make time and space to meet with community members, impacted people, and advocates in order to develop partnerships and solutions to move forward. Careful consideration should be paid to restoring due process, transparency, and fairness in the immigration process. Restoring trust can also begin with repealing and removing policies that increase fees for immigration applications, expedite deportations, or seek to deny immigrants status based on their use of certain types of public assistance.

This process will not happen overnight, but the early steps of the Biden administration will go a long way in building an immigration platform that works for everyone. 

Each of these five areas will provide a critical test for the Biden administration's ability to work with and protect immigrants and will require renewed dedication and vigilance from advocates and organizers. The election of Biden is certainly a reason for optimism, but we must continue to demand immediate restoration, protection, and expansion of the rights of our communities.

As we prepare for the transition to a new presidency, ILD will remain steadfast and determined in advocating for our clients, our community, and a country made by and for immigrants.