Trump-Biden race to dictate fate of U.S. immigration for generations

The 2020 presidential election will pit two drastically different visions on immigration against each other, with the victor retaining or assuming broad executive authorities that have dominated policy-making on the issue for decades in the absence of congressional action.

President Trump's reelection would allow his administration to continue cracking down on unauthorized immigrants, limiting legal immigration and curtailing humanitarian protections for foreigners. During a second term, Mr. Trump could also see through major policy changes to the U.S. immigration system that have so far been stalled by federal courts.

If victorious, Joe Biden will inherit an immigration system transformed by hundreds of changes made by the Trump administration, including a series of restrictive asylum policies, sweeping green card rules, broader deportation priorities, a decimated refugee program and pandemic-era border restrictions.

Current and former senior Department of Homeland Security (DHS) officials and people close to the Biden campaign said the process of unwinding the Trump administration's immigration policies could be an arduous and long effort.

"There has been such a demolition of our traditional immigration system under this administration, that the biggest challenge will be deciding where to begin rebuilding first," León Rodríguez, who led U.S. Citizenship and Immigration Services (USCIS) during President Obama's second term, told CBS News.

Cristóbal Alex, a senior Biden adviser, said the former vice president would take "immediate actions to undo Trump's horrific immigration policies," but conceded some "will take longer than others."

Rescinding Mr. Trump's presidential edicts, such as his travel ban on a group of mostly African and Asian countries, will be easier than scrapping the "public charge" wealth test on green cards and visas instituted through federal regulations, officials said. Other changes will require appointing an attorney general committed to overturning precedent-setting decisions, such as one issued by Jeff Sessions in 2018 to restrict asylum for victims of gang and domestic violence.

"Stated policies are fairly easy to reverse, from a practical perspective," Rodríguez said. "Regulations present a bit more complicated case. Most of the regulations that would be of concern to a Biden administration are the subject of legal challenges. And so, the status of those legal challenges will play a big role in what strategy a Biden administration would choose."

Ken Cuccinelli, the second in command at DHS, said he expects the Trump administration's legacy on immigration to endure — even if the president loses reelection. Changing regulations, he added, is "very slow."

"It's not like someone shows up on day one and can stop doing regulation A, B or C," Cuccinelli told CBS News. "Anyone looking to undo all that is going to have a lot of work to do."

Biden will be under pressure from progressives to quickly reverse Mr. Trump's changes, while also separating himself from some Obama administration practices unpopular with the immigrants' rights community. Returning to Obama-era policies, especially when it comes to deportations and the detention of migrant families, will not be sufficient, progressive activists warn.

"Biden needs to undo the harm, make advancements to decrease the level of enforcement and create other opportunities for people to get status," said Javier Valdés, the co-executive director of Make the Road New York and a member of a task force of Biden and Bernie Sanders supporters who created a unified immigration platform. "When I say undo the harm created by the U.S. government towards immigrant communities, I'm not just saying what happened under Trump. Yes, it was on steroids, but this has been a historical issue."

In 2014, as Univision anchor Jorge Ramos pressed him on the high number of deportations during his presidency and accused him of "destroying many families," Mr. Obama grew visibly frustrated.

Mr. Obama strongly defended his record on immigration, citing his creation of the Deferred Action for Childhood Arrivals (DACA) initiative for "Dreamers," as well as his attempt to create another deportation protection program for undocumented parents of U.S. citizens and green card holders. He also blamed Republican opposition in Congress for the inability to pass comprehensive immigration reform. However, the 3 million U.S. Immigration and Customs Enforcement (ICE) deportations executed during his presidency angered activists, who dubbed Mr. Obama the "deporter in chief."

More than 749,000 deportations were carried out in the fiscal years with available statistics under Mr. Trump's tenure. Midway into Obama's presidency, ICE deported more than 400,000 immigrants in a single year — a record-high.

"I always say that Trump is abusing the ICE deportation machine that Obama built," Amy Maldonado, a Michigan-based immigration lawyer, told CBS News. "And by most measures, Trump has been a lot worse than Obama, except for his actual deportations. Obama, hands down, still holds the deporter-in-chief record. Even if Trump had two terms, I don't think he could match Obama, because he's not that competent."

The Obama administration issued several memos instructing ICE agents to use their discretion to exempt some individuals, such as long-time permanent residents and pregnant women, from enforcement and to focus on deporting immigrants with certain criminal convictions, recent border-crossers and those who reentered the U.S. after being removed. During his first week in office, Mr. Trump rescinded these Obama-era policies, broadening deportation priorities and decreeing that no undocumented immigrant would be exempt from being removed from the U.S.

On the campaign trail, Biden has conceded the Obama administration "took too long" to retool its enforcement priorities, calling the number of deportations a "big mistake." He has pledged to institute a 100-day freeze on deportations. After that, Biden would oversee a "pretty significant adjustment" in deportation policy and direct ICE to focus on threats to national security and those convicted of serious felonies, according to Alex, his senior adviser.

Under Mr. Trump, ICE has increased its capacity to hold immigrants, expanding the world's largest civil immigration detention system through contracts with for-profit prison companies and county jails. It has also confined asylum-seekers for longer periods of time, often in remote immigration jails with little oversight.

Biden has vowed to stop detaining asylum-seekers for the duration of their cases, and Alex said he would also end for-profit immigration detention. "No business should profit from the suffering of desperate people fleeing violence," Alex said, adding that a Biden administration would expand programs that serve as alternatives to detention, like case management initiatives.

If elected, Biden will also face calls from the immigrant advocacy community to discontinue family immigration detention, a practice expanded dramatically by the Obama administration in 2014, when it faced a surge in unauthorized border crossings of children and families from Central America.

Through several asylum rules, the Trump administration has granted border officials the power to quickly bounce migrants off U.S. soil, effectively ending a system the president and his aides derided as "catch and release."

More than 60,000 asylum-seekers were returned to Mexico and required to wait there for their U.S. court hearings. Thousands were disqualified from asylum under a new rule because they traveled through a third country to reach U.S. soil. The administration also brokered agreements with El Salvador, Guatemala and Honduras that allow the U.S. to re-route asylum-seekers at the southern border to those countries.

While these programs have been, for the most part, suspended during the coronavirus pandemic, the Trump administration has used a public health directive issued in March to expel tens of thousands of border-crossers, including 8,800 unaccompanied children, without allowing them to apply for asylum.

Biden has promised to undo Mr. Trump's asylum programs, including the so-called "Remain in Mexico" policy, but he has yet to say whether he'd continue, alter or scrap the current pandemic-era border restrictions. His campaign did not respond to requests to state his position on these policies.

Lora Ries, a former DHS official who backs the president's agenda and helped implement it between 2017 and 2019, said dismantling Mr. Trump's asylum policies would fuel more border-crossings. "If you take away the consequences, it begets more illegal immigration," Ries, now a senior research fellow at the conservative Heritage Foundation, told CBS News.

Asked how a Biden administration would deal with a surge in border crossings, Alex said it would deploy more immigration judges and asylum officers and bolster support for non-profit groups helping migrants.

Texas Democratic Representative Veronica Escobar, a member of the Biden-Sanders unity task force, said she expects Biden to "lean in aggressively" to set aside Mr. Trump's asylum policies. She supports allowing asylum seekers to wait for their court hearings in the U.S., rather than Mexico, as well as the repeal of the pandemic-era expulsions policy.

But Escobar said the key will be to help Central America curb the main drivers of U.S.-bound migration, including political instability, gang and generalized violence, poverty and displacement caused by climate change. Alex said Biden would commit $1 billion annually in foreign aid to the region, which Mr. Trump suspended last year before partially restoring it after Guatemala, Honduras and El Salvador agreed to the "safe-third-country" asylum accords.

"It will absolutely only become more serious of a challenge," Escobar told CBS News, referring to migration to the U.S. southern border. "And mind you, these are families who don't want to leave their homelands. These are individuals who are running for their lives, escaping persecution or escaping famine that is a result of the climate crisis."

In a recent interview, Cuccinelli defended the immigration restrictions instituted by the Trump administration, saying they are necessary to curtail fraud and abuse. He said the administration is simply enforcing laws passed by Congress — something Cuccinelli called an "almost novel" concept.

"For the first in a long time in the immigration space, we have a president who actually did what he said he was going to do. And that is so novel in this space, especially on the Republican side of the aisle," Cuccinelli said, adding later, "He simply followed through on everything he said he was going to do — whether it was the wall or moving aggressively within the law to rein in illegal immigration."

More than 300 miles of barriers have been built along the U.S.-Mexico border during Mr. Trump's tenure; most of them replacing dilapidated and low barricades, according to U.S. Customs and Border Protection (CBP) figures.

Theodore Wold, one of the leading White House officials working on immigration policy, echoed Cuccinelli's comments, saying Mr. Trump's immigration changes could help him secure reelection and would prove durable even if Biden wins.

"The overwhelming majority of the American people are committed to strengthening the American nation for the American people," Wold, a deputy assistant to the president for domestic policy, told CBS News. "The Left's rallying cry of 'no borders, no walls' is really just short-hand for more drug violence, more human trafficking, more intergenerational poverty and, ultimately, fewer jobs and fewer opportunities for American workers."

Trump campaign spokesperson Samantha Zager said the president will win in November because he has "effectively delivered" on his immigration promises.

Despite the numerous restrictions enacted during his presidency, Cuccinelli said Mr. Trump should still be seen as a supporter of immigration. "As tough as this president is on illegal immigration, and as sensitive as he is to protecting American workers, he's also fulsomely supportive of making sure our legal immigration system is firing on all cylinders," Cuccinelli said.

Several Trump administration policies have limited forms of legal immigration by making it harder for immigrants to obtain green cards, asylum and refugee status. The public charge rules, for one, give immigration and consular officials more power to deny permanent residency and visas to applicants the government determines rely — or could rely — on public benefits, like food stamps, housing vouchers and forms of Medicaid.

The refugee ceiling, which Mr. Obama set at 110,000 spots before leaving office, has been slashed dramatically by Mr. Trump, who set the current 18,000-person cap. With roughly 11,000 admissions, the U.S. is on track to take in the fewest number of refugees in modern history this fiscal year, which ends Wednesday.

Citing the economic impact of the coronavirus pandemic, Mr. Trump has also issued proclamations limiting immigrant visas and guest worker programs.

Biden has said he will halt the public charge rules and set a refugee cap of 125,000 spots during his first year in office — a promise experts said is a lofty objective. "It's not possible," a former senior DHS official who requested anonymity to speak freely told CBS News. "The volunteer agencies that handle the resettlement once someone gets here, their infrastructure has been devastated. They don't have the people to handle that kind of population."

Cuccinelli said his administration's definition of "public charge" conforms with the intent Congress had when it codified the standard in 1882, the same year it instituted an absolute ban on Chinese immigrants. The cuts to the refugee ceiling, Cuccinelli added, do not reflect the overall picture of the administration's work on humanitarian immigration.

"If you add refugees and asylees that come into our country, we are far and away the most generous country in the world year after year after year — including with the most recent refugee numerical cap," he said.

Biden has pledged to work with Congress on legislation that puts DACA recipients and the rest of the country's estimated 11 million unauthorized immigrants on a pathway to U.S. citizenship.

But he would need to muster enough support in a Congress that has failed to compromise on comprehensive immigration bills for more than a decade and that could continue to be divided come January 2021. Like Mr. Trump, Biden is likely to take executive action to implement immigration policy, including programs to shield "Dreamers" and other immigrants from deportation, experts said.

Former DHS officials cautioned that a Biden administration's immigration actions would likely face legal challenges and could also be hampered by federal courts — which have blocked many of Mr. Trump's policies. Cuccinelli said that could happen but stressed that he believes unfavorable judicial rulings tend to go in a "one-way streak."

"There are no conservative activist judges in any serious numbers, not like the left-wing judges we're seeing making war on this president," Cuccinelli said.

With the help of the GOP-led Senate, however, Mr. Trump has installed more than 200 conservative federal judges, cementing a center-right shift in the American judiciary and reshaping the balance of power of key courts, like the once reliably liberal 9th Circuit Court of Appeals. With the recent passing of Justice Ruth Bader Ginsburg, Mr. Trump also has an opportunity to appoint his third Supreme Court justice and transform the high court into a solidly conservative institution for a generation.

In the past year, Mr. Trump's judicial appointments have sided with him in rulings allowing the administration to implement, among other measures, the public charge rule, broad asylum restrictions for border-crossers and the termination of deportation protections for roughly 400,0000 immigrants who have lived in the U.S. for years.

Ries, the former DHS official, said a second Trump term could allow the administration to prioritize employment-based over family-based immigration and to end birthright citizenship, an effort targeting the U.S.-born children of undocumented immigrants that some legal experts say would violate the Constitution.

"Ending birthright citizenship is more of an executive action. It's an interpretation of the 14th Amendment. It's been wrongly interpreted to this point," Ries said. "Getting to a more merit-based immigration system would require Congress."

Four more years would also give the Trump administration a second opportunity to end the DACA program, as well as more time to implement proposed rules to further limit who qualifies for U.S. asylum, a regulation to detain migrant families indefinitely and restrictions on temporary work visas.

Valdés, the co-executive director of Make the Road New York, said he worries Mr. Trump's re-election could be portrayed as a vindication of his administration's hard-line immigration agenda.

"Trump has declared an outright war against our communities, and he will then feel emboldened to go further, to go after our communities," Valdés said. "That's a big concern for all of us, that he could feel that, in many ways, the policies that he's been pushing have the support of the general public."

Nicole Sganga contributed to this report.