Victor Fernandez and Clare Lemlich look at Biden’s new immigration policy overhaul, arguing that it has all the markings of previous comprehensive immigration reforms, and that the movement must now prepare to fight Biden’s enforcement measures as hard as it did Trump’s concentration camps for children.
The opening of a new detention center for children in Texas last month was a huge disappointment that reverberated through the immigrant rights movement. President Biden—who ran a campaign set to reverse Trump’s attacks on immigrants—is now running that very deportation and detention machine himself.
There are now more unaccompanied children than ever at the border. This is because Trump used Title 42, a provision that allows the expulsion of immigrants who cross the border in the case of a public health emergency. This along with Trump’s other anti-immigrant policies have manufactured the current surge at the border. Biden reversed the application of Title 42 to minors, essentially transferring all these children to cages while expelling their parents. “Trump got his wall, it’s called Title 42,” said Rubén Garcia, founder of Annunciation House, one of the largest shelter networks in the United States, based in El Paso, Texas.
It is also estimated that more than 26,000 people were deported during just his first month in office. Biden has made some changes to Trump’s excesses, such as repealing the Muslim Ban, ending the “Remain in Mexico” policy for asylum seekers by executive order, and allowing children into the country at all. But Biden has not made any significant changes to the heavy enforcement of immigration laws, which shouldn’t come as a surprise. Biden himself said that “nothing would fundamentally change” when he took office—although some forces in the movement argue that we should still wait for that change.
US Citizenship Act
Biden has introduced a sweeping policy overhaul and it is by far the best immigration reform bill in decades. The US Citizenship Act streamlines processes for family reunification. It provides an eight-year timetable for the regularization of the undocumented and clear mechanisms for providing them with green cards and eventually citizenship.
Notably, Biden’s term is four years, which raises questions about how the policies would play out if he or another Democrat is not re-elected for a second term and the pathway gets repealed by his successor. Not only is this a long wait for people who have already waited far too long for their rights, the timeline is dangerous if immigrant rights organizations aren’t willing to critique the program now and instead end up calling uncritically for Biden’s re-election in order to finish it out, despite all its inherent limitations. Crucially, the bill also includes enforcement measures at the border.
But even its supporters see the act as aspirational and moderate Democrats see it as a pipe dream. Immigrant rights nonprofits and lawmakers acknowledge that in order to pass any components through a slim Democratic majority in the Senate, the bill is likely to be broken up into pieces.
The Democrats’ willingness to seek bipartisanship with Republicans on this issue—and their unwillingness to effectively fight for policy that actually helps immigrants even when they propose it—means that this legislation could be watered down and broken up into smaller bills to the point that it helps no one. Worse yet, the act’s bifurcation could be used as a trojan horse that increases enforcement measures yet provides little or no relief to immigrants. This was how the comprehensive immigration reform bills of the Obama era played out.
Obama sought to make his deportations less obvious than his Republican predecessor George W. Bush through more decentralized and targeted raids under the cover of “going after criminals.” This proved effective in deporting more than 2 million people. Joe Biden has similarly curtailed some of the Trump administration’s excesses, including his explicit public racism, and replaced it with a quieter, more subtle deportation machine.
Even with the new child detention facility in Texas, the Biden administration is trying to rationalize it as a temporary shelter for kids, not a jail. But the center is still a confined facility, in remote area, it is unlicensed, and it is holding children for longer than is stipulated in the 1997 Flores Settlement, the landmark legal case that set standards for immigration custody of minors. And there is simply no reason to house them there, other than to punish people and as a cruel warning to others who try to come here.
In other words, Biden has taken his immigration policy straight out of the Obama playbook. He is using the distant promise of a pathway to citizenship as a way to gain support from immigrant rights supporters, all while quietly continuing the deportations and maintaining the detention centers. This triangulation serves to both continue the punitive immigration controls which big business needs in order to effectively hyper-exploit the immigrant labor force, while at the same time keeping pro-immigrant advocates at bay.
Lessons from the fight for DACA
This Democratic triangulation works up to a point, and Obama learned its limits way in 2012 when Dreamers occupied his campaign offices in Chicago. This was a culmination of years of organizing led especially by students, who rallied around the slogan “undocumented and unafraid. With actions like sit-ins and—more controversially—public border crossings into the US, the Dreamers not only brought their struggle into public consciousness, but also exposed the conditions at detention centers when they were sent to them. This was the movement that won DACA from Obama.
That movement built so much public support for undocumented people that even centrist Democrats, to this day, have to pay the Dreamers lipservice. A 2020 poll found that 74% of Americans support legal status for DACA recipients, even after Trump’s vicious campaign to repeal it. Biden’s policy reflects this, with its pathway to citizenship for DACA recipients and undocumented people who entered the US before 2021, as well as its residency extensions to farmworkers and Temporary Protected Status recipients.
The lesson of the Dreamers is that we must organize and fight for the policies we want to see, not simply accept the reversal of some of Trump’s worst border control measures. The movement must not uncritically accept Biden’s comprehensive immigration reform proposal, which includes authorizing DHS to appropriate funds to deploy a “smart technology” strategy along the southern border. A Biden-built high tech border wall is little better than Trump’s concrete one.
Nor can we accept rights for some at the expense of increased enforcement for others. Biden’s bill reinforces the toxic narrative that there are some “good” immigrants and some “bad” ones. It centers on the idea that “good” families will be reunited, while “bad” criminals will be deported, which means it includes greater criminalization of some immigrants. Centrist Democrats have pushed to widen the criminal offenses that can be used against immigrants. The bill also includes investment in anti-gang task forces in Central America. These gangs are extremely dangerous, like the Salvadoran MS-13—which US enforcement and detention policies themselves in fact created among migrant communities in Los Angeles, and whose violence originated in the US-backed wars in Central America during the 1980s.
The Dreamers’ fight under Obama also showed they had the power to change the way society views immigrants through their own struggles. While Republicans and Democrats limit their discussions of immigration to tinkering with the punitive aspects of this or that policy, an active immigrants rights movement—led by immigrants themselves—can shift the national discussion and tip the balance of forces. This is exactly what happened in 2006 when millions of immigrants held a general strike on May Day, dubbed “the day without an immigrant.” Seemingly overnight the discussions in DC shifted from draconian enforcement to talk of legalization.
In the Biden era immigration enforcement will continue unless we fight to stop it. His children “overflow facilities” and thousands of deportations affirm this. The movement needs to mobilize and channel the movement that started to cohere against Trump’s cages for children, turning it now against the bipartisan enforcement measures woven into Biden’s bill.
We must be unequivocal that we will not accept or give left cover to the sections of the legislation that do pass through Congress unless they actually benefit immigrants and truly wind back decades of violent border enforcement. If there’s one thing that the Trump administration proved, it’s that there are millions of people who rejected his racism and were willing to fight to free the kids. Now we need to free them all, close the camps, and legalize everyone.
Victor Fernandez and Clare Lemlich are both members of Marx21US and organize with the Alliance to Defend Immigrants in Los Angeles.