By Anita Kumar
Over the past six months, the U.S. government has backed the expiration of certain visas, pushed for tougher requirements for investors seeking green cards, and supported the denial of permanent residency for thousands of immigrants living legally in the U.S.
If that sounds like the type of immigration portfolio former President Donald Trump would pursue, it’s because it is. But President Joe Biden is nevertheless defending it in court, despite a pledge to quickly reverse his predecessor’s hard-line immigration agenda.
Former administration officials and immigration lawyers say Biden’s hands may be tied in certain cases — that the government may not necessarily agree with the specific policy but that the Justice Department may have to defend Trump-era policy because of requirements in law and the time needed to review all the cases. But the Biden administration’s approach is, nevertheless, testing the patience of immigration activists and attorneys who say the president and his team have been far too passive in undoing Trump’s far-reaching and restrictive immigration policies in court.
They point to the fact that, in some cases, Biden’s team has argued policies created under Trump’s acting Homeland Security Secretary Chad Wolf were legal, even after a federal judge concluded Wolf did not lawfully serve in the position since he was never confirmed by the Senate. Their reasoning: opposing Wolf’s immigration policies could have impacted all sorts of changes at the sprawling department, which deals with everything from disaster relief to airline travel.
Those in the advocacy world say they are nervously waiting to see when — and if — federal agencies and departments, specifically the Department of Justice, will move away from defending Trump-era decisions and more closely match Biden’s campaign rhetoric on immigration.
A few weeks ago, several immigrant rights and pro-reform groups, including the Immigration Hub, the American Immigration Lawyers Association and the National Immigration Law Center, met with Deputy Attorney General Lisa Monaco and Associate Attorney General Vanita Gupta to convey such concerns, according to three people familiar with the meeting.
“The Department of Justice really was a center of gravity for some of the most…hideous anti- immigrant policies that came out of the Trump administration and really was in some ways ground zero for the anti-immigrant agenda of Donald Trump,” said Sergio Gonzales, who worked on the Biden transition and serves as executive director of the Immigration Hub. “And this is why it’s so critical that DOJ moves swiftly and aggressively to undo that agenda.”
Trump relentlessly focused on immigration during his four years in office, reshaping virtually every aspect of the U.S. system through executive action, policy guidance and regulatory change. He pushed through hundreds of policies, big and small, designed to reduce legal and illegal immigration to the United States — from lengthening the citizenship test and denying visas to citizens of several majority-Muslim nations to building 400 miles of 30-feet steel wall along the southern border and sharply limiting the granting of asylum claims.
Some changes Biden wants to make to Trump-era policy have been held up by regulatory processes, which can be lengthy, or the need for congressional action, which is not guaranteed. But the Department of Justice has begun the process of revisiting some Trump rules and issuing immigration policy memos, outlining everything from ways to reduce unused immigration courtrooms to banning the use of the word “alien” as a term for an undocumented immigrant.
“As the president has made clear, our immigration system is a critical part of our character as a nation of opportunity and welcome,” Justice Department spokesperson Dena Iverson said. “The Department of Justice is deeply committed to upholding those values by ensuring that the immigration system is fair, efficient, and impartial, consistent with our immigration laws.”
Immigrant advocates and attorneys say the department has made significant strides recently, though not necessarily in the courts.
Attorney General Merrick Garland has issued four immigration opinions in the past two months, including those that reversed Trump-era rulings that had narrowed asylum standards by denying protection to victims of domestic violence and gang threats in their home country. Garland also issued a ruling allowing immigration judges to close cases — an authority that was rescinded during the Trump presidency, hampering efforts to clear the massive backlog in immigration courts. And in recent days, the Justice Department hired Lucas Guttentag as senior counselor on immigration policy to help dismantle some of Trump’s policies, according to three people familiar with the hiring.
Still, advocates who are generally supportive of the administration say these actions don’t excuse them from defending other Trump policies in court. Thousands of lawsuits on every aspect of immigration policy are pending from the Trump years — from challenges to the government’s moves to block asylum for specific individuals to roughly 100 lawsuits filed by the government to gain access to or seize land near the southern border for Trump’s border wall.
“They are inundated with lawsuits, more so than ever in the past, because people couldn’t get administrative relief by going to the agency,” said Shev Dalal-Dheini, special counsel in the chief counsel’s office at U.S. Citizenship and Immigration Services during the Obama administration. “The doors were closed. You couldn’t go that route. The only avenue people had to challenge a denial or a bad policy was through litigation. And so they’re inundated with litigation.”
Karla Vargas, a senior attorney at the Texas Civil Rights Project, said her organization is defending land owners in seven cases related to the construction of Trump’s border wall. Biden halted construction, largely by canceling contracts and diverting funds. But she said the lawsuits around the seizure of border land remain.
“Whether ultimately there is going to be any change on halting the wall or not, I mean that doesn’t even seem to be part of the equation for some of the cases, because they’re being litigated full steam ahead,” Vargas said. “What we see happening is that there has not been a consensus from DOJ as to how to approach these.”
A DOJ spokesperson said the department continues to litigate border wall cases “to ensure life and safety conditions are adequately addressed at and around existing construction areas such as along compromised levees, and in order to respond to court orders.” But there are some cases where the Biden administration now supports Trump policy — even if the president previously criticized it.
For example, the Biden administration recently defended a Trump-era policy in court that prioritizes the highest wage earners for a high-skilled worker visa program, a move that was expected to hurt foreign students, among others. During the presidential race, Biden’s campaign talked of establishing a wage-based allocation process for temporary foreign workers. The Biden administration also continues to defend Title 42, a public health order issued by Trump, as a way to expel most migrants without allowing them to seek asylum during the pandemic. That includes single adults and many families, though he is allowing unaccompanied children to stay in the U.S. for humanitarian reasons.
“It was one thing for the Biden team to say they needed time when they first took office, but it’s now been seven months and that is no longer a valid excuse,” said Lee Gelernt, the lead lawyer in the American Civil Liberties Union’s case challenging the legality of using Title 42 to expel families. “Nowhere is that more true than the retention of the Trump administration’s illegal and inhumane Title 42 policy.”
In all, Biden’s record has been at times frustrating and confusing for many advocates and lawyers. The Justice Department has shown a willingness to push for the reversal of Trump policy when it chooses. But oftentimes, it has chosen to defend the status quo, either for expediency or for its own policy objectives.
The question they’re now asking is how much longer this will continue.
“My concern has always been — is another administration going to care enough to dedicate the political time and energy to undo all of these little things that [Trump’s agencies] were so committed to screwing up, throwing sand in the wheels, in these obscure places,” said Ben Johnson, executive director of the American Immigration Lawyers Association. “Most administrations don’t spend that much time and political capital in obscure places in the immigration system.”