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Biden’s border regime

Postcards from the honeymoon

Ashley Smith analyses Biden’s immigration proposals and executive orders, and finds small steps forwards lost to the rapid return to a reactionary status quo ante.

Over the last four years, migrant justice activists fought tooth and nail against the Trump administration’s xenophobic and racist war on migrants. Trump expanded the border wall, banned Muslims, blocked migrants and refugees at the border, separated families, and threw kids in cages.

The movement succeeded in stopping some of his worst attacks. It also forced the newly elected president, Joe Biden, to reverse many of his long-held anti-immigrant positions and issue a series of executive orders that overrule some of Trump’s policies.

But merely restoring the wretched status quo that prevailed under the Obama administration, which oversaw mass surveillance, detention, and the most deportations of any presidency in history, is no solution. As Malcolm X famously said, “If you stick a knife in my back nine inches and pull it out six inches, there’s no progress.”

Biden’s immigration bill, which purports to advance migrant rights, is actually just an updated version of Obama’s “Comprehensive Immigration Reform” (CIR) that the movement previously rejected. It combines onerous, conditional legalization for some, criminalization for others, increased border securitization, and a neoliberal plan to stop the flow of migrants from Central America.

Meanwhile, the Biden administration continues anti-migrant business as usual: it has already  deported over 26,000 migrants, used the pandemic as an alibi to maintain a closed border, and has started jailing thousands of children. If we want migrant justice, the movement must not give alibis for Biden.

Nor is it sufficient to lobby the Biden administration. We have to organize protests to demand a stop to all deportation, the immediate liberation of all those detained, and the unconditional legalization for all. Otherwise, Biden will only get pressure from the right, cut deals with them and big business, and betray his promise to deliver migrant justice.

Biden and the U.S. Border Regime

No one should be surprised that Biden is predisposed to retreat from his promises to migrants. Whatever small concessions he makes, he is absolutely committed to the maintenance of the border regime that has been built and dramatically expanded over the last four decades with a broad bipartisan consensus .

Of course, the current border regime—which dates from the Reagan era—has deeper roots.  Like all capitalist states, the U.S. uses its borders to depress the value of migrant workers’ labor and pit them against other workers to drive down wages and benefits and politically divide the labor movement.

The U.S. state has forged its particular border regime through settler colonialism, genocidal conquest, and the imperial seizure of Mexican land, and the xenophobic and racial policing of migration. Nativist bigotry is a persistent by-product, which serves to scapegoat migrants and prop up a system which exploits cheap, criminalized labor.

Contrary to media depictions of the U.S. being the victims of a so-called “migration crisis,” its state and capitalist economy are some of its main causes. U.S. imperial interventions, neoliberal free trade deals, and its disproportionate contribution to global climate change have driven people from their homelands all around the world.

Joe Biden backed, or was complicit in, all of this. Everyone knows his record of support for U.S. imperial adventures like the 2003 invasion of Iraq. Less well known are his endorsement of actions that have destabilized Central and South America, including the 2009 Honduran coup, Plan Colombia and the War on Drugs.

Biden was also an advocate of neoliberal trade deals like NAFTA. And, despite his claims to be an environmentalist, he opposes the Green New Deal and has always put U.S. economic interests over addressing climate change, ensuring that agreements like the Paris Climate Accords were voluntary and toothless.

Thus, Biden-backed policies have helped displace millions of people. And to police the ensuing migration, he has for decades also backed expansion of the border regime: from Reagan’s Immigration Reform and Control Act of 1986, which increased border securitization and criminalized undocumented labor, to the Clinton-era 1996 “reforms” which opened the floodgates to mass deportation and further criminalized migration, to the G.W. Bush administration’s creation of the Department of Homeland Security (DHS) and Immigration and Custom Enforcement (ICE), as part of the so-called War on Terror in 2003.

Most notoriously, Biden was Obama’s “Vice Deporter in Chief” when DHS expelled over 5 million people, the most of any administration in history. In reality, Biden has been an enemy of migrant justice for decades.

Activists Force Biden to Reverse Some of Trump’s Worst Policies 

Obama, Biden, and the Democratic Party thus set the stage for Trump’s radicalization of what has been a bipartisan war on migrants. Without the movement’s pressure on Biden, he would not have issued executive orders reversing some of Trump’s policies. Each one of those was a victory won from below, not granted from on high.

We should be clear that Biden has ulterior motives in granting these concessions. He wants to rehabilitate Washington’s image as a defender of human rights, which was profoundly compromised by Trump, so that he can weaponize rights discourse against Washington’s  imperial rivals like China and Russia. ‘Juan Crow,’ like Jim Crow before it, compromised U.S. imperialism’s project to win hegemony in the world system.

So it should come as no surprise that even the best of Biden’s orders are limited. For example, he reinstated Deferred Action on Childhood Arrivals (DACA) and restored Temporary Protected Status (TPS), measures that will protect the lives, livelihoods, and rights of many migrants.

DACA provides those who came to the U.S. without documents as children a renewable two-year deferral on deportation and an opportunity to receive work permits. TPS allows people who fled wars and natural disasters in their countries to live and work in the US.

In doing so, Biden has merely reinstated earlier victories won by the movement. But both have serious limitations. DACA includes mandatory background checks on criminal records and bars anyone who commits a “crime of moral turpitude”–a category so capacious it includes working under a false Social Security number.

DACA also fails to provide legal status to the parents of recipients, a fact that has and could lead to further family separations. DACA recipients are allowed (conditionally) to remain in the U.S., but their parents face the ever-present threat of detention and deportation.

TPS, as the name makes clear, is temporary, subject to renewal or cancellation at the whims of the administration in power. That puts beneficiaries in danger of being deported even after years of living in the U.S., getting jobs, and having a family. As implemented, TPS has also been criticized for favoring certain migrants—often lighter-skinned or from nations more strongly allied with the U.S.—over others.

Many of Biden’s other executive orders similarly restore the status quo ante. For example, he terminated Trump’s Muslim Ban, which prohibited people from dozens of predominantly Muslim countries from applying for refugee status and other forms of legal immigration to the U.S.

Blocked, Inadequate, and Reactionary Executive Orders

Other orders are compromised in various ways. Biden declared a 100-day moratorium on deportations, but it had as many holes as Swiss cheese. It excluded all those who tried to enter the U.S. after November 1st, 2020, or had waived their right to remain, or who had been individually selected for deportation by the ICE director.

Moreover, in a sign of systemic obstacles to justice for migrants, including the increasingly reactionary nature of the post-Trump judiciary, the Texas Attorney General won a legal challenge that indefinitely blocked the moratorium’s implementation. Even if Biden appeals—something unclear at this moment—and wins, the suspension of deportations would only be temporary.

Biden, in another positive executive order, stopped the construction of Trump’s border wall. But he has refused to order its destruction, thus leaving it in place as a racist and xenophobic barrier to the free movement of people. And he has shown no indication that he will tear down the rest of the wall built by previous administrations.

In another example, Biden has promised to increase refugee admission from the historic lows of 15,000 a year under Trump to 125,000. But he has already signaled that this is unlikely to be met because the programs and personnel to process them have been decimated by decades of underfunding, especially during the Trump Administration.

Moreover, even if Biden did admit 125,000 people, that would be a drop in the bucket of the 26.3 million refugees generated by various crises around the world, many caused and/or exacerbated by U.S. political, economic, and military policies.

Some of Biden’s orders, which he passed off as progressive, are in fact reactionary. For example, he issued a new guidance that nominally restricted ICE’s ability to arrest, detain, and deport migrants. The guidance enables ICE wide discretion to continue its reign of terror against migrants. As the ACLU’s Naureen Shah noted it uses “sweeping and overbroad presumptions of threat that have for decades resulted in biased profiling and harmful immigration consequences for Black and Brown people, including Muslims. The priorities presume that all recent border crossers are threats, in total contravention of President Biden’s commitment to ensuring that people seeking asylum are treated with dignity.”

Migrant Justice Delayed is Migrant Justice Denied

On other pressing issues for migrants, Biden issued orders establishing task forces or departmental reviews instead of taking immediate action. At best this amounts to justice delayed, and at worst justice denied.

Biden announced that instead of immediate reunification of families separated by Trump, he would appoint a task force to come up with a solution within 120 days. So far, it has only contacted the parents of 112 kids, but over 5,000 children are still waiting.

Even worse, he has started to jail thousands of kids coming across the border in unlicensed facilities, in possible violation of federal law under the Flores Settlement that limits child detention to no more than 20 days. He has even gone so far as to reopen one of Trump’s detention centers in Carrizo Springs, Texas. While he has boasted that conditions are better than they were under Trump, he is still in fact jailing kids, rather than uniting them with their relatives.

Similarly, he directed his staff to establish a task force to review Trump’s “Remain in Mexico” policy, which denied entry to 68,000 refugees applying for asylum, trapping as many as 25,000 in squalid, dangerous camps south of the U.S. border. They have finally begun to let in some of these migrants, but at a trickle.

Biden announced that his administration would review rather than immediately terminate Trump’s public charge order, which bans entry of migrants and refugees that may require social services. This order has not only prevented desperate people from entering the country, it has also made migrants within the country reluctant to apply for vital services, including citizenship and vaccination in the midst of a pandemic.

Excluding Migrants in Orders and Bills

Biden has also excluded immigrants from a whole swathe of other executive orders. He announced that the U.S. would terminate contracts with private prisons after they expire. But lest anyone mistake this for ending mass incarceration, such facilities jail just 8 percent of those imprisoned, while 92 percent are held in just as wretched public ones.

Disgracefully, unlike private prisons, Biden’s order excludes private detention facilities for immigrants and refugees. These incarcerate upwards of 80 percent of those arrested by ICE and Customs and Border Protection. Though state-owned ones are no better and certainly no alternative.

Biden also left migrants out of his proposed stimulus bill despite the fact that 5 out of the 11 million undocumented are essential workers in industries from agribusiness to meat packing. The administration thus upheld their status as criminalized workers denied the benefits and rights afforded others.

Comprehensive Immigration Reform Redux

Biden’s immigration bill is well within the framework first established by Reagan and repeated by subsequent administrations up to Obama’s Comprehensive Immigration Reform that all combine legalization, criminalization, and border securitization.

As it stands now, the bill includes all sorts of concessions to different constituencies including big capital, which wants to restore the stream of students into U.S. universities and skilled labor on H-1B visas into corporations especially in the high-tech industry.

Agribusiness would have preferred a guest worker program like the one offered by John McCain and Chuck Schumer several years ago, but are willing to go along with Biden’s plan to stabilize their workforces. As a result, The Chamber of Commerce and The Business Roundtable both support the bill.

At the same time, the bill  includes all sorts of positive reforms demanded by migrant justice activists. Thus, it includes provisions for parents of DACA recipients, agricultural workers, TPS recipients, and other groups of migrants. But even those positive changes are not immediate and compromised by their pairing with reactionary parts of the bill. Thus, whether these proposals make it into law is open to serious doubt.

There are three key problems with the bill. First, the so-called path to citizenship excludes anyone that tries to enter the country after January 1st, 2021 and is so onerous that many of the eleven million will not be able qualify. It requires a process of application which will take eight years for people to complete and like DACA has carve-outs that  have been manipulated and grotesquely abused by ICE.

Second, far from dismantling the border regime, it maintains and expands it. It promises to replace Trump’s physical wall with a virtual one built in coordination with high tech companies that will include border towers, new x-ray machines, biometric scanners, and other forms of surveillance and tracking.

Finally, Biden’s bill includes promises for $4 billion in development aid for Central American countries that have been the sources of refugee flows, something on the surface sounds like a positive step forward. But, based on his 2015 proposal called the “Alliance for Prosperity,” the aid will only deepen neoliberal reforms, entrench the oligarchic elite that have driven people from their homes, and increase border security that have actually been the cause of migration.

Dead on Arrival and Deal Cutting 

But, in reality, even this flawed bill is likely dead on arrival. The Republican Party, which is utterly dominated by Trumpite nativism, will fight to the death to block it, while xenophobic Democrats in so-called border states and so-called red states are unlikely to support the bill in its current form.

Biden has already signaled his willingness to compromise on some of its planks. There are elements within the Democratic Party who would be happy to see Biden do just that. Therefore, barring mass pressure from the migrant justice movement, the bill, if it ever comes up for a vote, will be far weaker than the current proposal.

Even worse, Biden has signaled his willingness to break the bill up into separate ones. In that case, Congress will likely pass parts of the bill that guarantee capital skilled professional labor, while right-wing Republicans and Democrats will block the passage of progressive legislation that would meet the demands of working-class migrants.

In this scenario, some inside-the-beltway NGOs will be tempted to cut deals to advance at least some progressive measures. The danger is that they will settle for just minor reforms and in turn tacitly consent to a strengthening of the border regime.

Biden’s Border Regime

During all these parliamentary maneuvers, Biden is enforcing the Washington consensus on migrancy. He has ordered the border closed to any and all migrants who attempt entry after November 1st, 2020.

Administration officials have repeatedly declared that the border remains closed. Biden even expressed worries that moving too quickly to reverse Trump’s policies “would trigger 2 million people on our border.” That’s why Matt Leas, spokesperson for the Department of Homeland Security, bluntly warned, “the border is not open, and people should not make the journey to reach it.”

Biden is using the pretext of the CDC’s order Title 42–designed to protect public health during the pandemic–to bar migrant entry into the country. Under this order, border agents have turned away 400,000 people since 2020 and 78,000 people in January alone.

This order reeks of hypocrisy. Remember, the U.S. is one of the key regional and international epicenters of the pandemic, not countries in the Global South. Moreover, if the Biden administration was concerned about the pandemic in Mexico and Central America, it would suspend intellectual property rights on vaccines,provide aid and whatever material assistance needed to ramp up production, and inoculate everyone around the world.

Instead, the U.S. and other advanced countries are hoarding vaccines, enabling the spread of the contagion and death in the Global South.

As a result, Biden is running the border regime and overseeing ongoing deportation on a mass scale. If the current pace of deportations keeps up, the U.S. will kick out as many as 300,000 people by the end of the year, on par with the record numbers under Obama.

On top that, Biden has continued to support the internationalization of the U.S. border into Central America. His administration has encouraged Mexico and Guatemala to continue their own border enforcement to block migrants and break up caravans like Guatemalan security did in January when it used brute force against one that numbered over 4,000 people.

In this context, ICE continues to violate people’s human rights with impunity. For example, while Biden’s moratorium was suspended while under court review, it deported Black migrants to Haiti, Jamaica, Cameroon, Angola among several African countries during Black History Month in February.

ICE’s deportations of Haitians are particularly obscene. It has sent over 900 people, including 20 babies, into a country wracked by political and economic crisis, largely caused by the U.S., Canada, France, the UN, and Jovenel Moïse’s corrupt regime they continue to support. In one case, ICE deported a man of Haitian descent, Paul Pierrilus, who was not even born in Haiti.

This outrage led Black leaders, especially Haitians, to denounce the Biden administration and call for him to stop the deportations immediately. UndocuBlack Network’s Patrice Lawrence declared:

“Black people are shouting from the rooftops that deportations are happening and that Biden can stop them. Where is the moral outrage? What happened to the concern for the kids in cages? … If Trump was reelected and he spent his first 100 days in office and the first weeks of Black History Month deporting Black people, hundreds would be in the streets, COVID or not.”

Despite these criticisms, Biden and his administration refused to even lift a finger to stop these deportations or even fight for their own moratorium.

Fight For Migrant Justice Now!

Now is not the time to wait for Biden to deliver or restrict our organizing to lobbying. While he has repealed the worst of Trump’s policies, he is betraying his promises of progressive systemic change.

His “woke capitalist” amendment of Washington’s official terminology to “inclusive” ones like changing “illegal alien” to “noncitizen” cannot cover up the fact that he is, at best, running a kinder, gentler border regime. The migrant justice movement must end whatever honeymoon it had given or planned to give Biden.

It is time to return to the militant organizing and protesting demonstrated by last summer’s Black Lives Matter movement . Only through such protests and strikes like those by farmworkers in the Northwest can we win our immediate demands to stop deportations, free the detained, open the borders, and legalize all. This will put us on the road toward abolishing ICE and tearing down the brutal border regime that divides the workers’ movement.

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Ashley Smith View All

Ashley Smith is a member of the Tempest Collective in Burlington, Vermont. He has written in numerous publications including Spectre, Truthout, Jacobin, New Politics, and many other online and print publications.