Grading the Top Candidates’ Immigration Plans
Biden would rely more on his own discretion to protect immigrants. Warren, Sanders and Buttigieg want more lasting, structural changes. (UPDATED WITH REVISED GRADES.)
LAS VEGAS — They all say they want to welcome immigrants to the United States. They all have detailed immigration plans. And they’ve all staged events to talk about immigration and have their photos taken with immigrants. But do the plans published by Joe Biden, Pete Buttigieg, Bernie Sanders and Elizabeth Warren actually live up to their rhetoric?
Sort of. Some better than others.
I teach immigration law at the only law school in Nevada, which hosts the third nominating contest on the 2020 presidential campaign calendar. Quite unlike Iowa and New Hampshire, one in five residents in Nevada was born in another country. Per capita, Nevada is home to more undocumented immigrants than any other state.
All of the top four candidates in the Democratic primary have released detailed proposals on immigration. I’ve dissected these plans in detail, and I’ve graded them on how well they would actually build the welcoming America they promise.
Here’s how they did.
Elizabeth Warren A-
Bernie Sanders B+
Pete Buttigieg B+
Joe Biden B-
Here’s the big takeaways:
All of the leading Democrats would roll back the major anti-immigrant measures imposed by President Trump, including the Muslim Ban and restrictions on asylum. They would protect DACA, support a path to citizenship for undocumented immigrants and try to avoid deportations of immigrants without criminal records.
Biden would leave in place partnerships between local police and ICE that can be deployed to threaten undocumented immigrants. He would limit deportations, but only so long as he is president. The other candidates would separate local policing from immigration enforcement.
All of the candidates want to end the use of private detention in immigration enforcement, which would be a significant shift from present policy.
The grading system
I looked at these four candidates — Biden, Buttigieg, Sanders and Warren — because they were the only ones polling in double digits nationally, or who have led in early state polls as recently as December.
I graded their proposals separately on five aspects of immigration reform:
- Treatment of undocumented immigrants inside the United States
- Enforcement policies at the border
- Asylum and refugee policy
- Visa reform
- Institutional reform
I would have given an “F” to any plan that would continue Trump policies which are exclusionary, cruel, and/or racist. I didn’t give any of the leading Democrats an F in anything.
I gave a “C” to a policy that would return to the way things were at the end of the Obama presidency, but go no further.
To earn an A, a candidate would have to propose structural changes that would make the United States durably more welcoming. A grade of “B” represents more incremental improvements.
Policies Toward Undocumented Immigrants Inside the United States
Buttigieg, Sanders and Warren: A
The big picture
All four would restore DACA and push for the DREAM Act. They also would like Congress to pass sweeping immigration reform giving undocumented immigrants a path to citizenship. All of the leading Democrats want to vastly reduce the number of undocumented immigrants who are targetted by Immigration and Customs Enforcement (ICE). But they differ on how lasting this protection would be, especially if they fail to pass legislation that would give undocumented immigrants legal status.
Buttigieg, Sanders and Warren would take significant steps to dismantle the systems by which ICE targets, detains and deports immigrants living and working in the United States. Biden would leave more of this deportation system in place, but he would use discretion to restrain it while he is in office.
Sanders grabbed headlines by proposing a full moratorium on deportations until an audit of ICE policies is conducted. Biden, Buttigieg and Warren would instead re-establish enforcement priorities, under which ICE focuses only on undocumented immigrants with serious criminal records. The Sanders moratorium is simpler and more eye-catching. But it also might face legal challenges that I won’t get into here. Enforcement priorities are clearly legal. They were in place at the end of the Obama Administration, and for a short period of time they offered protection to 87 percent of undocumented immigrants in the United States.
The longer-lasting difference between the candidates is the degree to which they would attack the institutional systems that threaten so many families with the detention and eventual deportation of a loved one. For example: Biden is silent about the close connection that has been developed between local policing and ICE — the 287g program, Secure Communities, and other similar systems. These linkages between local police and ICE basically mean that immigrant communities have good reason to fear local police. In Nevada, people arrested for nothing more than an unpaid traffic ticket have been turned over by local police to ICE.
Warren, Sanders and Buttigieg would end the 287g program and argue that local policing and immigration enforcement should be kept more separate. While the impact of these local deportation pipelines may in theory be mitigated through Biden’s use of enforcement priorities, the existence of these partnerships maintains an efficient deportation machine that ICE can use as soon as discretionary limits are removed. That’s exactly what happened when President Obama handed over the deportation machinery to President Trump.
Buttigieg would revise the list of removable offenses, so that controlled substance violations would be treated more leniently. He would also allow re-opening and termination of old removal orders that had never been enforced.
Sanders and Warren would repeal the rule that allows immigration stops without probably cause within 100 miles of the border (which includes many of our largest cities and the entire state of Michigan).
All of the candidates would end ICE’s extensive reliance on for-profit prisons that is used to hold undocumented immigrants arrested by ICE in American cities. That would be a very positive and significant step beyond where things stood at the end of Obama’s presidency.
[The first version of this article stated that Biden’s position on private immigration detention was amibiguous, as stated in his immigration plan. His campaign subsequently alerted me to the former vice president’s criminal justice policy, which states “the federal government should not use private facilities for any detention, including detention of undocumented immigrants.”]
Temporary Protected Status
Buttigieg, Sanders and Warren promise to restore temporary protected status (TPS) for hundreds of thousands of people whose legal residence has been put in jeopardy.
Biden’s plan promises only an “immediate review” of groups who have had their TPS status threatened by President Trump. This gives some reason for doubt, although the text of Biden’s plan indicates he disagrees with Trump’s decision to end TPS protection, and that he wants longterm TPS holders to be able to become citizens. The Biden campaign should clarify this issue, which affects hundreds of thousands of people nationwide (and thousands in Nevada).
At the Border
Sanders and Warren: A
The big picture
Much as with interior enforcement, the most important difference among the candidates on border policy is whether they are proposing to make structural reforms that might last beyond their own presidencies, or if they are offering mainly discretionary changes that might last only as long as they are in office. Biden would roll back Trump’s cruelty at the border, but would not eliminate the legal tools that made it possible. Warren and Sanders would take some of the main tools away. Buttigieg wouldn't go quite as far, but he proposes more than Biden.
Sanders and Warren would end expedited removal, which leads to deportation without people being able to go before a judge. Biden and Buttigieg do not propose ending expedited removal.
Criminal prosecution for border crossing
Sanders and Warren would decriminalize illegal border crossing, though it would remain a civil violation and would still lead in most cases to deportation. Buttigieg would also decriminalize simple border crossing, but has been more cautious in how he has expressed this view, noting that he would keep criminal penalties for more extreme cases.
Biden would not decriminalize border crossing, though he would end (during his term in office) the aggressive prosecution of asylum-seekers that led to mass family separation in 2018.
All four candidates would reverse President Trump’s Muslim Ban.
Sanders and Warren: B
Biden and Buttigieg: B-
The big picture
No one gets an A on asylum policy.The candidates only propose incremental changes. They do all promise to improve treatment of children and families seeking asylum at the border. Most importantly, they all promise to reduce the use of detention of asylum seekers (a feature of Obama’s response to Central American refugees as well as Trump’s). All would roll back the barriers to the asylum system enacted by the Trump Administration, which prevent tens of thousands of desperate people from safely applying for asylum inside the United States (Remain in Mexico, third country agreements).
A person can be in danger of rape or murder, but if she would not be raped or murdered for the right reason, our law denies asylum and would send the person back. Through multiple administrations, the Department of Justice has used a restrictive approach to interpreting what constitutes a valid ground for asylum. A new administration (specifically, a new Attorney General) could liberalize the interpretation of these restrictions to protect more people in danger.
Biden would reverse Trump changes that restrict asylum for people fleeing domestic violence and anti-LGBTQ persecution (essentially, going back to the pre-Trump status quo). But Biden doesn’t say anything about gang violence, which is the main cause of much of the recent forced migration from Central America. Buttigieg, Warren and Sanders all say they want to “restore” laws that protect people fleeing gang violence, but this implies they just want to return to the situation under the Obama, when the federal goverment vigorously fought many asylum claims by child victims of gang violence.
Biden, Buttigieg, Sanders and Warren would all re-invigorate refugee resettlement, a program Trump has nearly ended. Under this program, refugees are resettled to the United States after first fleeing to another country (for instance, Syrian refugees fleeing to Turkey). The President sets a quota for the program. President Obama briefly raised the refugee resettlement to 110,000 at the end of his term. Trump lowered it to 18,000, nearly killing the program. Warren wants to increase refugee resettlement to 175,000 per year; Biden and Buttigieg want 125,000. Sanders wants to accept 50,000 climate refugees, on top of 110,000 refugees Obama would have taken.
Biden, Buttigieg, and Warren: A
The big picture
Many immigrants cannot get in line to immigrate legally, because there is no line for them. Even when a visa is theoretically available, quotas produce absurd wait times — more than 20 years for some people. The candidates all want to do something about this, but they vary in the specificity of their proposals. They all want to make everything about processing immigration and naturalization applications more efficient.
Making legal immigration easier
Warren stands out for calling explicitly to “expand legal immigration.” Buttigieg is similar, correctly diagnosing that the gap between visa supply and demand fuels the growth of the undocumented population.
Biden offers some interesting and specific innovations to cut down on visa delays. He proposes a system of temporary visas while people wait for permanent visas. That would be substantial improvement on the current system. Biden also has an interesting proposal to let local communities sponsor certain types of employment visas for immigrants who would have to live in those locations. I have some questions and concerns about this idea, and I’d love to know more about what the Biden campaign has in mind. For present purposes, I give Biden credit for innovation.
In addition to increasing family and employment-based immigration Buttigieg has a number of ideas for improving access to legal immigration for a number of specific groups. He proposes, for example, using deferred action as an interim protection for abused and neglected children while they wait for visas to be available.
Sanders’ approach to the visa system is less specific. Like other candidates, he wants employment visas to be portable (giving employers less leverage over immigrant workers). He also says he wants to cut down on wait times, but he doesn’t say exactly how. He wants to reinitiate technical mechanisms used under Obama to let some undocumented immigrants obtain legal status (parole in place, hardship waivers). Sanders is noticeably more vague on visa reform than on other immigration subjects.
Bars to legal immigration
Buttigieg, Warren and Sanders would eliminate a provision which makes it impossible for many undocumented immigrants to legalize their status (the 3/10 year bar). Buttigieg, Warren and Biden would repeal the per country quota, which makes Mexicans, Filipinos and a few others wait much longer for visas than other nationalities (Sanders doesn’t mention it).
Biden’s plan does not address the bars on re-entry that block legal immigration for people with long residency and family connections in the U.S.
All of the candidates would repeal Trump’s Public Charge rule, which essentially excludes low income and working class people from legal immigration.
All would expand the visa quota for crime victims (the U visa).
Buttigieg and Warren: A-
The big picture
All of these candidates want a more humane, orderly, welcoming immigration system. But they differ on whether they would trust the existing agency structure to implement it.
The abject cruelty inflicted on immigrants in recent years, including rampant deaths in custody and revelations of secret Facebook groups fostering racism and misogyny, has focused attention on the institutional culture of ICE an Border Patrol. Meanwhile, President Trump’s attorneys general have intervened aggressively in the immigration courts, spotlighting their lack of independence.
Reforming ICE and CBP
Sanders has an eye-catching proposal to break up ICE and CBP, and to move most of their functions to the Department of Justice.This is not a plan to “Abolish ICE,” as some have erroneously reported. What we now call ICE was part of DOJ until 2002 (in the form of the old INS). Moving an agency and changing its name is not the same as abolishing it. But Sanders clearly takes the need for institutional reform seriously and his proposal is more concrete and more far reaching than the other candidates. By contrast, Warren promises to “reshape” CBP and ICE, but doesn’t say how. Biden would retrain ICE and and CBP officers and establish independent oversight, but proposes no other structural changes to the two most important immigration enforcement agencies.
Reforming the Immigration Courts
Buttigieg, Sanders and Warren would improve the Immigration Courts. America’s Immigration Courts are horribly backlogged, and the judges are mere employees of the nation’s chief prosecutor, the Attorney General. They are not really courts, because they are not part of the judiciary. Warren and Sanders would change that, moving the Immigration Courts to the judicial branch of government. They would also offer legal defense at government expense, like criminal defendants receive. Warren calls this an “immigration public defender corps.” This would be a big deal. Sanders calls for giving Immigration Judges more discretion. That would also be a big deal.
For the Immigration Courts, Biden would increase court staffing and improvements in court management, but otherwise proposes no steps to make the Immigration Courts more independent. Other than a very vague reference to “legal non-profits,” he does not propose expanding legal defense for people facing deportation, even children. The Obama Administration fought efforts to give children the right to legal representation, but did provide limited funding for lawyers for unaccompanied kids. Biden does not even propose restarting that effort.
Why didn’t Sanders do as well as Warren?
Because completeness counts more than headline-grabbing proposals. Sanders proposes a moratorium on deportations, for example, but does not offer specifics on how he would make legal immigration more functional. Warren does. (I gave the Sanders campaign the opportunity to add more details on this, and they did not do so.)
Isn’t this grading scale based on subjective policy preferences?
Of course. I graded these four plans based on how well they would (to quote from Joe Biden’s plan) “modernize America’s immigration system” for the purpose of welcoming immigrants in our communities. All four of these candidates say that’s what they want. They agree on the goal. That’s the foundation of my grading standard.
Together, these plans are impressive
Even the weakest of these plans would be an improvement compared to policies at the end of the Obama Administration, in addition to ending the abject cruelty that we’ve seen under President Trump. Every one of these plans offers at least one valuable and unique proposal. If any of these four is elected President, I would recommend they read the other plans and incorporate ideas from them.
I reached out to all four campaigns to clarify parts of the candidates’ proposals and was able to talk to or correspond with all of them about the candidates’ plans. I have also had the chance to directly discuss aspects of immigration policy, at least briefly, with Sen. Elizabeth Warren and Mayor Pete Buttigieg.