Back when George W. Bush was still president, Karim Golding was a 21-year-old music promoter in Queens, trying to get some traction for the rap group he repped. Instead, he ended up ensnared in an investigation by a federal task force targeting hip hop groups. His first prosecution ended in a mistrial. He was convicted on gun and drug possession charges at his second trial, and served a mandatory minimum of 10 years. The day after he was let out of federal prison in 2016, Golding — who was born in Jamaica and brought to the U.S. as a 9-year-old — was arrested by ICE.
Golding was still in ICE detention more than four years later, when President Joe Biden — who campaigned on promises to erase the imprint Donald Trump left on the U.S. immigration system — was sworn into office. “It felt exactly the same,” Golding says of the months he spent in detention after Biden became president. “I did five years in immigration [detention] — from Obama to Trump to Biden. It felt pretty much the same across the board.”
This week, as Customs and Border Protection officers on horseback rounded up Haitian migrants before hundreds of them were deported en masse under a Trump administration rule Biden has fought to keep in place, it’s been hard to tell any difference between the president who made rabidly anti-immigrant policies the centerpiece of his administration and the president who vowed to reverse those policies.
Lee Gelernt is an attorney with the ACLU, which sued the Trump administration over Title 42, the rule that uses the pandemic as justification to deport asylum seekers without a hearing. Gelernt was hopeful that, when the new administration came in, the ACLU might be able to drop their lawsuit against the government. “We expected the Biden administration to get rid of the worst of the Trump-era asylum practices, the most extreme of which was the Title 42 policy,” Gelernt says. But after six months of negotiations with the Biden administration, it became clear they weren’t getting anywhere. Last week, when a federal court told the government it must suspend the Trump-era policy, Biden administration lawyers vowed to appeal the decision.
Fed-up, immigration rights groups rallied in 25 cities across the country on Thursday to call attention to what they characterize as the president’s failure to deliver the humane, just immigration policy he promised. “Biden has failed to act on all of his promises,” says Marcela Hernandez, organizing director for Detention Watch, one of the groups behind the rallies. In addition to Biden’s continued defense of Title 42, Hernandez cited the fact that detentions are up more than 60 percent since Biden assumed office, and there has been no significant reduction in ICE or CBP funding.
“We thought it was going to get better,” Hernandez says. “But it’s getting worse.”
The larger picture is more complicated, though. Take for instance the statistic about detentions. It’s true on its face: When Biden assumed office in January, the total number of immigrants in ICE detention was 14,195; as of mid-September, that figure was 23,014 — a 62 percent increase. But even that number is roughly half of what detentions were for much of the Trump administration. Throughout 2019, under Trump, the detained population hovered around 50,000. But detentions reached a nadir at the tail end of the administration: Arrests declined throughout the COVID pandemic, deportations skyrocketed — more people were deported in 2020 than the previous three years combined — and the border was sealed off.
Under Biden, the number of detainees arrested by ICE in the interior of the country has continued to steadily decline, while the number of migrants detained crossing the border has swelled.
The reason for that increase, says Muzaffar Chishti, a senior fellow at the non-partisan Migration Policy Institute, has less to do with Biden’s policies than what his victory symbolized to the rest of the world. “Simply by his election, people thought that America was now open — because it was such a contrast to Trump,” Chishti says. “This is where signals do matter from an administration, and their initial messaging on this was not particularly helpful: ‘Do come, but don’t come now.’”
The situation at the border — where the number of migrants attempting to cross into the U.S. has soared since Biden assumed office — has overshadowed what Chishti says are seismic, underreported shifts to U.S. immigration policy under Biden. “This is a sea change,” Chishti says.“There’s just no other way of describing it. And it is a change that has happened at a much faster rate than people expected.”
The Migration Policy Institute obsessively tracked President Trump’s immigration actions, which they found numbered close to 450 by the end of his four years in office. The Biden administration, though, is outstripping that pace: In his first eight months, President Biden has issued 180 immigration actions — more than double the clip of his predecessor — including 70 actions that explicitly unwound Trump-era ones. “Most of it has happened under the radar,” Chishti says, “[The media] hasn’t covered it, and the reason for that is because all the oxygen is taken by what’s happening at the border.”
Chishti ticks them off one-by-one, starting with the executive orders Biden signed during his first hours in office: directing DHS to preserve DACA, lifting the travel bans Trump imposed on Muslim and African countries, pausing deportations and revoking Trump-era directives to ICE about who can be arrested, protecting Liberian nationals who were singled out for deportation under Trump, tearing up Trump administration plans to exclude undocumented individuals from the census, and suspending construction on Trump’s border wall.
The same day, Biden sent a blueprint to Congress outlining a vision for what a modern American immigration system could look like. Among other things, the bill would offer legal status to 11 million people who have been living in the country without it. Chishti calls it “the most expansive immigration agenda any president had advanced in decades, frankly.”
In the intervening months, he ended family detention, lifted the cap on refugee admissions, reinstated Temporary Protected Status rescinded by the Trump administration (some 427,000 new immigrants are now eligible for TPS under the policy). He ended a rule used to deny visas to immigrants deemed “likely or liable to become a public charge” because of a disability or lack of resources, and reinstated guidelines about who is eligible for asylum, like victims of domestic violence, which Attorneys General Jeff Sessions and Bill Barr had narrowed. The list goes on.
Most importantly in the lives of ordinary people, Chishti says, the administration has changed ICE’s enforcement guidelines, and figured out a way to make those changes stick. Under Trump, the agency had a mandate to arrest and deport anyone without legal status, which meant millions of undocumented Americans lived in constant fear that their lives here could be ripped away at any moment. “If you left home and went to work, there was no guarantee that you would come back home that evening,” says Chishti.
In the last eight months, ICE has dramatically narrowed the scope of who it is targeting for arrest and deportation. “Our own research has shown in the past, you could issue federal government directives, but it would not get implemented at the local level, [but] they have managed to get these priorities brought in at the local level,” Chishti says. “It is really working in reality, which means both arrests and deportations and detentions have gone down in the interior of the country” — if not at the border.
“All of this, frankly, has gotten no attention,” Chishti says.
When thousands of Haitain migrants are huddled under the Del Rio bridge, and others are being herded in that direction by whip-toting border patrol agents, it’s hard to muster enthusiasm about new language working its way through the glacial federal rule-making process thousands of miles away. (On Thursday, in response to the widespread outrage, border patrol temporarily suspended the horse patrols.)
Meanwhile, inside ICE facilities, as Golding says, the shift between administrations is almost imperceptible — until suddenly it isn’t. “Once Biden became president, a lot of people thought, ‘Oh, we’re about to go home,’” Golding says. That didn’t happen right away.
But, Golding, who began studying as a paralegal when he was locked up 15 years ago and has become an informal legal advocate for some fellow detainees, concedes, eventually, a lot of people did go home. Golding, who contracted Covid while in detention and became an outspoken advocate to improve conditions inside the facilities, may have even been one of them, though he can’t say for sure. He says he wasn’t given any justification for his release in April. As abruptly as Golding was yanked into ICE custody, he was spit out: dropped off on a street corner one Friday, five years and three presidents later — an example of both the abject failures of the immigration system and also, maybe, a sign that, somewhere, the gears are grinding in the right direction.