Read More: Trump vs. Biden on Immigration Policy
[Updated October 23, 2020]
- Both Donald Trump and Joe Biden have come out in support of an amnesty for some number of illegal aliens in the United States — although neither has admitted as much.
- As part of his January 2018 "Framework on Immigration Reform & Border Security", the president proposed an amnesty for 1.8 million aliens who are DACA recipients and aliens who would otherwise be DACA eligible except for the temporal constraints on that administrative action. In exchange, the president sought several key reforms in our legal immigration system. Congress has failed to act on Trump's proposals.
- Biden, on the other hand, has promised to work with Congress on an amnesty leading to citizenship for nearly 11 million aliens unlawfully present in the United States on his campaign website, with few strings attached.
- Pursuant to his plan, those aliens would have to register, pay any taxes due, and pass a background check. Given the fact that the former vice president has promised a 100-day moratorium on removals at the start of his term, and to deport only aliens who have committed felonies in the United States thereafter, it is doubtful that the unspecified background check would bar many aliens who are currently removable on criminal grounds.
- A companion campaign document — the "Biden-Sanders Unity Taskforce Recommendations" — is less clear with respect to that amnesty, suggesting that the Biden-Harris administration would at least initially grant an administrative amnesty to aliens unlawfully present in the United States before seeking legislation to formally legalize those nearly 11 million aliens.
- Given the former vice president's statements, and his vow to curb immigration enforcement if elected, it is possible that Biden could institute a de facto amnesty of the vast majority of aliens illegally present in the United States, even before implementing any administrative or legislative one.
- Left unclear is whether the Biden administration would limit any amnesty to "nearly 11 million" illegal aliens, or whether it would ultimately apply to a larger number, assuming that there were more such aliens in the United States. In Thursday’s debate, he raised the number to "over 11 million", without setting a ceiling. Nor has Biden proposed a cut-off date for any such amnesty, meaning that a wave of aliens could seek to enter illegally up to (and perhaps after) the implementation of that amnesty, to take advantage of those benefits.
As I have been examining the respective immigration positions of the two candidates for president — the incumbent Donald Trump and the challenger Joe Biden — one major point that I have thus far not addressed directly is amnesty. Both Trump and Biden have proposed it (not directly, of course, as it is a program that dare not speak its name), the former on a "limited" basis of 1.8 million aliens, while the latter has promised it for upwards of 11 million (and likely many more).
"Experts" will give you different definitions of amnesty, but here is the one that counts: The granting of immigration benefits (residency, work authorization, and possibly access to government benefits) to any alien removable under the Immigration and Nationality Act (INA) who is not otherwise eligible for relief from removal.
Those experts and their respective candidates will elide the subject, and contend that any program that grants those benefits is not amnesty if it comes with strings attached: Paying back taxes, paying a "penalty" (or what you would refer to as a "fee"), background checks, and coming forward to apply.
Respectfully, this is all eye wash.
Every individual in the United States is required to pay any number of taxes, including sales tax, state and federal income taxes, property tax, Social Security and Medicare taxes (included in the "payroll tax"), etc. These are not optional.
Justice Oliver Wendell Holmes in 1927 explained that "[t]axes are what we pay for civilized society." He was echoing former President James Madison, who stated: "The power of taxing people and their property is essential to the very existence of government." So paying taxes is the baseline for everyone — citizen, national, and alien — and not a penalty, even if you have failed to do it.
Of course, millions of people file federal tax returns, but actually pay no tax (or receive back more than they have paid) — by one estimate more than 43 percent of all filers. This is a "feature, not a bug" of our tax system. "By design, the federal income tax always has excluded a significant fraction of households through a combination of personal exemptions, the standard deduction, zero bracket amounts, and more recently, tax credits."
In 2016, Market Watch explained: "On average, those in the bottom 40% of the income spectrum end up getting money from the government." Most aliens who have entered the United States illegally, and those nonimmigrants who entered legally and overstayed, are likely to fall within that 40 percent. As my colleague Steven Camarota explained in 2017:
Researchers agree that illegal immigrants overwhelmingly have modest levels of education — most have not completed high school or have only a high school education. There is also agreement that immigrants with this level of education are a significant net fiscal drain, creating more in costs for government than they pay in taxes.
As for a cash "penalty" for amnesty, those aliens here illegally have (in almost every instance) evaded the many fees that U.S. Citizenship and Immigration Services (USCIS) charges to provide immigration benefits (including status) to aliens. Applying for a green card will run you $1,225, for example. Not to mention skipping the visa fees charged by the Department of State to enter as a nonimmigrant if you entered illegally to begin with. Requiring payment in exchange for amnesty does little more than place aliens in a position that would have occupied had they not broken the law.
A requirement that an amnesty applicant have a clean criminal record should require no explanation, except of course it does. If you run afoul of the law (federal, state, or municipal) you are sanctioned with a fine and/or jail time. That is because you have an obligation to obey the law, and the state has an opportunity to punish you if you don't.
I say "except of course it does" because the number of crimes that will get you removed from the United States (listed in sections 212 and 237 of the INA) is actually quite limited. You would be surprised what aliens can get away with criminally and remain in good standing from an immigration standpoint.
Of course, the most recent administrative amnesty (Deferred Action for Childhood Arrivals, or "DACA"), isn't even as strict as the INA when it comes to criminal bars. Specifically, an alien can be granted DACA so long as he or she has "not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors."
"Significant misdemeanors" are limited to "an offense of domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or, driving under the influence", or one for which the alien was sentenced to 90 days or more (if the sentence is suspended, even the latter doesn't count).
But under section 212 of the INA, for example, simple possession (usually a misdemeanor) will get you removed, although you can still get DACA, no problem. In fact, USCIS reported in 2018 that: "Of those individuals whose DACA requests were approved and had one or more arrests or apprehensions, 53,792 were arrested or apprehended prior to their most recent approval." Remember all of this the next time someone refers to DACA recipients as "law-abiding".
Speaking of DACA, in January 2018, the White House released its "Framework on Immigration Reform & Border Security". Don't look for the word "amnesty" therein, but the president promised to: "Provide legal status for DACA recipients and other DACA-eligible illegal immigrants, adjusting the time-frame to encompass a total population of approximately 1.8 million individuals." My colleague Jessica Vaughan, on the other hand, referred to that as what it is: "amnesty", with a "10-year path to citizenship."
Considering the fact that, as of August 2018, there were just short of 700,000 DACA recipients, this meant that the president was offering that amnesty to an additional 1.1 million aliens who had not yet received the ersatz DACA amnesty.
Of course, as Vaughan and I both explained at the time, there were many important immigration fixes in Trump's framework, so it would have required a significant amount of give-and-take from Congress for the administration to grant that amnesty. Congress failed to take the bait, however, despite the president's extremely generous offer.
More recently (last October), the president stated that Congress would act on a bipartisan basis to protect DACA recipients if the Supreme Court allowed the administration to end DACA. The Supreme Court refused to allow DHS to end DACA (yet), so there is no incentive for Congress to act, and it has failed to do so.
If re-elected, I have no doubt that the president would push through on his January 2018 framework, and grant the promised amnesty to those 1.8 million aliens in exchange for at least some of the immigration fixes therein. And, if the courts allow DHS to wind-down DACA, that would provide him with a platform to do so.
Editor's note: Read more on the Implications of Joe Biden's Amnesties.
As I have previously explained, the former vice-president's immigration proposals are threaded through two separate documents: "The Biden Plan for Securing our Values as a Nation of Immigrants" (which features prominently on the candidate's website); and the "Biden-Sanders Unity Task Force Recommendations". In addition, Biden mentioned his amnesty plans in Thursday’s presidential debate.
Biden pulls no punches when it comes to his amnesty plans (although again, you will not find that forbidden word in either document and he did not use it in the debate.
First, he promises on his website to work with Congress to "[c]reate a roadmap to citizenship for" almost 11 million "unauthorized immigrants" in the United States. Of course, they would have to register for that amnesty, be "up-to-date on their taxes", and pass "a background check" — the parameters of which he fails to define, but, as I will explain below, would likely be significantly less stringent than the grounds of removability in sections 212 and 237 of the INA.
The "Unity" document is similar, but a bit broader in its scope and more ambiguous in its operation. It states that Democrats will "provide a roadmap to citizenship for the millions of undocumented workers", fast-tracking that process "for those workers who have been essential to the pandemic response and recovery efforts, including healthcare workers, farmworkers, and others."
Notably absent from that statement is "working with Congress", or any legislative proposal to provide that amnesty. It is a notable omission in this context because that document does state that Democrats will: "Work with Congress to eliminate immigration barriers, such as the 3- and 10-year bars, and remove the 10-year waiting period for waivers to the permanent bars that keep U.S. citizens separated from their families."
Like Supreme Court Justice nominee Amy Coney Barrett, I am a "textualist" and believe that the differences in that carefully crafted document between the amnesty promise and the "immigration barriers" proposal is deliberate. Anticipate an administrative amnesty first, followed (possibly) by a legislative one second.
This is not the first time I have made this point. On August 12, in a post captioned "With Choice of Kamala Harris, Biden's Immigration Plans Become Clearer", I explained that I expect the Biden-Harris administration will use a procedure called "Parole in Place" (PIP) to grant immigration benefits (including work authorization) to those "nearly 11 million" unauthorized immigrants fairly quickly through executive action.
What would that administrative amnesty look like? Well, as for the criminal grounds of removal, the former vice president has already vowed that he will not remove any aliens in his first 100 days in office, and after that, only those who have committed (unspecified) "felonies" (not including DUI, which Biden does not believe is a felony, presumably even when it is) in the United States.
Not to put too fine a point on it, but taken at his word, that means Biden would not deport an alien who committed an offense abroad — no matter how heinous. Child molesters, murderers, and narco-traffickers will get a free pass, so long as their offenses occurred abroad.
And, again, there are plenty of offenses that are not classified as "felonies" (regardless of how you define it) that will get you removed from the United States under the INA. But not if Biden gets his way.
Not that Biden would even need to bother drafting a PIP proposal to protect those aliens, as the former vice president has asserted that he will fire any ICE officer who deports an alien who has not committed a felony in this country. In his words: "You change the culture by saying you are going to get fired. You are fired if, in fact, you do that. You only arrest for the purpose of dealing with a felony that's committed."
Again, respectfully, it is not only the culture at ICE that would be "changed" under that sweeping proposal.
Of course, all of this raises two additional questions.
First, what happens if the population of "unauthorized immigrants" is larger than "nearly 11 million"? I note that in addressing the issue in Thursday’s debate, he vowed to send legislation to Congress in his first 100 days in office creating “a pathway to citizenship for over 11 million undocumented people” (emphasis added), so he has obviously expanded his plans.
Given this, will there be a cut-off? Given Biden's expressed distaste for immigration enforcement, I cannot envision how there would be, or even that it would make much difference anyway. Coupled with his promises to defang worksite enforcement, there would be no impetus for any alien who did not make any arbitrary cut-off to leave.
Second, what about "unauthorized immigrants" who enter illegally or overstay between now and the end of Biden's 100-day moratorium on removals, or even the point at which amnesty is announced or implemented? Would they also be eligible for amnesty (legislative, administrative, or through non-enforcement)? Most amnesties have a cut-off (to prevent a wave of new illegal entrants), but nowhere in either of Biden's campaign documents is one mentioned, let alone listed.
Once more, I have to conclude that this omission is deliberate. But, if it is, Border Patrol agents and CBP officers at the ports would be left doing nothing more than patting down migrants for drugs and weapons, and sending them on their way. Plus, we might as well fire our State Department consular staff — unless we needed them to check whether a foreign national abroad has committed a felony in the United States.
Biden has likely learned from DACA. That was intended as a temporary administrative action, pending legislation to grant benefits to DACA recipients. The subsequent legislation has never been passed, but (as Trump's statements show) support for it has grown as nearly 700,000 aliens have been shielded by that program. By granting an indefinite administrative amnesty to millions of aliens in the United States, Biden would be better positioned to push through a much broader legislative amnesty.
Both Donald Trump and Joe Biden have come out in support of an amnesty for some number of illegal aliens in the United States — although neither has admitted as much.
As part of his January 2018 "Framework on Immigration Reform & Border Security", the president proposed an amnesty for 1.8 million aliens who are DACA recipients and those who would otherwise be DACA-eligible, except for the temporal constraints on that administrative action. In exchange, the president sought several key reforms in our legal immigration system. Congress has failed to act on Trump's proposals.
Biden, on the other hand, has promised to work with Congress on an amnesty leading to citizenship for nearly 11 million aliens unlawfully present in the United States on his campaign website, with few strings attached.
Pursuant to his plan, those aliens would have to register, pay any taxes due, and pass a background check. Given the fact that the former vice president has promised a 100-day moratorium on removals at the start of his term, and to deport only aliens who have committed felonies in the United States thereafter, it is doubtful that the unspecified background check would bar many — if not most — criminal aliens.
A companion campaign document — the "Biden-Sanders Unity Taskforce Recommendations" — is less clear with respect to that amnesty, suggesting that the Biden-Harris administration would at least initially grant an administrative amnesty to aliens unlawfully present in the United States before seeking legislation to legalize those nearly 11 million aliens.
Given the former vice president's statements, and his vow to curb immigration enforcement if elected, it is possible that Biden could institute a de facto amnesty of the vast majority of aliens illegally present in the United States, even before implementing any administrative or legislative one.
Left unclear is whether the Biden administration would limit any amnesty to "nearly 11 million" illegal aliens, or whether it would ultimately apply to a larger number — assuming that there were more such aliens in the United States. Biden has also not proposed a cut-off date for any such amnesty, meaning that a wave of aliens could seek to enter illegally up to (and perhaps after) the implementation of any amnesty, to take advantage of those benefits.