Joe Biden has won the popular vote and the majority of the electoral college vote. Whether he will be sworn in as the 46th President of the United States, however, remains to be seen. In yet another break with precedent and an attack on our democracy, President Trump has refused to concede and claims that the election was plagued by widespread fraud. He made the same claim in 2016, and even created a commission, chaired by Vice President Mike Pence and anti-immigrant crusader Kris Kobach. That commission quietly shut down after failing to discover any significant evidence of fraud, and so far, there is no evidence of wrongdoing in the current election. Nevertheless, when we have a President who has repeatedly demonstrated his contempt for the rule of law and for reality itself, the peaceful transition of power in no longer a given.
And what’s worse than the President are those who support and enable him. We already know that many Republicans care more about winning than about democracy. Exhibit A in that regard is the Supreme Court nomination process. Senate Republicans blocked Merrick Garland from even receiving a hearing during the last year of President Obama’s term. The claim was that since an election was upcoming, “the people” should decide who gets to fill the vacant seat on the high court. Four years later, the same Senate Republicans rushed through the confirmation of a Justice they supported ideologically, Amy Coney Barrett, in the days before the 2020 election. This action laid bare the utter contempt Republicans have for fairness and for those who disagree with them. In my view, democracy simply cannot exist in such an atmosphere.
Now, the stakes are even higher. Are Republicans just indulging their base and Mr. Trump? Or do they expect something to come of their challenges? And if the results of the election are somehow overturned or subverted, what then? I fear that democracy cannot survive such a moment.
And how does all this affect asylum seekers and immigrants? Even assuming the Trump Administration leaves peacefully, what can it do during the remaining 70-some days before Mr. Biden takes office? Can it make changes that outlast the Trump Presidency and are difficult for Mr. Biden to reverse?
One thing we are seeing is the continuing flurry of new regulations and other actions aimed at making it more difficult to obtain asylum or other legal status in the U.S. Probably the most significant recent action is the refugee cap for FY2021, which further reduces the number of refugees our country will admit for resettlement. For much of the Obama Administration, our country resettled about 85,000 refugees per year. During Mr. Obama’s last year in office, the U.S. resettled about 110,000 refugees. For FY2021 (which began on September 30, 2020), our country will resettle a maximum of 15,000 refugees–the lowest number in the modern history of our refugee program.
In another recent action, on November 5, the Attorney General issued a decision making clear that there is no “duress exception” to the persecutor bar. What this means is that if a person is forced to engage in “persecution” (for example, by serving as a prison guard) under duress, she cannot qualify for asylum. Also, the evidentiary burden for the government has been reduced so that if evidence exists indicating the persecutor bar “may” apply, the asylum applicant must demonstrate that the bar does not apply. Under this strange standard, many asylum applicants could be subject to the bar. Imagine a person who was forcefully conscripted into the Syrian army, an army which commits human rights violations. Even when there is no evidence that this person engaged in any persecutory conduct, he must present evidence that the persecutor bar does not apply. Whether this will block many people from obtaining asylum, I am not sure, but it could. At a minimum, the new decision will make it more burdensome for applicants to present their asylum claims.
The ongoing rule-making is part of a four-year effort to restrict asylum and immigration. Many policies have gone into effect; others have been blocked by courts or are subject to ongoing legal challenges. For example, the Trump Administration increased the wait time for asylum-pending work permits from 150 days to one year, it implemented the “public charge rule” making it more difficult to obtain a Green Card, it narrowed the basis for obtaining asylum for victims of domestic violence and gang violence, it created the Migrant Protection Protocols, which forced thousands of asylum seekers to wait in Mexico in unsafe conditions, it issued restrictions on asylum for people who passed through third countries or countries affected by the coronavirus, it implemented the Muslim travel ban, etc., etc. Whether any more new rules or decisions will be issued in the next few months, we do not know, but it certainly would not be surprising.
One thing the Trump Administration has failed to do is change the immigration law itself. That requires an act of Congress, and even though Republicans controlled both Houses in 2017 and 2018, the President failed to introduce legislation related to immigration or asylum. As a result, all of the changes we’ve seen over the past four years have been regulatory. This means that a new President would have the power to reverse those changes, though those efforts could be blocked by a court if they are found to be “arbitrary and capricious” (as the Trump Administration repeatedly found out).
President Elect Biden has laid out an ambitious immigration agenda and has pledged to reverse many of Mr. Trump’s immigration rules. However, given that the Senate will likely remain in Republican hands, some of his ideas may prove impossible to implement. Others may come up against hard political realities–I wonder, for example, what to do about the thousands of migrants stranded at the U.S./Mexico border. Something needs to be done, but throwing open the gates seems politically risky and could result in a severe backlash (in the 2022 election, for example). It would be far better to come up with bipartisan solutions to these problems, but unfortunately, it seems unlikely that the GOP will play ball.
In any event, Mr. Biden can accomplish nothing until he is sworn in, and as far as I can tell, that is not yet a certainty. I know I tend to be pessimistic, and I hope that I am wrong, but from what I can tell, our country is at the most precarious and dangerous point that we have seen since the Civil War. To get past this moment, our leaders need to put the good of the nation before their own self interest and their own partisan loyalties. I suppose there is a first time for everything.
It’s unclear to me how the Democrats have determined that Ms. Narvaez was an “illegal worker.” Aliens who filed for asylum prior to 1996 received a work permit quickly and were permitted to remain in the U.S. until their cases were adjudicated. Thus, if Ms. Narvaez was indeed an asylum seeker, she was most likely legally eligible to work and live in the United States, and so Mr. Blunt could have lawfully employed her. Whether or not he used his influence and connections to assist her remains an open question, but based on the evidence available, the Democrat’s charge that Ms. Narvaez was an “illegal worker” seems unfounded.