Restoration versus Decriminalization: Where do Joe Biden and Bernie Sanders stand on US immigration policy?

After nearly two years of organizing, campaigning, and debates, the primary race for Democratic nominee for president has winnowed down to two men, former senator and Vice President Joe Biden of Pennsylvania and Senator Bernie Sanders of Vermont. Though the two come from the same demographic group, their political views are considerably different, with Sanders representing the vanguard of the progressive, Democratic Socialist wing of the Democratic party and Biden being a more traditional Democratic Moderate or Centrist who prides himself on the ability to negotiate with Republicans.

Both have published wide-ranging policy plans that have been refined through several years of campaigning and address the issue of immigration directly and extensively. Both position themselves as strong opponents to the restrictionist and punitive immigration policy championed by the Trump Administration. While there are places where their plans converge, mostly in terms of repealing actions taken by the Trump administration, there are also a number of real policy differences between the two. Here we will first clarify where the two candidates agree, and then enumerate the places where they significantly differ.


Both Bernie Sanders and Joe Biden promise to reverse most of the hallmark Trump administration policies on immigration (Muslim ban, Wall and family separation), reaffirm commitment to asylum, and offer a path to citizenship for 11 million people with undocumented status in the USA, but differ on where US immigration policy should go from there. Biden would restore the system to where it was under Barack Obama, while adding some additional features, such as new employment visas, a surge of resources to the border and new judges into the system, and a streamlined process for Greencard holders to gain citizenship. Sanders goes much further, pledging to restructure the entire system to decriminalize all aspects of immigration: he would dissolve ICE, put a temporary moratorium on all deportations, and change laws to make immigration violations civil issues. In short, Biden would restore, and Sanders would radically revamp the immigration system in the US. 


Both Joe Biden and Bernie Sanders

“Trump has waged an unrelenting assault on our values and our history as a nation of immigrants.”  – Joe Biden


“We now have a President who is a racist, a xenophobe, and a demagogue. He has tried, as all demagogues do, to divide us by demonizing immigrants and blaming them for society’s problems.”  – Bernie Sanders

In their platforms, both candidates start with a paeon to the US as a nation of immigrants, recognizing that “other than the native peoples of the Americas” (Sanders) or those who were “forcibly enslaved and brought here as part of our original sin as a nation” (Biden), all ancestors of US Americans came from somewhere else. (In the case of Sanders, his father was an immigrant.) Both go on from this basis to argue that the Trump administration has betrayed this history, in slightly different frames: Sanders uses words like “racist” and “demagogue” while Biden focuses more on “moral failings.” Regardless, they find common ground on numerous points that reverse direction on Trump administration policy and follow the progressive shift of the democratic party on immigration issues.

Both candidates promise to:

  • Reverse the Trump administration’s family separation policy,
  • Rescind the Muslim Ban,
  • Reinstate asylum laws in conformity with international law,
  • Reinstate DACA (aka “The Dream Act”),
  • Stop all funding of Trump’s incomplete border wall with Mexico,
  • End “asylum metering”, the Trump administration practice of allowing only a certain number of asylum applications per day,
  • End for-profit detention centers,
  • Reverse the “public charge rule“, which the Trump administration implemented to allow US Citizenship and Immigration Services (USCIS) to reject people seeking to enter the US based on how much money they have, and
  • Convene a summit with leadership from Central and Latin America to address migration,
  • Support the POWER Act, (Protect Our Workers from Exploitation and Retaliation Act), which extends protection from removal for people who act as witnesses to workplace labor law violations.

As can be seen from this list, both Sanders and Biden would push to eradicate or reverse the Trump administration’s many changes to the immigration system. In a sense, these changes are easily achievable low hanging fruit, given that so many of the Trump administration’s policies have derived from Executive Orders and can also be overturned with an order from the President.

A more difficult promise both make is to find a pathway to citizenship for 11 million people with undocumented status using comprehensive immigration reform (CIR) pushed through Congress. The last such attempt under President George W. Bush failed in 2007, and that was before opposition to all forms of immigration moved to the center of the Republican platform, as it has under Trump. Any such effort would take considerable political capital, that both would need to push through the healthcare reforms they have championed as central to their campaigns.

In addition, both support a regional approach to dealing with migration from Latin America and Central America, with conforms with former President Barack Obama’s policies but diverges from Trump’s, who has chosen the opposite tactic: slashing aid to Central America as punishment for their failure to prevent people from leaving.

So there are numerous points of agreement between the two candidates, particularly when it comes to reforms that address the actions taken by the current president. But what they would positively prescribe for the US immigration system once reversing the changes put through by Trump differs dramatically.

Bernie Sanders

Bernie Sanders via Gage Skidmore on Flickr, (CC BY-SA 2.0) 

Bernie Sanders offers an extensive immigration policy platform on his website, under the heading “A Safe and Welcoming America for All”. While his introduction, similar to Biden, plays on the familiar theme of USA as a nation of immigrants, he immediately marks his approach as different than any of his predecessors by focusing on decriminalization.

“As president, Bernie Sanders would treat border crossings as a civil matter, and fundamentally reform the government agencies tasked with enforcing immigration law to ensure our immigration agencies and officers are serving a humanitarian mission, not a law enforcement one.”

This would radically change the set up of the US immigration system not only from how it is currently operated under Donald Trump, but (at least) as it has been operating since the 1990’s. Sanders would reframe immigration as a civil and human rights matter rather than as primarily a security matter. This approach informs his policies on border policy, immigration and naturalization, and asylum.

Border Policy and Enforcement

Sanders promises to totally decriminalize the border, changing both the laws and enforcement mechanisms, while giving people who immigrate robust additional protections. In doing so, he would effectively turn back the clock on over 25 years of increasingly restrictive immigration policy.

Sanders promotes an immediate total moratorium on deportations, while an audit of current practice is undertaken. He would repeal 8 U.S. Code Section 1325, which provides criminal penalties for irregularly crossing the border, and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), passed under Bill Clinton‘s presidency, which strengthened deportation and drastically reduced the number of immigrants eligible to stay in the country, laying the groundwork for the next years of mass deportation from the USA.

While repealing laws that add criminal penalties to immigration violations, Sanders would also strengthen the tools at people’s disposal if they find themselves in custody. He would allow for a right to counsel for all immigrants (currently not the case, even for minors), double funding for the immigration court system, and create a new “presumption of release” standard judges would use for determining detention. He would also dramatically restructure Immigration and Customs Enforcement (ICE), Customs and Border Protection (CPB) and break up the Department of Homeland Security (DHS) established by legislation passed under George W. Bush. Under this new ordering:

  • “Deportation, enforcement, border and investigatory authority would return to the Department of Justice.
  • Customs authority would return to the Treasury Department.
  • Naturalization and citizenship authority would be given to the State Department.”

Its unclear how hard of a sell this would be to Congress, but its fair to assume that many Republicans and some Democrats are not prepared to abandon DHS, or the construction of immigration as a security issue. What is also unclear is how a system that does not rely on deportation or detention relates to its backlogged court system: with most of the bases for detaining people gone, certainly the number of people finding themselves in front of an immigration judge would reduce too?

Immigration and Naturalization

Sanders promises to fully fund the immigration and naturalization system and to ensure that it is faster, less discriminatory and more inclusive. In this area his platform is less specific, saying he will work with congress or provide funding to ensure a broad range of improvements. He would, for instance, cut backlogs, streamline visa processes, make the process easier to access, ect. While these policies are a bit vague, they rest of the assumption of a totally revamped set up, where these agencies are run by different authorities and not directed towards capturing people or putting up difficult roadblocks to entry and citizenship. That is to say, a different approach follows from the fact that the agencies in charge of immigration and naturalization would be under totally different management and have completely different goals.


Sanders makes tweaks to the asylum system, mainly by ending “zero tolerance” laws and Department of Justice guidelines enacted under Trump that dramatically restricted the grounds for receiving asylum in the USA. A bigger change is the fact that all people seeking asylum would be entitled to legal counsel and translation: this policy has the potential to dramatically shift the power balance in immigration courts, where currently people are forced to represent themselves, regardless of age or ability, and often in a language and legal system they don’t understand.

Joe Biden

Joe Biden via Phil Roeder on Flickr (CC BY 2.0)

Like Bernie Sanders, Joe Biden dedicates a great deal of space to immigration policy within his overall platform, and outlines numerous and extensive policy changes to the current system, or even to the system under his former administration with Barack Obama. However, the changes proposed under Biden‘s plan, unlike Sanders’, do not aim at altering the underlying set-up of the US immigration system as one that balances security concerns (criminalization), economic stability, family reunification and human rights.

Border Policy and Enforcement

Biden concedes that under his administration with Obama, deportations were excessive, stating, “we must do better to preserve dignity.” Nevertheless, he offers to restore border enforcement priorities to what they were under Obama: ostensibly aimed at people who present a risk to public safety or “national security”. However, he offers changes to “restore” asylum, for instance by doubling the number of judges in immigration courts, and codifying the Flores agreement, which establishes standards for the detention of children who arrive in the US unaccompanied by relatives. (The Trump administration has made efforts to evade these standards to allow for indefinite detention of children, which were rejected in federal court.) . He would also invest in a “case management system” and other alternatives to immigration detention that he says, citing evidence, are “highly effective and are far less expensive and punitive than detaining families”. He would also cease targetting military members and veterans for deportation.

Biden says that Immigration and Customs Enforcement (ICE) and Customs Border Protection (CPB) will be held accountable to professional standards by his administration. “Biden will increase resources for training and demand transparency in and independent oversight over ICE and CBP’s activities,” he would also appoint Senate-confirmed officials to oversee the agencies. This would make a departure from Trump, but one nowhere near so radical as that offered by Sanders.

Immigration and Naturalization

Like Sanders, Biden promises to streamline naturalization for Greencard holders and increase financial resources so that the backlog of immigration cases can be cleared. This promise, obviously, has a different look when clearing a backlog still includes pending deportations (recall that Sanders would block deportation for the time being.)

Biden would also shuffle around priorities in visa allocation. He promises to expand high -skilled visas while ensuring that temporary visas are not used to undermine wages: “An immigration system that crowds out high-skilled workers in favor of only entry level wages and skills threatens American innovation and competitiveness”. However, he does not define what kind of visas have previously depressed wages and in what industries. At the same time, he would expand legal immigration possibilities for seasonal agricultural workers. He would also make stricter requirements for employer verification schemes, a long-standing desire of immigration restrictionists who want employers to be responsible for determining and verifying the immigration status of people who work for them.

Uniquely, Biden suggests allowing a form of community-based immigration:

As president, Biden will support a program to allow any county or municipal executive of a large or midsize county or city to petition for additional immigrant visas to support the region’s economic development strategy, provided employers in those regions certify there are available jobs, and that there are no workers to fill them. Holders of these visas would be required to work and reside in the city or county that petitioned for them, and would be subject to the same certification protections as other employment-based immigrants.

He cites a study by the Economic Innovation Group, who seem to have coined this “heartland visas scheme.” It is an interesting idea that deserves more research, and certainly an explanation of how to counter anti-immigrant sentiment so that people are not sent to stay (without being able to leave) communities that are antagonistic to them.

Once newcomers have arrived, Biden has a number of policies aimed at ensuring that they are welcomed to and integrated into their local communities, that he says he will fund through the federal government. For instance, he would support creating “Offices of Immigrant Affairs” at state and municipal level to craft policies inclusive towards immigrants, and numerous other individual policies, such as:

  • “Promoting statewide seals of biliteracy to recognize people who graduate from high school speaking multiple languages;
  • Driving campaigns to help lawful permanent residents naturalize;
  • Facilitating statewide efforts to lower the barriers to relicense professional degrees and certifications from other countries.”

These policies seem to be aimed at the local level, and its somewhat difficult to see how the President can hope to shape such specific ideas outside of supporting and endorsing them and organizations that promote them, like Welcoming America. Biden says he would also push laws to repeal punitive state-level immigration laws, a hint at the uphill battle it could be to change the right-ward drift of local immigration policy in many states.


Biden is sharp on asylum reform, enumerating specific policies to address the backlog and return to the slightly more generous legal standard existing under previous administrations. He would renew the commitment to accepting people who claim asylum on the basis of gang harassment (a touch-and-go basis previously), being a victim of domestic violence (part of the Biden-originated Violence Against Women Act or VAWA) and political persecution. He would double the number of judges in immigration courts across the country, and “surge” resources down to the border to deal with the current backlog of people in detention awaiting a day in court (a policy championed by Migration Policy Institute.) Like Sanders, Biden would end for-profit detention centers and give resources to migration courts, however, he does not suggest mandating legal representation for people in migration proceedings.

In addition, he would increase yearly refugee admissions to 125,000 people. For context, the Trump administration plans to admit 18,000 refugees in 2020, and in Germany, with a population less than a fourth of the US, the numerical cap agreed to by the conservative parties is 200,000 per year.


Sources and Further Reading
“A Welcoming and Safe America for All”,  Bernie Sanders’ Platform for President
“The Biden Plan for Securing Our Values as a Nation of Immigrants”, Joe Biden’s Platform for President
USCIS Announces Public Charge Rule Implementation Following Supreme Court Stay of Nationwide Injunctions, USCIS Press Release, Jan 2020
Trump plans to cut U.S. aid to 3 Central American countries in fight over U.S.-bound migrants, Washington Post, March 2019
The disastrous, forgotten 1996 law that created today’s immigration problem, Vox, 2016
From Managing Decline to Building the Future: Could a Heartland Visa Help Struggling Regions? Economic Innovation Group
The U.S. Asylum System in Crisis: Charting a Way Forward, Migration Policy Institute, 2018
Key facts about refugees to the U.S., PEW Research Center, 2019


Title image: Pre-Debate Sights in Des Moines via Phil Roeder on Flickr, (CC BY 2.0)

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