Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning again, everyone. Now, we continue with our election-year series 30 issues in 30 days, and we've reached Issue 11, DACA and documents, as we compare Trump and Biden on their policies toward the DREAMers and other undocumented immigrants. Now, DACA, remember DACA, remember illegal immigration, undocumented immigration, choose your term. It used to be the biggest thing in the whole Trump administration. DACA, which stands for Deferred Action for Childhood Arrivals, was an immigration policy signed into law as an executive action by President Barack Obama in June of 2012.

The policy allows some undocumented people, specifically those who arrived in the United States as children, not through their choice, and then came of age in this country to receive a renewable two-year period of deferred action from deportation and allowing those DACA recipients to get work permits.

Six years earlier in 2006, Democrats, including then-Senator Joe Biden, were engaging the George W. Bush White House in an attempt to create a path to citizenship for most undocumented immigrants who were law-abiding. An NPR piece from that year reported that there were about 11 million undocumented immigrants in the United States at the time.

In exchange for a path to citizenship, the Democrats agreed to a wall, or rather a fence. Here is then-Senator from Delaware, yes, a guy named Joe Biden, speaking to a South Carolina rotary club in November of 2006.

Joe Biden: Folks, I voted for a fence. I voted unlike most Democrats, and some of you won't like it. I voted for 700 miles of fence, but, let me tell you, we can build a fence 40 stories high. Unless you change the dynamic in Mexico and, you will not like this, and punish American employers who knowingly violate the law when, in fact, they hire illegals. Unless you do those two things, all the rest is window dressing.

Brian: Also in that speech, Biden wasn't so much worried about undocumented immigration per se, just the people being here as he was about drugs. Here's a little more of that speech.

Mr. Biden: Why I believe the fence is needed does not have anything to do with immigration as much as drugs. [inaudible 00:03:12] Let me tell you something, folks. People are driving across that border with tons, tons, hear me, tons of everything from byproducts for methamphetamine, to cocaine, to heroin, and it's all coming up through corrupt Mexico.

Brian: Sounding a little familiar to a certain 2016 presidential nominee?

President Donald Trump: I will build a great, great wall on our Southern border, and I will have Mexico paying for that wall. Mark my words.

Brian: President Trump, then-Republican presidential nominee, obviously, speaking at a campaign event way back in June 2015. Seems like lifetimes ago. Fast forward to January 2018 when Democrats met with Republicans and President Trump to offer a solution for a path to citizenship for DACA recipients and other undocumented immigrants.

Remember the only news made at that meeting was Trump's infamous remark on "asshole countries" and why can't we have more immigrants from Norway. Trump rejected the emerging bipartisan deal. Joining me now to talk about how DACA has held up under the Trump administration and how Joe Biden would approach immigrants without documents if he were elected president is Caitlin Dickerson, New York Times immigration reporter. Hi, Caitlin. Welcome back to WNYC. Thanks for doing this.

Caitlin Dickerson: Hi, thanks for having me.

Brian: The Trump administration has tried to cancel DACA. What's the legal status of the DACA recipients today?

Caitlin: The legal status of DACA recipients remains in limbo. It's interesting that you chose to focus on DACA recipients, because we're talking about roughly 600,000 people currently, who have this temporary status, they've got permission to remain in the United States, but they're not technically fully legal. Relative to other groups that have been impacted by the Trump administration's immigration agenda, DACA is actually not that big, but they're this incredibly politically powerful group because of how much bipartisan support they have.

The Trump administration has really honed in on that and tried to- at least in name at least in a way that it can claim in terms of the president's bid for reelection, he loved to say that he got rid of DACA, but have they ever wanted to fully go through with the idea of pursuing the 650,000 DACA recipients to deport them? I don't think that's ever been the case.

The administration tried to get rid of the policy that established DACA that President Obama created. The Supreme Court said he couldn't do it, that the way he had tried to go about it violated the Administrative Procedures Act. He needed to basically try again.

After that, a federal court said the Trump administration had to fully reinstate the DACA program, but they haven't. It's been partially reinstated, so that right now people can get one-year renewals, but no new applications are being accepted. Unfortunately, the answer to where DACA recipients stand now is that they're in limbo, and it's been that way for so long. I think it's because of the way the policy was established. It's not established by law, it wasn't passed by Congress. They just continue to be lobbed back and forth politically between the executive branch and the courts.

Brian: Now, Trump says he is sympathetic to DACA recipients, not so much to other undocumented immigrants, but to these people who were kids when they were brought here, no choice, came of age as Americans, as far as they feel like, they grew up in America. He has some sympathy to the idea of not deporting them, but he always asserts that President Obama's executive order creating the policy in that way was unconstitutional. Does Trump have an alternative plan?

Caitlin: The administration hasn't put forward an alternative plan, and you're right. That ambivalence has been clear from the first days that President Trump began talking about DACA recipients or DREAMers. He'll say that he really supports them and he doesn't feel like it's their fault that they came to the United States regularly, but then he tries to get rid of the program that offers them this semblance of legal protection.

I think what we most likely would have seen has the Trump administration been successful in its attempts to eliminate DACA, I think that we would have just seen a deep prioritization of the deportation of DACA recipients. You mentioned the estimate for the number of people in the United States without legal status is about 11 million. Obviously, immigration authorities can't go after every single one of those people.

Going after DACA recipients for deportation would be incredibly dangerous politically to do, because the vast majority of Americans agree that DACA recipients should really not just be left alone by immigration enforcement authorities, but actually provided a pathway to citizenship. It's unclear what the Trump administration's end goal was. They wanted to get rid of DACA status to be able to claim that success, but the logical next step in terms of the president's most hard-line immigration enforcement fans, those members of his base that care about that issue most, they would have next wanted the DACA recipients to be deported.

I think the president didn't want to ultimately deal with the political fallout of that. In this weird way, it's like the Supreme Court stepping in and preventing him from being able to eliminate DACA saved the administration from having to deal with whatever the fallout would have been from their next step, either going after DACA recipients or deportation or not.

Brian: As far as the rest of the 11 million, or whatever the real number is of older undocumented people, Trump ran on a deportation force, but the Obama-Biden administration also drew big protests with Obama called the "deporter in chief" by protesters. How different have their deportation policies been?

Caitlin: That's a really good point. It's interesting that philosophically, I think that President Trump couldn't be any more different from President Obama and from Vice President Biden in terms of how they talk about and maybe even how they think about. The role that immigration plays in American society, but when it comes to actual enforcement, there are ways in which the two administrations aren't as different as people think or as the Trump administration, I think, would think at times. The answer is that it's complicated, the Obama administration deported a lot of people.

I think that Joe Biden is a law and order guy, his reflex is to say, "Let's look at the laws and let's enforce them," but what's been interesting about President Trump's very hard-line, both policies and rhetoric, is that they've allowed this light to be shined on aspects of the immigration enforcement apparatus that predated this administration, but that really aren't palatable or as palatable as previous administrations may have thought to the American public once they know about those things.

For example, the big cages that exist in some of the border patrol processing facilities in Texas, that kids have been photographed inside, the New York Times toured those facilities and photographed cases like that back when President Obama was in office, and that administration did deport a lot of people.

There's a complexity there and that the way that deportations were counted while President Obama was president changed, and so people who were basically just caught right along the border and immediately pushed back into Mexico, those numbers started being counted in the overall deportation numbers. It makes it look like President Obama deported more people than he did, but there's no denying that, especially in the early years of the Obama administration, they really did take a hard-line approach trying to curry favor among people who wanted to be assured that then-president wasn't just going to allow for complete lawlessness along the border.

The Obama administration thought that would then get them enough support to be able to do things like codified DACA into law to pass comprehensive immigration reform. Obviously, that plant backfired, but I think that going back to what I was saying about how Trump has changed the landscape here, I think that it's really going to force Joe Biden to move more to the less than he was the last time when he was serving as President Obama's Vice President. I think you'll see him raise the refugee admissions cap immediately back to where it was when President Obama left office at 125,000 people a year, I think you'll see him reinforced DACA.

I think you'll see him start to strip away at some of these policies that have really limited access to asylum that President Trump has introduced, but there's going to be tension, because if these policies are completely eliminated on day one, I'm told that people who are already advising the Biden campaign that the flood gates will open, and they don't want to deal with that either, because then you've got detention centers that are overcrowded, you've got other humanitarian concerns. There's going to be tension. There's going to be a move to the left, but it's not going to be a night-and-day shift that a lot of immigrant advocates would like.

Brian: We're comparing the Trump and Biden positions on undocumented immigration for another few minutes with Caitlin Dickerson, New York Times immigration reporter. The Trump side accuses Biden of being for "open borders," and some Democrats are calling for "decriminalizing the border." What does that mean, and what's Biden's position?

Caitlin: Decriminalizing the border is this idea of, how do we, as a country, how do we legally look at the act of crossing the border without prior permission? It's technically a civil infraction which has all these implications for how immigration enforcement actually look, the reason that when I suppose to somebody's house, they can't just break down the door and get a warrant and pick them up and arrest them and take them in is, because this act of unlawful presence in the United States is a civil infraction.

There is a federal criminal statute that the Trump administration has used more than prior administration had. The criminal statute can be used to prosecute people for crossing illegally or reentering, doing it multiple times, which carries a more heavy criminal penalty if it's actually pursued. That's what the discussion is about between people on the far left, who don't think there should be any criminal consequence for crossing the border without prior permission, at most they see it as a civil infraction, something like a traffic ticket, versus members of the Trump administration with the president himself, Stephen Miller, who really feel like crossing the border in and of itself should land somebody in jail.

Of course, the question of the consequence, the appropriate consequence becomes even more complicated when you're talking about large numbers of people who cross the border in between ports of entry, so without prior permission, illegally, because they want to seek asylum. That's something that's happened more and more under the Trump administration because of these policies that have limited the number of people who can cross the border every day.

Now the borders are effectively closed because of COVID rendering this whole discussion move, but when that policy lifts, if that policy lifts, the Trump administration has gone to great length to limit the number of people who can cross through those legal ports of entry every day. People who want to come into the United States and seek asylum, say like, "Look, I don't have any other choice. Of course, I'm going to cross between a port of entry, but look, I'm turning myself over to a border official as soon as they get across, and I'm requesting asylum. Here are my documents and here's my support for that case."

It becomes complex, that question of, is that a prosecutable offense? Should that be a prosecutable offense? I think that the Biden campaign and Kamala Harris have talked about the idea that they don't want to see criminal consequences for that act alone. If you're bringing drugs, if you're trafficking people, if you're coming multiple times, they said, yes, you should be prosecuted, but that first time, especially if you're seeking asylum, they've talked about trying to get rid of any consequences for that.

Brian: Decriminalizing that. Am I right that even under that circumstance that you just described, where people seeking asylum couldn't come across because the legal points of entry were closed, and so they came across between those points of entry, but actually seeking government agents so they could turn themselves in and officially apply for asylum, even in those cases, children were taken from their parents?

Caitlin: Those are actually the very cases that the Trump administration tried to focus on in its efforts around family separation. We know that a lot of the way that the Trump administration has described that practice and that policy is totally inaccurate, and that regardless of the way that families cross the border, many of them were separated from one another. If you go back and read or listen to Kirstjen Nielsen, who was the secretary of Homeland Security at the time that that policy was fully underway, she talks about how the administration only wanted to separate families if they'd crossed the border illegally, and she felt there had to be a consequence for crossing the border illegally.

She's taking, I think, the hardest line stance in response to that question, we were just discussing here. Should there be a consequence or shouldn't there be? She felt that the Trump administration, whose wishes she was putting into practice, felt that not only should there be a consequence, but it should be the harshest possible consequence, which is that your kids end up being taken away from you. They saw it as something that would serve as a deterrent, and so they said, if you cross the border illegally, even if it's to seek asylum, there has to be a consequence, and that's why we're going to separate families to discourage other people from doing the same thing.

The complexity that's important to point out, the one that I mentioned at first, which is that a lot of people were separated, even if they did present themselves legally at a port of entry. The family led by this woman [unintelligible 00:19:00] who was at the name plain tip of the federal case that resulted in all those families being reunited. She crossed the border legally with her daughter and they were separated.

The way that Kirstjen Nielsen described the policy has never been fully accurate, but even for those who did cross illegally and then end up separated, it's important to realize that a lot of them did it because the legal borders had effectively been closed. There were letting so few people across every day, that families felt that was the only option in terms of trying to request legal status.

Brian: The last question, just last Wednesday, I see Biden released two plans for immigration reform if he's elected. One is for what could be his first 100 days in office, he would end the separation of parents and children at the border and put it into for-profit detention centers. Have you reviewed that portion of the plan, and based on your coverage of the detention centers, do you think the plan could work?

Caitlin: I have looked at the plan because the idea of getting rid of for-profit

[inaudible 00:20:00] one that has been posed many times, and Hillary Clinton talks about it as well In 2016. It's difficult because these private prison companies tend to be in years-long contracts with the federal government, and so their money is already guaranteed. Eventually could those contracts be phased out? They could. The way that the Biden administration wants to go about getting rid of those contracts and ultimately shrinking the number of detained immigrants in the US or is to reintroduce and expand programs that the Obama administration started to do case management.

Because remember that immigration detention is not meant to be punitive in nature, even though it looks and feels exactly like prison and jail for most people, it actually legally exists as a way to make sure that people show up for their immigration court hearings. The Obama administration established case management programs to make sure that people knew where they needed to be in court, when they needed to be there. Some people were put on ankle bracelets so that they can be tracked. It's almost like you have a probation officer who's checking in with you constantly to make sure that you're going to show up.

Until that those programs were actually really successful in ensuring that people did show up for their court cases, and so that advocates and folks who created those programs made the argument that we don't need to have this vast detention system. It's the only reason it exists is to make sure that people show up for their immigration court hearings. They're not being held for criminal consequences. If they've committed a crime, they're going to be in criminal custody. Once they're transferred into ICE custody, they've already paid their dues for that crime.

The argument was, we don't need this vast detention center. If we expand case management, that's what the Biden administration, if there is one, would like to do. You could see there how over time detention might shrink, but the Obama administration, when President Obama was in office, did rely on detention as a deterrent, both adult detention, and family detention.

I think that people who- especially holdovers from that prior administration are still going to keep that in mind as a tool, and it just really depends the extent to which they decide to use it, especially now that they've heard from the American people, how they feel about holding large numbers of people, especially children, in detention for long periods of time.

Brian: As we run out of time, Caitlin, it's really amazing that, as we do this segment as Issue 11 in our 30 issues in 30 days series, it feels so off the news. We're going to get back to the news in a minute, right after the break that's coming up, breaking news on COVID just in the last few minutes, the press secretary Kayleigh MCEnany is the latest in the president circle to test positive for COVID now.

We will start from there and continue to cover those related issues. When President Trump ran for office in the first place, it was really on this issue, right? It was after years, almost a generation of some Republicans like President Bush and a coalition of Republicans and Democrats in the Senate, trying to come up with a comprehensive immigration reform plan, including a path to citizenship for the millions of law-abiding undocumented people here, the rank and file Republicans, too many of them around the country and in the Congress just wouldn't have it.

Trump pegged his whole run for office at the beginning on that resentment. Now here we are in the throws of the campaign when we might have thought, with the family separation and everything else that has happened in the last four years, that this would be the hot button issue, or one of the biggest hot button issues on whether he should be reelected, and here we sound off the news talking about it.

Caitlin: There's a way of looking at it like that, Brian. Sure, look, we're in the middle of the pandemic that nobody could have anticipated in that has really offended a lot of expectations around politics and around this campaign, but it's important to remember that immigration has never been far from this administration's mind. Curtailing immigration is central and arguably the centerpiece of President Trump's vision for what he wants to achieve as commander-in-chief of this country and what he'll like to continue to do if he is reelected.

The administration, as we sometimes describe it kind of assault on the immigration system as it exists has not slowed down during the pandemic. It's actually only spread up. Thousands of kids have been expelled alone under this border ban that was established in name because of the pandemic, but as we reported, the idea of using a public health emergency to close the border is something that Stephen Miller, President Trump's chief advisor on immigration, started thinking about and suggesting in his first month in office.

That's just one of several policies that have been introduced during the pandemic, with so much else happening, to try to curtail the immigration system. There was another policy that came down saying that anybody who'd cross through a country that had an outbreak of a major infectious disease would no longer qualify for asylum. The irony being that COVID was worse in the United States than it was in the countries where many people were coming from to try to get access to asylum here.

It may not be the first thing that we're talking about, but it's important for people to realize that the administration behind the scenes is still going full steam in its campaign to curtail immigration of all kinds, undocumented immigration, but also legal employment-based immigration, family-based immigration. All of these things are being limited.

Brian: That relationship to COVID is really interesting. I guess if you're a hammer, every problem looks like a nail. If you're the Trump administration, every problem looks like a reason to close the border. Caitlin Dickerson, New York Times immigration reporter, thank you for all that information.

Caitlin: Thank you.

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