Neither Party Is Happy About Biden’s Handling of the Border

This article is part of the Debatable newsletter. You can sign up here to receive it on Wednesdays. President Biden came into office promising a decisive break from the harsh immigration policies of his predecessor. “We’re going to work to undo the moral and national shame of the previous administration that literally, not figuratively, ripped children from the arms of their families — their mothers and fathers at the border,” he said shortly after his inauguration. In particular, he pledged to “restore humanity” to the asylum system, which under President Donald Trump had become a tool, his campaign said, for “bullying legitimate asylum seekers.” And yet it was only this month that the administration announced it would end in May a Trump-era emergency public health order, known as Title 42, that allows authorities to turn away unauthorized migrants from the nation’s borders, effectively depriving them of their right to claim asylum. The order has been used to carry out more than 1.7 million migrant expulsions. The reversal is of a piece with a larger disconnect between the president’s rhetoric and his government’s policies on immigration, which has earned him attacks from all sides: from Republicans and moderate Democrats who warn of chaos at the southern border and from progressives and immigration advocates who have criticized the administration for failing its mandate to construct a more humane immigration system. How much of the Biden administration’s stumbling on this issue owes to factors outside of its control, and how much of it owes to internal division and mismanagement? As the midterm election season looms, what more could and should the White House be doing to improve the situation at the southern border? Here’s what people are saying. The mess Biden inherited — and the mess he made Biden has made good on some promises to reverse his predecessor’s crackdown on legal immigration, such as rescinding a proclamation banning the entry of foreigners on work visas and extending the time that foreign graduates can work in the country. But when pressed about the southern border, the White House has blamed the previous administration for having “completely dismantled the asylum system.” As Sarah Stillman reported for The New Yorker last year, the Trump administration did indeed severely weaken the asylum system, often in ways that were invisible to the public. But elements of its dysfunction predate even the Trump administration: Immigration judges have long been overburdened, tasked with evaluating thousands of cases each at any given time. By the end of President Barack Obama’s tenure, the backlog of asylum cases, which numbered more than 160,000, had already reached a crisis point. Under Trump, that backlog ballooned; there are now more than 670,000 asylum cases pending in immigration court, each of which takes an average of five years to adjudicate. Some of the Trump’s administration’s changes could take years of litigation to undo. One of the most influential is its “Remain in Mexico” policy, which forced asylum seekers to wait south of the border until their cases were decided. Tens of thousands of people were relegated to unsanitary encampments, where there were widespread reports of sexual assault, kidnapping and torture. Biden condemned the program on the campaign trail, and he quickly ended it after taking office. But the rescission was challenged by a federal judge in Texas, requiring the administration to restart the program. (The Supreme Court is expected to weigh in on the case this summer.) While some Biden officials privately greeted the decision with relief, The Washington Post reported that the administration “has re-implemented the program with a narrow scope and none of the zeal demonstrated by Trump officials.” Inherited challenges aside, it’s clear that Biden’s immigration agenda has also been hampered by internal division. “During the presidential transition, there was a lot of very concerted, specific thinking about what had to be done to slowly build back up the asylum capacity at the southern border,” Jonathan Blitzer, a reporter for The New Yorker, said recently on one of the magazine’s podcasts. But once the administration began and the political attacks started, the plans were abandoned. “The president himself got very skittish,” he added. “Basically the White House blinked.” The White House has also been accused of carrying out its immigration policies in a racially discriminatory manner. It received wide condemnation last year when images surfaced of mounted border patrol agents rounding up Haitians fleeing political violence for deportation under Title 42. By contrast, the United States will welcome up to 100,000 Ukrainian refugees, whom border patrol agents were directed to consider exempting from Title 42. “President Biden’s decision to welcome Ukrainian refugees seeking safety in the United States is the right thing to do,” said Blaine Bookey, legal director at the Center for Gender and Refugee Studies at the University of California, Hastings. But, she added, “There is no way to look at what’s happening at the southern border other than along racial lines.” What more could Biden do? To deal with the backlog at the border, Biden unveiled a new policy, scheduled to take effect on May 28, that aims to shorten the asylum process to six months by authorizing asylum officers, not just immigration judges, to evaluate claims. Immigration advocates warn that this speedier process could worsen due-process violations. “The new interim rule risks sacrificing accurate decision-making for its narrative of speed,” said Eleanor Acer, senior director for refugee protection at Human Rights First. “Imposing unrealistic deadlines will lead to mistaken decisions, additional adjudication to correct those mistakes, and the improper return to persecution of people who qualify for asylum.” Others, though, are more optimistic about the policy’s potential. “It very well could be one of the most significant reforms to the asylum system in a long time, going beyond undoing the Trump administration’s attempts to limit access to asylum, and actually institute meaningful structural reforms,” said Austin C. Kocher, a geographer at Syracuse University who analyzes immigration enforcement data. Immigration hawks, on the other hand, warn that Biden is inviting an immigration crisis by lifting Title 42. Without it, and without a full-throated commitment to “Remain in Mexico,” they warn that even more migrants will come to the border. In reversing what Trump-era policies he could, “Biden has produced an unprecedented torrent of illegal crossings that has overwhelmed border officials,” writes Marc Thiessen in The Washington Post. If he goes forward in lifting Title 42 next month, he adds, “hundreds of thousands of illegal migrants will enter the country. And that’s only the beginning.” What would it take to ensure an orderly asylum process that keeps the border secure and honors asylum-seekers’ due-process rights? The Times editorial board argued last year that it would require nothing less than a complete transformation of the nation’s immigration courts into properly staffed and funded institutions that operate independently of the Justice Department. But that would require congressional action. While such sweeping reform remains unlikely, Ali Noorani, president of the National Immigration Forum, argues there are still legislative avenues Biden could pursue: Last year, Republican Senator John Cornyn and Democratic Senator Kyrsten Sinema introduced the Bipartisan Border Solutions Act, which aims to streamline border processing and improve access to legal services. “These types of reforms, paired with existing legislation that provides legal immigration pathways which address the growing labor shortage and permanent protections for Dreamers, farm workers, and Temporary Protected Status recipients, is smart policy and smart politics,” Noorani wrote in The Daily Beast. The coming political storm over immigration The Department of Homeland Security is bracing for up to 18,000 unauthorized migrants to cross the southern border per day once Title 42 is lifted next month. As midterms approach, the prospect of such an increase has prompted attacks from Republicans spotting an electoral opportunity and Democrats wary of an electoral liability. In a highly publicized response to Title 42’s planned phaseout, Gov. Greg Abbott of Texas, a Republican, sent unauthorized migrants on a bus from Texas to Washington, D.C., and ordered more-extensive searches of all commercial vehicles crossing from Mexico. Like many other members of his party, Abbott has sought to draw a direct connection from Biden’s immigration policy to the surge in U.S. drug overdoses. Moderate Democrats are casting Title 42’s end as a logistics issue, joining Senate Republicans in introducing a bill to keep it in place until 60 days after the end of the Covid-19 public health emergency has been declared. Even Beto O’Rourke criticized Biden for lacking a plan to help border communities prepare for the increase in migration. Electorally speaking, “You sort of have the worst of all possible worlds here,” Blitzer, the New Yorker writer, said. If the Biden administration had stuck to its plan to roll back Title 42 and systematically build up asylum capacity back in 2021, it might have enjoyed wider leeway to break with the previous administration’s policies. “Now, a year later,” he said, “that kind of honeymoon period, such as it was, is over.” Another angle: The Washington Post columnist Catherine Rampell argues that Democrats’ real political liability could be too little immigration. Last year, immigration fell by nearly 50 percent, which has deprived the tight labor market of much-needed workers. Democrats, Rampell writes, “have been so fixated on bad-faith right-wing attacks that they have missed the bigger, and much more serious, immigration-related liability: the millions of immigrants whose absence from the U.S. work force is putting upward pressure on inflation.” Whatever immigration message Biden wants to push, he should start pushing it now, argues Glenn Altschuler, a professor of American studies at Cornell. “More than half — 55 percent — of Americans now disapprove of Biden’s handling of immigration,” he notes. “Turning their assessments around presents a daunting challenge. With the midterms less than seven months away, the clock is ticking.” Visit us for more information at: http://www.beverlyhillsimmigrationlaw.com/index.html