Are Biden’s Immigration Policies Stuck in the Trump Era?

This past weekend, the Times published a major investigation about migrant-child labor in the United States. The story details a “shadow work force” of minors who immigrate to the country without their parents and are funnelled into gruelling jobs, often with large corporations, that violate child-labor laws. The story also included video of Xavier Becerra, the Secretary of Health and Human Services, urging his staff to discharge minors from government facilities at an “assembly-line” pace. The reporting and the fallout—days after the story came out, the White House said it would launch a widespread investigation into child-labor practices—have highlighted questions about how much Joe Biden’s immigration policies differ from those of Donald Trump, who separated children from their parents at the border and implemented a policy, known as Title 42, that used the emergency of the pandemic to expeditiously send asylum seekers back to their home country, or the country they were last in, usually Mexico. Last week, the Biden Administration proposed a harsh replacement for the Title 42 policy, which is set to end in May, that radically limits asylum at the border. To talk about the new Biden rule, I spoke by phone with Aaron Reichlin-Melnick, the policy director at the American Immigration Council, which advocates for better treatment of immigrants. During our conversation, which has been edited for length and clarity, we also discussed the differences between Biden- and Trump-era immigration policies, why militarizing the border without fixing our immigration infrastructure has left everyone angry, and how the government should be dealing with unaccompanied minors in its care. How much has border policy changed since Biden became President, a little over two years ago? Sign up for The Daily. Receive the best of The New Yorker, every day, in your in-box. E-mail address Your e-mail address Sign up By signing up, you agree to our User Agreement and Privacy Policy & Cookie Statement. Border policy has changed less than most people think, but probably more than some advocates would like to admit. The Biden Administration has largely kept the Trump Administration's biggest border policy, Title 42, in effect. However, they have made a series of changes to treat people who cannot be expelled under Title 42 with a far less punitive, less harsh mind-set. Title 42 is the pandemic-era health policy adopted by the Trump Administration in March, 2020, that allowed them to rapidly expel migrants who cross the U.S.-Mexico border or the U.S.-Canada border. Of course, the latter is far less common. Under the policy, migrants are not processed under normal immigration law but are instead simply taken to the nearest border or put on a plane and expelled to another country. The reality about Title 42 has been that it has almost entirely rested on Mexico to carry out. The U.S. cannot expel somebody to a country that is not willing to accept them. And during the last two and a half years, Mexico has agreed to accept many nationalities other than their own under Title 42, which has allowed both the Trump and the Biden Administrations to use this authority a lot more than they could have otherwise. How do the two Administrations differ in terms of how people are treated? In 2018 and 2019, we saw that there were really no depths to which the Trump Administration wasn’t willing to sink in order to deter migrants from coming to the border, including family separation, increased use of detention, and the Remain in Mexico program. [This program required asylum seekers passing through Mexico from other countries to wait there while applying for asylum in the U.S.; the Biden Administration has sought to end the program legally, and has largely discontinued its use.] The Trump Administration had no bottom, and that led to horrific scenarios, such as in 2019 when multiple children died in Border Patrol custody, likely due to overcrowding. In 2021, when Biden took office, unaccompanied children started piling up in border stations because there weren’t enough beds in the United States to take them in. The Administration really focussed on keeping down overcrowding in Border Patrol cells. And whereas the Trump Administration seemingly didn’t care if there were thousands of people in squalid conditions in Border Patrol cells, as long as they could keep applying deterrents to as many people as possible, the Biden Administration has recognized that overcrowded border cells are unsafe and dangerous and something that they should be trying to stop. This is a really key difference between the two Administrations, and it has played out in many different ways. The Biden Administration is a lot more comfortable releasing people and allowing them to seek asylum inside the United States than the Trump Administration was. That brings us to this child-labor story, which included officials talking about the need to release children more quickly, even without properly vetting the people to whom they’d be released. Can you talk about the different kinds of costs and benefits for both children and adults in terms of how long people should be in the system? In my previous answer, I was mainly talking about releasing people and getting them out of Border Patrol processing centers. When a migrant arrives at the U.S.-Mexico border and is taken into custody by the Border Patrol or Customs and Border Protection, they go into a processing cell. Ten years ago, these were almost entirely concrete cells, just fundamentally awful places for any person to be. These were not designed for overnight stays, for example. There were no showers, no beds, nothing like that. Over the last decade, the Border Patrol has built a series of dedicated processing centers and soft-sided facilities that have made that process somewhat better—still not great, but somewhat better. When we talk about overcrowding at the border, I’m specifically referring to the twenty-four to seventy-two hours after a person is taken into custody. The Biden Administration has really tried to make sure that most people are out of custody in that timeframe, which means released, directly sent to a shelter, or sent to ice detention. VIDEO FROM THE NEW YORKER Separated by a Smuggler But on this broader question of unaccompanied children, the Times story is horrific. The idea that there are still children out there laboring in the United States in these really exploitative situations is terrible. The Biden Administration is right to say it’s going to crack down on this. But it’s also important to acknowledge why the Administration was trying to get kids out of Office of Refugee Resettlement shelters as quickly as possible. Some of this had to do with logistics. In the spring of 2021, at the height of the arrival of unaccompanied children, the Office of Refugee Resettlement did not have enough beds for unaccompanied children, and that forced the United States to put up the Fort Bliss emergency intake shelter, in El Paso, Texas. It started using convention centers in various places to temporarily hold kids. And until they built up this capacity, children were being stuck in Border Patrol cells for days at a time, which was awful. And so the Biden Administration found itself stuck between a rock and a hard place. To some extent, this is how the Office of Refugee Resettlement, which deals with these children, has been handling this issue for years now. There are no perfect answers. If you put all of your resources into making sure that every single sponsor is perfect—that there are no concerns and that every single “i” has been dotted and “t” has been crossed—then you are going to have children in these government-run shelters, away from their families, for potentially months at a time, even when there are people willing to take them. That is often family members, loving family members, good people who are not trying to exploit them. At that time, you’re going to have kids piling up in Border Patrol cells because there just aren’t beds to take them in these government shelters. But, if you get kids out of the shelters too quickly, because you’re trying to clear kids from the border, then you’re going to be inadvertently releasing some kids to bad-faith sponsors who do take advantage of them. And it leads to the situation that the Times described. In early 2021—and I don’t know when that clip of Secretary Becerra came from—the big focus was on the fact that there were so many kids stuck in Border Patrol cells. The idea was that you needed to get them out of these shelters quickly. It was very much a situation where there were no right answers that solved all the issues. You recently retweeted someone who made a point that I want you to expand on, if you agree with it. About the Times story, the tweet says, “I appreciate that this story calls out Becerra and HHS, but it makes it seem like keeping kids in custody longer is the answer when in reality this is happening bc of US border militarization.” How is U.S. border militarization partially responsible for this situation? ADVERTISEMENT The point I think that was being made is that a lot of border policies have encouraged families to separate. For example, under Title 42, if you’re a family who arrives at the border from Guatemala, and you try crossing the border with your child, you and your child are going to be expelled together back to Mexico. We saw this with the Remain in Mexico program, too. Unaccompanied children were exempt from the Remain in Mexico program under Trump. And so you saw families deliberately splitting up and sending the children across alone so that they would be treated as unaccompanied children and could go live with family members in the U.S. This is not a new issue. The reality is that in our laws unaccompanied children have heightened protections, which I think is the right thing because children are so vulnerable. But what that means is that when we put these harsh deterrents in place aimed at families, at times, that causes families to self-separate. We’ve seen this with Title 42, and we’ve seen this with many policies during the last two years. When we focus on the protections for unaccompanied children, it gets into this question of how Republicans would like to strip those protections from them and make it easier for these kids to be sent back to their home countries. Personally, I think that’s the wrong way to look at it. What we should be doing is making it easier for families to come here and get rid of the incentives that may be created for families to self-separate. Many people think that Biden officials continued Title 42 for fairly cynical reasons, or that they conveniently used it to minimize what they thought was a political problem of people showing up at the border. Starting at the beginning of the Biden Administration, what would’ve been a more appropriate way of dealing with the border? The Biden Administration should have ended Title 42 immediately. Title 42 is a public-health law. It is not an immigration law. Before 2020, it had never been used that way. It was a law that sat on the books for a hundred and twenty-five years, [its predecessor] having initially passed in 1893, in an era of the steamship, and the Trump Administration dusted it off and created this whole concept of Title 42 expulsion. The concept did not exist until then. When Biden took office, he should have said, Look, this is ridiculous. We should be using immigration laws to deal with immigration issues, and migrants are not posing any greater risk of spreading covid than the hundreds of thousands of people who are entering the U.S. at lawful ports of entry every single day. The Administration didn’t do that. And why it didn’t is, of course, hotly debated. Some would say—as you did—that this was cynical. There are others who say this is a matter of balancing various options, none of which were particularly great. I don’t have an inside view of what decisions were being made in the Oval Office around Title 42. But I will note that Title 42 was actually not under White House authority—it’s under C.D.C. authority. Everybody blamed Department of Homeland Security Secretary Alejandro Mayorkas for it. He had nothing to do with it. It was the C.D.C.’s decision at the end of the day, not D.H.S.’s or the White House’s. But setting all that technical stuff aside, the Biden Administration should have immediately surged resources to the ports of entry, restarted and reopened them, stood up more soft-sided temporary processing centers to avoid this overcrowding issue, and focussed resources on the back-end adjudication system. We have spent the past decade pouring money into the border-security apparatus in an effort to deter asylum seekers. It hasn’t worked because we’ve spent all of that money on border security and we’ve spent almost none on actually building a functional and working humanitarian-protection system on the back end. And now we’ve got a two-million-case backlog, more than six hundred thousand asylum applications with U.S. Citizenship and Immigration Services, and three million people on ice’s non-detained docket. This is not something that you’re going to be able to fix overnight. About the only thing the Biden Administration and Congress could do right now is just declare immigration bankruptcy and start all over again, and have amnesty, but there isn’t the political will for that right now, unfortunately. It seems that Title 42 is going to come to an end in May. The court cases about it, which have been kicking around for a long time now, will likely be moot. What is Biden’s new policy? How is it different from Title 42 and what do you think of it? The new policy is a version of a Trump policy that was known as the asylum transit ban, which went into effect in 2019 and then was halted by court order in 2020. The transit ban under Trump applied to about a hundred per cent of people who were crossing the border, and said that, if you had not applied for asylum in Mexico or in any other country that you passed through on your way to the United States, you were ineligible for asylum, and you could be more rapidly deported. The Biden Administration’s plan is basically a transit ban light. They say that this program will apply to a smaller group of people and are offering more alternatives for people to avoid having this ban apply to them. For example, under the Trump version, even individuals who went through ports of entry, who did what even D.H.S. Secretary Kirstjen Nielsen said was the “right way to seek asylum,” were subject to the ban. Under the Biden Administration’s plan, you can use the C.B.P. app to schedule an appointment at a port of entry, and if you go through that process, then you are not subject to this new asylum transit ban. You can seek asylum as normal. ADVERTISEMENT This has created essentially an asylum Ticketmaster, because there are far more people seeking appointments than there are appointments. People are starting to turn to bots to get appointments to start the asylum process, just like people used auto-clickers and bots to get tickets for the Taylor Swift tour. Unfortunately, as much as the Biden Administration has touted this policy, it’s really unclear if it’s going to work, especially if it becomes obvious to everybody that the demand vastly outstrips the supply. But, broadly speaking, this new asylum policy is different from Title 42 because it requires people to go through what's known as the “credible fear” process, which at least gives them an opportunity to seek protection in a way that Title 42 did not. Is there anything good about this policy? I don’t have any praise for the new policy, because it’s an asylum restriction. Now, that’s not to say that I don’t think the Biden Administration is doing anything right. They have created new parole programs, especially for Cubans, Nicaraguans, and Venezuelans, allowing them to come here far more easily than in the past as a way to channel people to alternate legal pathways to the United States. Similarly, while the app doesn’t seem like it’s ready for prime time, it may be a good way to deal with this in the future after all of the kinks are worked out. The Biden Administration wants to put in place something that will let them deport people more quickly once Title 42 ends rather than, in my opinion, doing what they should be doing, which is making sure we have a functional humanitarian-protection system. I understand that they feel they have to do something, and there is, of course, a need for Congress to step in here and give them the resources, but cracking down on asylum seekers is the wrong approach. Congress and the Administration are at fault for dilly-dallying over fixes to the programs that they know are broken and have been broken for years. You have come back multiple times to the idea that the immigration infrastructure is broken, that it needs to be expanded and modernized and rethought and reimagined so that the U.S. can do what it should do, which is welcome more immigrants to this country. Did I phrase that accurately, basically? Yeah. And a functional humanitarian-protection system is not anti-law enforcement. Given that there’s no big bill on immigration that seems able to pass either branch of Congress, do you think that there is any danger in loosening restrictions and making it easier to come here and register for asylum?Without making the broader fixes, would that overwhelm the system? There aren’t easy solutions to any of this. It’s a complicated question that has bedevilled multiple Presidential Administrations in a row, though I think that this Administration is at least acknowledging that there should be an asylum system in a way that the previous Administration did not. I always come back to it not being the fault of the people fleeing persecution or terrible situations in home countries that our system isn’t working. It’s our fault for not addressing this problem before it got out of hand. You can’t go back in time, but, in 2014, when families started arriving at the U.S.-Mexico border in large numbers for the first time, zero new immigration judges were hired. In 2013, the Tea Party had negotiated the budget sequester and all federal hiring at the immigration courts was essentially halted. And, in fact, the over-all number of immigration judges in 2014 went down because Congress was having these fights over the budget and didn’t want to fix the system. If we had spent even a fraction of the money that was spent on a border wall, or hiring new agents, or what have you, during the last eight to nine years, would we be in a situation where there are five-year delays for people to get their asylum claims? The answer is, I don’t think so. I think we would be in a much better situation, with a system that functions a lot more effectively. So, yeah, more people in the system will inevitably cause more delays, but the solution has to be to find ways to fix those delays rather than stopping people from accessing the system in the first place. ♦ For more information, visit us at http://www.beverlyhillsimmigrationlaw.com/index.html.