Democrats agree Biden had to act on immigration – but they’re split over his asylum order

Democratic mayors, governors and members of Congress from the south-west to the north-east stood beside Joe Biden at the White House, when he unveiled an executive order temporarily sealing the US-Mexico border to most asylum seekers – the most restrictive immigration policy of his presidency. “We must face a simple truth,” the US president said. “To protect America as a land that welcomes immigrants, we must first secure the border and secure it now.” Those around him agreed, applauding the directive as a welcome, if belated, step. Yet for many Democrats not in attendance, the moment marked an astonishing retreat from just four years ago, when the president campaigned on dismantling the incendiary immigration policies of Donald Trump. Most Democrats accept that Biden had to do something to address an issue that has become one of his biggest political vulnerabilities. But the party, once united in furious opposition to Trump’s asylum clampdown, now finds itself divided over his course of action, split on both the substance of the policy and the wisdom of its politics. *** Biden is once again campaigning for the presidency against Trump, but the political climate has changed demonstrably. Unprecedented levels of migration at the south-west border, fueled by poverty, political upheaval, climate change and violence and amplified by incendiary Republican rhetoric, have rattled Americans. Polls show border security is a top – sometimes the top – concern among US voters this election season. The action, designed to deter illegal border crossings, was an attempt by the Biden administration to confront those concerns. But it also invited unwelcome comparisons to his predecessor, whose policies he was accused of “reviving” in a legal challenge brought last week by the American Civil Liberties Union. “It violates fundamental American values of who we say we are – and puts people in danger,” said Vanessa Cárdenas, the executive director of America’s Voice, an immigration advocacy organization. “It’s part of a trap that the Democrats are falling into – they’re buying the narrative the right is pushing on immigration.” For three years, Republicans have accused Biden of ignoring mounting concern over the south-west border, which they falsely claim is under “invasion”. But as the humanitarian situation has worsened, he has also been confronted by criticism from Democratic mayors and governors pleading for more federal help managing the record number of people arriving in their cities and states, especially during peaks in 2022 and 2023. Biden moved to act unilaterally after Republicans blocked – at Trump’s behest – an attempt to pass a bipartisan bill to restrict asylum. Congress also rejected a multibillion-dollar budget request from the White House for additional resources to manage the situation, raising questions about how authorities will enforce the new rule. Supporters of Biden’s latest policy, including border-state and swing-state Democrats, say the action will deter illegal immigration by encouraging people to seek asylum in an “orderly” manner at legal ports of entry. Even if the rule is blocked by the courts, they are ready to make the case to voters that Biden took decisive action when Republicans would not. “We all want order at the border,” said the New York representative Tom Suozzi, a Democrat who flipped a House seat in a special election earlier this year after campaigning on more border security. “The American people want us to deal with immigration.” But progressives, immigration-rights advocates and some Hispanic leaders say that the new order not only suspends longstanding guarantees that anyone who reaches US soil has the right to seek asylum, it undermines American values. The president’s embrace of punitive policies, they argue, risks losing the support of key parts of his coalition. Biden knew the order would infuriate corners of his party – he addressed them directly in his White House remarks earlier this month, saying the goodwill of the American people was “wearing thin”. “Doing nothing is not an option,” he said. “We have to act.” But advocates and progressives say he can do more to protect undocumented immigrants who have lived in the country for decades, some for nearly their entire lives. They are urging Biden to use his bully pulpit to move the immigration fight beyond the border by using his presidential authority to shield more immigrants from deportation and create avenues for them to work legally. The White House is reportedly considering a future action that would protect undocumented spouses of American citizens from deportation. Last week the Biden campaign released a new ad marking the 12th anniversary of Daca – the Deferred Action for Childhood Arrivals program established by the Obama White House in 2012 – as the Democrat runs for re-election and looks for ways to shore up support from Latino voters. The program provides temporary work permits and reprieves from deportation for hundreds of thousands of Dreamers, people brought without permission to the US as children. In the “Spanglish” ad, Dreamers tout a recent move by the Biden administration to extend healthcare coverage to Daca recipients while warning that Trump has threatened to end the program. “Ultimately, Congress needs to act to reform our immigration system,” Cárdenas said. “But until then, we need Biden doing everything he can to show that he still believes what he promised he would do when he came into office.” *** Biden’s policy, which took effect immediately, seeks to deter illegal immigration by temporarily blocking people who cross the US border outside lawful ports of entry from claiming asylum, with some exceptions. The order lifts when daily arrests for illegal crossing from Mexico fall to 1,500 a day across a seven-day average. The last time crossings fell below that threshold was in 2020, when the Covid-19 pandemic halted migration. The number of illegal border crossings has fallen in recent months, due in part to stepped-up Mexican enforcement and seasonal trends. But officials say the level is still elevated, and worry the trend could reverse as the weather cools and a new Mexican president takes power weeks before the November election. Despite its failure, the bipartisan border security deal, negotiated with the blessing of the White House, underscored just how far to the right the immigration debate in Washington has shifted. The legislation included a wishlist of Republican border security demands aimed at keeping people out. Absent were any long-sought Democratic aspirations of expanding pathways to citizenship and work visas for the millions of undocumented people living in the US. Instead, Democrats tied the border deal to a foreign aid package opposed by conservatives. “That changed the contours of what had been a widely understood immigration framework,” said Theresa Cardinal Brown, immigration policy director at the Bipartisan Policy Center, adding: “I’m not sure what the consensus or compromise border solution is any more.” On the campaign trail, Democrats hope to capitalize on Republican resistance to the border deal by casting Trump as unserious about addressing illegal immigration at the border, his signature issue. But it may prove difficult for Biden to make inroads on what has long been one of the country’s most polarizing political issues. Polls consistently show deep public disapproval of how Biden has handled the border, with voters giving Trump, who has also faced sharp criticism for his immigration plans, a wide advantage. A CBS News poll found broad public support for the president’s executive order, including among Republicans, but they also believed illegal border crossings were more likely to fall under Trump than Biden. And a new Monmouth University poll last week found Biden’s standing practically unchanged by the action, with roughly half of Americans – 46% – saying it did not go far enough, compared with 31% who said it was about right. Just 17% said the order went too far. On Wednesday, a coalition of immigrant-advocacy groups led by the ACLU sued the Biden administration over the directive. “By enacting an asylum ban that is legally indistinguishable from the Trump ban we successfully blocked, we were left with no choice but to file this lawsuit,” said Lee Gelernt, an attorney for the ACLU. The administration anticipated legal challenges. “We stand by the legality of what we have done,” the secretary of homeland security, Alejandro Mayorkas, said in a Sunday interview with ABC, adding that he would have preferred for Congress to act. Last week, a group of 18 progressive members of Congress sent a letter to Mayorkas asking the administration to reconsider the asylum rule on the grounds that it “puts asylum seekers at grave risk of unlawful removal and return to harm”. Despite their disappointment, Biden’s Democratic critics say Trump – who has said undocumented immigrants “poison the blood of our country” and is planning a sweeping mass-deportation campaign in a potential second term – would be far more dangerous. “The more American voters focus on the anti-immigrant, extremist policies that the right is pushing, the more they’re going to reject that vision,” Cárdenas said. But, she added: “Americans want to know, what’s the plan? What’s the strategy? What’s the vision? And I think it will serve Biden and Democrats better if they have an answer to the question of what it is they are for.” For more information, visit us at https://www.beverlyhillsimmigrationlaw.com/.