During the final presidential debate last fall, Donald Trump touted what he considered his biggest immigration accomplishment. "We got rid of catch and release," he boasted. Joe Biden could have easily let the wonky phrase slide past him, focusing on poll-tested attacks of Trump's policy of punitively separating immigrant families at the border. But in a move that undoubtedly stunned the consultants who had carefully coached him on messaging, Biden took the bait.
The former vice president launched into an extended defense of "catch and release"—a policy of allowing vetted asylum seekers to remain at liberty in the U.S. while awaiting a hearing, rather than languishing in jail at the border. He even counterattacked, explaining that Trump had made the situation worse by forcing families to wait in Mexico. "They're sitting in squalor on the other side of the river," he said passionately.
This highly unexpected exchange was Biden's final pitch to Americans on immigration, and it was the culmination of 18 months in which Biden adopted the opposite position from Trump on nearly every immigration issue. But putting out a position paper for journalists is one thing. Volunteering a defense of a controversial policy on a national debate stage with the presidency at stake is another. It was as clear a statement as you could get: Here was a candidate who was ready to reopen the country to immigrants, especially to asylum seekers and legal applicants.
Or at least, that's what Biden was saying in 2020.
Biden has been in politics long enough to have been on every side of practically every immigration debate. In the 1970s, he was reticent about paying to evacuate and resettle South Vietnamese anti-communist refugees. But by 1980, he was a leading proponent of the Refugee Act, which led to a massive increase in refugee resettlement from Vietnam and around the world.
In 1986, Biden voted to legalize 3 million unauthorized immigrants. In 1996, he voted for the harshest crackdown on unauthorized immigrants in U.S. history. In 2006, he voted to build a fence along the southern border. In 2020, he campaigned to end funding for Trump's border wall.
Biden is the Democratic Party's rusty weathervane, and in 2020 he was following the prevailing winds. Not only did a supermajority of Democrats favor legalizing immigrants in the country illegally, Gallup also found that for the first time in its 65 years of asking the question most Democrats wanted to increase legal immigration from abroad. They even wanted more refugees and more asylum seekers.
Biden campaigned accordingly. His platform was probably as pro-immigrant as any winning candidate since Lincoln. No category of immigration wouldn't see a bump on his watch, he promised, and all of Trump's "shameful" policies would immediately end. He promised to send a comprehensive immigration bill to Congress on day one. He would accomplish what all Democratic presidents before him had failed to deliver: real change.
During Trump's four years in office, America saw more families, unaccompanied children, and other immigrants travel up through Mexico to cross the U.S. border than during all eight years under Obama combined. The vast majority came to request asylum, a legal status for those fleeing violent persecution in their home countries. They arrived primarily from Central America's Northern Triangle—Guatemala, Honduras, and El Salvador—but also from Cuba, India, Africa, and dozens of other places.
Stopping this flow became the focus of Trump's immigration policy. Asylum seekers' first choice would be to apply at one of the ports of entry where hundreds of thousands of visitors cross from Mexico to the United States each day since U.S. law explicitly allows anyone arriving in the United States to apply for asylum. But in 2018, the Department of Homeland Security (DHS) blockaded the legal crossings, stationing agents at the exact border line to push anyone who said they wished to apply for asylum back into Mexico. The policy (dubbed metering) allowed agents to accept only a token number to cross each day, but the goal was to deter people from coming at all.
Unable to reach family and jobs arranged north of the border, even immigrant families who arrived with a game plan suddenly faced homelessness, hunger, and crime in dangerous neighborhoods within eyeshot of U.S. inspectors. New York Times reporters described the "grim sight" of destitute families sleeping on pizza boxes in the doorways of public restrooms, surrounded by piles of donations of diapers and baby formula.
Human Rights First, a watchdog group, maintains a database on crimes committed against migrants who have been forced to wait in Mexico. As of December 2020, it contained 1,314 crimes since 2018, including assaults, rapes, and murders, against migrants blocked by U.S. agents. Jasson Ricardo Acuna Polanco and Jorge Alexander Ruiz Duban—two Honduran teenagers—were stabbed and choked to death by thieves in December 2018 while waiting to cross after port inspectors sent them away.
These dangers inevitably lead many immigrants to cross around the ports of entry. Pre-Trump, those who crossed illegally and requested asylum would be held in temporary Border Patrol facilities and transferred to Immigration and Customs Enforcement (ICE) detention centers. Asylum officers would interview them to determine if they had a "credible" claim, evaluating whether their claims matched the legal requirements of the law, were internally consistent, and matched other known facts or evidence. If they failed to meet that threshold or had committed any serious crimes, they were placed on the next ICE plane home. If they did, they were usually released to await a final asylum hearing many months from then.
After briefly trying a policy of separating undocumented parents from their children, Trump officials settled on a more politically palatable backup for deterring comers: If immigrants fear being in Mexico so much that they'll risk crossing illegally and being arrested, why not send them back to Mexico to await their hearings? Given the dangers, they figured, people will abandon their applications and go home.
A "remain-in-Mexico" policy bearing the Orwellian name "Migrant Protection Protocols" (MPP) was born. It had an immediate effect.
Gangs murdered a Salvadoran man in Tijuana in December 2019 after DHS agents kicked him out of the United States to await his hearing in Mexico. Several dozen rapes of MPPers were reported to U.S. and Mexican authorities, including one that involved Mexican police. And as Trump hoped, many asylum seekers gave up, and nearly all of the 11,000 cases that reached a final resolution ended with orders of removal in absentia. But many continued to wait.
By March 2020, almost 70,000 asylum seekers had been dumped back into Mexico's border cities, and the number of crossings had fallen significantly. Nonetheless, when the COVID-19 pandemic hit, Trump's White House seized on the crisis to act. It forced the Centers for Disease Control and Prevention (CDC) to overrule its senior medical staff and declare that it was medically justified to suspend the crossings of all undocumented migrants. The DHS then used this declaration to "expel" anyone from the United States who crossed the border from Mexico, to completely shut off even the token numbers admitted at ports under metering, and to suspend MPP hearings, so anyone already waiting in Mexico was just stuck.
These moves were a deathblow to America's asylum system. The U.S. government has now expelled hundreds of thousands of crossers. Usually it simply drops them back in Mexico. But the DHS is actually flying political dissidents back to Nicaragua, where there have been reports that the government is arresting and beating them.
In the debate, Trump understated his accomplishment. He didn't just get rid of catch and release. He got rid of asylum altogether.
Biden is intimately aware of this humanitarian disaster. Not only did he decry it in the debates, but he lamented in an October 2020 speech the nearly 10,000 Cubans "languishing in tent camps along the border." He guaranteed he would end the MPP on his first day in office. In a July 2020 piece for The Washington Post, future first lady Jill Biden issued a plea to bring the asylum seekers in Mexico back to the United States, arguing that America's identity was "on the ballot" in November.
The position was so clearly stated that migrants encamped at the border celebrated when Biden won. "This is not only a Biden victory. We migrants also won, and we are very happy," one asylum seeker in Mexico told BuzzFeed News in November. "Seeing Trump once again sit on his throne would have been fatal for us."
Trump may not be back on his "throne," but the king's policies outlived him.
In December, Biden's choice for Domestic Policy Council director, Susan Rice, told Spanish-language TV that no one should "believe those in the region peddling the idea that the border will suddenly be fully open to process everyone on day one. It will not." At the time, it seemed strange that she would call her boss's campaign promises "peddling an idea," but Biden himself soon provided clarity.
"It will get done," Biden told reporters. "But it's not going to be able to be done on day one." During the campaign, Biden enthusiastically promised to welcome more asylum seekers, but now he characterizes the arrival of more applicants at the border as a "crisis" that would "complicate what we're trying to do." Biden might as well have been quoting Trump, who had constantly used the same specter of a "crisis" to eliminate asylum and impose other restrictions throughout his term.
In January, Biden signed his first immigration executive orders. He required a review of the country's current asylum policies, but the CDC's health declaration and the expulsion policy that came with it would persist. He attempted to freeze most new deportations of noncriminals, but not for recent border crossers and asylum seekers.
While ports remained completely closed to asylum applicants, advisers quietly leaked to reporters that they planned to include Trump's metering policy as part of Biden's grand plan to fix asylum after they reopened. When Biden called for "guardrails" for the asylum system in December after the election, those same advisers explained what he really meant were "limits being set on the number of people allowed through." Never mind that Congress never approved any caps on asylum.
Biden's DHS did exempt unaccompanied children from the immediate expulsion policy, so they are now transferred to shelters, foster care, or family members who are already in the United States. Mexico has started to refuse to accept some expulsions of non-Central American immigrants in certain places, so a few families who crossed to request asylum are now being released from custody into the United States to await hearings rather than immediately expelled.
Biden has announced a plan to slowly begin to let MPP participants wait for their hearings on U.S. soil. But the tentative plan—letting in a trickle of about 600 additional asylum seekers per day only after advanced screening and negative COVID-19 tests—stands in marked contrast to the bold policies proposed by candidate Biden in 2020. In June 2019, before MPP and the CDC expulsion policies, DHS encountered and processed more than 4,600 undocumented immigrants per day at or between the ports along the border.
In 2021, Biden has so far chosen to move slowly. Overall, his border policies resemble a slightly less strict version of Trump's policies. As White House Press Secretary Jen Psaki told reporters in February, "The vast majority of people will be turned away."
What about legal immigration? During his 2019 State of the Union address, Trump told the nation that he wanted people to come here legally "in the largest numbers ever." Ironically, it would be the third straight year that legal immigration declined.
At first, Trump reduced the flow of legal immigration using a thousand little cuts. One of his first acts was "extreme vetting," which involved banning migrants from several majority-Muslim countries and massively increasing the length and complexity of the required immigration paperwork. In the name of "security," the new forms asked vague gotcha questions that often necessitated the involvement of an attorney, increasing the costs to obtain visas.
The State Department and DHS came out with new "public charge" rules that effectively created a presumption against approving immigrants with incomes below a certain threshold. In theory, the idea was to keep out immigrants who might use welfare at some point in the future, even though DHS's own statistics showed that most noncitizens near or below the poverty line received no welfare of any kind. Regardless, the rules are creating huge problems for all immigrants. These complicated data requirements force applicants to produce financial records and documentation on an almost unimaginable scale, requesting information that many immigrants don't even possess. Inability to produce the evidence results in a denial.
As soon as Trump took office, word came down that as many people as possible should be rejected, and denials spiked. DHS even started denying anyone who left anything on an application blank—including current addresses for deceased parents. Denials of U.S. citizens petitioning for family members or employees to receive immigrant visas and green cards doubled. And even if the family member's or employer's petition was approved, immigrants were twice as likely as they had been to be denied a visa by the consulates.
The number of new legal permanent residents entering from abroad was down by about a quarter by the end of 2019. Then the bottom fell out.
When the pandemic struck the United States, the State Department closed its consulates, meaning that it could issue virtually no new visas. Trump also added country-specific travel bans for almost anyone coming from China, Iran, Europe, or Brazil who wasn't a U.S. citizen. In April and June 2020, he issued proclamations suspending visas for almost all immigrants and guest workers—bans that have been extended until March 31, 2021.
These visa bans were not based on a concern about spreading COVID-19. Instead, Trump called new immigrants and guest workers a "threat" to the U.S. labor market. Never mind that the unemployment rate for the highest-skilled computer occupations, which dominate the employment-based visa system, barely budged despite the pandemic. And never mind that low-skilled jobs for guest workers have to be offered to U.S. workers before someone can be hired from abroad. That the ban applied even to little children and retirees gives insight into its real goal: fewer foreigners of all kinds.
Immigration plunged by about 90 percent—greater than any full year on record. In January, Trump extended the protectionist visa bans and left office with one of the lowest per-capita legal immigration rates in U.S. history.
The immigration plan that Biden released before the pandemic was designed to weave its way through America's complex legal immigration system, concluding at each juncture that more was better. More family reunification. More high-skilled visas. More seasonal workers. More refugees. More visas for participants in the diversity visa lottery program, which permits some immigration for nationalities that normally receive few visas under the family- and employer-sponsored system. He even wanted to create a new community-sponsored visa program to deal with "shrinking populations, an erosion of economic opportunity, and local businesses that face unique challenges."
Biden rarely hedged. His proposal outlined the most ambitious and expansive legal immigration strategy of any winning presidential candidate in at least 150 years. When the pandemic hit, and then when he won the nomination, commentators predicted a move to the middle that never came. Biden stuck by his plan. He called Trump's protectionist visa bans a distraction from dealing with COVID-19. "Immigrants help grow our economy and create jobs," he tweeted. "The President can't scapegoat his way out of this crisis."
Biden had even criticized Trump's decision to enact country bans supposedly to stop the spread of the virus. "Banning all travel from Europe—or any other part of the world—will not stop it," Biden tweeted in March 2020. Biden's view reflected the reasoned judgment of the academic literature on travel restrictions, and Trump's bans ultimately did not keep the pandemic away.
Yet five days into office, Biden underwent an unexplained 180. He extended travel bans on most noncitizens coming from Brazil and Europe, even though Trump had set them to expire the very next day, and expanded the ban to include South Africa. For the hundreds of thousands of legal immigrants awaiting visas abroad, it was a foreboding signal.
When Biden signed an executive order on February 2 that included in the title "Restoring Faith in Our Legal Immigration Systems," hope surged that the new president would at least rescind Trump's visa bans on families and workers, reopen the consulates, and restart the legal immigration process in other countries. In the end, however, the order did little more than require agencies to review their current policies.
In February, America's largest trade and business associations wrote a public letter urging an end to the visa ban, detailing how it was separating families and harming their operations. Still, Biden remained silent. Meanwhile, his Justice Department has gone to court to defend his authority to keep the ban in place, even arguing that family separation doesn't necessarily constitute "irreparable harm" to U.S. citizens and their immigrant family members.
The visa bans are set to expire on March 31, but even if they do, administration officials have shown little willingness to reopen consulates and begin issuing visas again. Each day that passes, the backlog of hundreds of thousands of immigrants grows. Because the law limits the number of visas issued in a fiscal year, many of the visas they would have received will be lost if they aren't issued by September.
The only positive development on legal immigration is that Biden increased the refugee cap, albeit to a lower number than he initially promised. But his unwillingness to streamline Trump- and Bush-era "extreme vetting" means that the cap will likely not be filled this year anyway.
Democrats have unified control of Congress, the body that ultimately decides what the laws will be. Well, that's the grade-school theory anyway, and to his credit, Biden has attempted to follow it. On day one, he sent his requirements for a bill to Congress.
While it was not as sweeping as his campaign plan, it was still broad and included a path to citizenship for almost all 11 million unauthorized immigrants and more green cards for workers and families. Congressional Democrats threw together a bill in a month that met its requirements, but even they acknowledged the bill has little hope in the Senate, where Republicans and perhaps even some moderate Democrats oppose it. No effort was made to obtain bipartisan support for it.
Instead, Biden's party is focusing on a few narrow bills that it believes have crossover appeal: legalizations for Dreamers, farmworkers, and participants in the Temporary Protected Status program for those undocumented immigrants who have been granted temporary safety from instability at home.
What Biden will give up to get these discrete bills to his desk remains unclear. His immigration bill includes no new enforcement measures that would appease the GOP, and he hasn't so far been willing to mix immigration into negotiations over his other top priorities: the COVID-19 response and economic relief.
That's not new. Presidents Obama and Trump both campaigned promising immigration changes. Both had the advantage of a friendly Congress. But neither wanted immigration reforms to upset prospects for their other major priorities.
The stalemate leaves the executive branch as the most likely place for change. The Biden administration does have some ability to change policy without congressional involvement. But hopeful immigrants and employers would be wise to remember how conservative Biden has shown himself to be.
Biden personally understands immigration policy better than almost any president in history. For decades he has played a crucial role in making it, both during his time as a senator and during his time as vice president. This understanding is certainly an asset for good governance. Unfortunately, it also probably also makes him too committed to the current system to take the drastic actions that would be needed to make that system work better. He's also beholden to a complex interwoven system of partisan priorities that could cause him to turn his back on immigration—or enthusiastically embrace it—later in his presidency, depending on what else is going on.
Many advocates were hopeful that the wave of outrage against Trump's abuses would translate into more than just a reversal of those policies. He could streamline or remove onerous regulations and interpret ambiguous laws in the favor of approving applicants, rather than denying them. Maybe these things will happen eventually. The end of the pandemic will undoubtedly help. But so far, the Biden administration seems to have little appetite to wield the powers of the executive on behalf of immigrants as aggressively as Trump did against them.
Immigration law is a complicated, inhumane mess. But Congress has given the president vast authority to interpret and implement the law in simple and humane ways. Biden currently seems reluctant to use it, whether out of shortsighted political calculation or a lack of genuine belief in the goal.
But that's 2021 Biden. Who can predict what 2022 Biden will do, or any of the Bidens who will come after him.
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