Immigration

Biden Keeps Another Trump Border Policy in Place

Title 42 prevents migrants from legally seeking asylum in the United States.

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Though President Joe Biden is coming up on 150 days in office, many of the promises he made on the campaign trail have fallen flat. They came as part of his case against former President Donald Trump, which hinged in large part on crafting an immigration system that looked nothing like the one Trump presided over. But for many migrants coming to the Southwest border, the situation is little changed under Biden.

Biden has continued much of the Trump administration's approach to immigration: separating families, overfilling detention facilities, and plainly telling people to stay away. One such holdover policy is Title 42.

Invoked by Trump in March 2020, Title 42 is a section of the Public Health Service Act that grants federal health officials broad discretion to enact disease mitigation measures. The Centers for Disease Control and Prevention (CDC) used it to issue an order barring certain kinds of arrivals to the U.S. borders with Mexico and Canada while permitting other forms of international movement to continue. It allows Customs and Border Patrol (CBP) officials to expel migrants immediately upon arrival.

In practice, the measure almost exclusively applies to asylum seekers arriving at the Southwest border. Between March and September 2020, for instance, the Southwest border saw 197,043 Title 42 expulsions compared to just 328 at the Canadian border. In total, CBP has carried out over 640,000 Title 42 expulsions in one year of the order's application.

That all flies in the face of legal protections for migrants. According to David J. Bier, an immigration expert at the Cato Institute, it's a massive disruption of U.S. asylum law, "which guarantees [migrants] the right to apply at any port of entry." Presentation at a port of entry or on U.S. soil is a necessary component of the asylum-seeking process. Bier says it's imperative that the Biden administration "afford asylum seekers every opportunity to make their claims" and "reopen ports of entry to allow asylum seekers to apply there."

That's all impossible under Title 42, though. Danilo Zak, senior policy and advocacy associate for the National Immigration Forum, notes that vulnerable migrants have been harmed by Title 42's blanket approach to expulsions. "Even if an individual or family can provide evidence that they have been specifically persecuted and face a real risk of further persecution or death should they be returned to their home countries," he says, they are expelled regardless.

Zak identifies several serious legal issues at the heart of Title 42. In addition to its conflict with U.S. asylum law, the Refugee Act of 1980 also "makes it very clear that arriving migrants seeking asylum must be allowed to make their case for protection." Even so, "the Trump administration and now the Biden administration appear to believe that Title 42 allows us to disregard those asylum laws," Zak says.

They supposedly did so in the name of public health, but the medical basis for Title 42 has long been questionable. Many studies and experts have cast doubt on the efficacy of closing borders to limit the spread of COVID-19. In early March 2020, Martin Cetron, who leads the CDC's Division of Migration and Quarantine, refused to support the measure due to its flimsy public health basis. Only after White House and CBP officials strong-armed the CDC into complying was Title 42 put into practice.

The policy is a relic of an administration that actively sought to limit immigration. Olivia Troye, a former aide to Vice President Mike Pence, called it "a Stephen Miller special" after resigning in protest of the policy. Miller was the adviser behind many of the Trump administration's most heinous immigration policies, including the "zero tolerance" policy, which separated children from migrant parents in an attempt to deter arrivals.

Migrants expelled from the U.S. under Title 42 face hostile conditions similar to those subjected to another Trump policy, the Migrant Protection Protocols (MPP). Known as "Remain in Mexico," MPP relegated asylum seekers south of the border while they awaited decisions in their immigration cases. There, many faced murder, rape, and torture. Biden did away with the policy just weeks ago, but his continued operation of Title 42 contradicts his campaign promise to "restore our asylum laws so that they do what they should be designed to do."

Those dangers to migrants continue under Biden. "These individuals are being pushed back into very dangerous environments in northern Mexico," says Zak. "Migrants are at very serious risk of being exploited by gangs and traffickers." He adds that "Human Rights First has documented 492 instances of publicly reported attacks and kidnappings against asylum seekers in Mexico since Biden took office," many against those expelled under Title 42.

In spite of this harsh approach, Title 42 has likely exacerbated the very issue it sought to tackle: the high volume of asylum seekers crossing the border. Zak says that the recidivism rate—individuals who were apprehended, expelled, and apprehended again by CBP—has "skyrocketed." That rate "tended to hover around 10 percent" prior to Title 42 and has hit 38 percent as of May 2021. Zak says this is partially because "individuals (particularly single adults) are expelled extremely quickly," thus encouraging multiple crossings. There is also no formal penalty for repeat crossings under Title 42. With that uptick in mind, the reasons for increased apprehensions at the border become clearer—and Biden's approach to immigration less so.

No border policy "will appease both sides," says Bier, but there are ways to reinstate (and reform) the asylum-seeking process. For one, Bier says that the U.S. government should broaden the asylum statute, which currently excludes many types of persecution from warranting protection. He notes that family case management, which assigned case managers to migrant families and achieved a 99 percent compliance rate with immigration court requirements during its tenure, "could be a way to help maintain awareness of cases as they proceed through the courts." Getting immigrants access to legal counsel is "the most important thing."

The Biden administration has not yet taken those kinds of action. Recently, it quietly asked six humanitarian groups to recommend which migrants should be allowed to skate expulsion, though the criteria for their recommendations have not yet been made public. That approach has led to a modest number of asylum seeker admissions since early June. "It is better than not allowing anyone to enter," says Bier, "but it is far worse than honoring U.S. asylum law."

The Trump administration used the pandemic to justify immigration restrictions already within officials' interests. Understandable enough. Why the Biden administration is keeping Title 42 on the books is less clear. Its public health basis is poor, it contradicts long-standing U.S. asylum law, and it puts already vulnerable migrants at further risk. Any administration committed to "following the science" and "ending Trump's detrimental asylum policies" should not be upholding Title 42.

NEXT: Don’t Be Surprised When Stupid Laws Are Maintained With Force

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78 responses to “Biden Keeps Another Trump Border Policy in Place

  1. Sounds like they started reading the internal polling again.

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    2. Biden certainly has lofty ambitions for the Jobs Plan. A White House fact sheet on the proposal declares it will, among other things, ” more detail open this link…….VISIT HERE.

    3. As for the policy of telling people to stay away, that’s where you end up when 100% of the Democratic field raises their hand to the question “Raise your hand if illegal immigrants get free healthcare in your administration”.more detail open this link…….VISIT HERE.

  2. Biden has continued much of the Trump administration’s approach to immigration: separating families, overfilling detention facilities, and plainly telling people to stay away. One such holdover policy is Title 42.

    One of those is a long standing policy, the other wasn’t a policy, it was a result of being flooded with immigrants and, for many reasons (perfectly reasonable to criticize) the border facilities didn’t have the capacity to deal with them.

    As for the policy of telling people to stay away, that’s where you end up when 100% of the Democratic field raises their hand to the question “Raise your hand if illegal immigrants get free healthcare in your administration”.

    Again, if we want to go back to the Ellis Island days where throngs of immigrants come into the country, put their ‘X’ on the dotted line and then they’re told, “Go with God, good luck finding work” I think that’s something we can talk about.

    1. put their ‘X’ on the dotted line and then they’re told, “Go with God, good luck finding work” I think that’s something we can talk about.

      Oh, and by the by, even this is not necessarily an unalloyed “good thing”. That’s why you had wrenching poverty in immigrant neighborhoods– the flood of work-seekers essentially lowered wages– and often couldn’t find work at all, leading to horrid conditions. When you flood a market with low-cost, desperate labor, the price of that labor goes down, and if you keep flooding it, the price can go to zero.

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      2. “When you flood a market with low-cost, desperate labor, the price of that labor goes down, and if you keep flooding it, the price can go to zero.”

        Reason/ “And the problem is?” /Reason.

        1. Any time you hear the words “cheap labor”, rest assured your descendants will be paying for it in perpetuity.

    2. Believe reason has advocated against the requirements to not become a public charge.

    3. Inconvenient fact.

      Thousands of people were forced into quarantine or outright rejected at Ellis Island for a myriad of diseases, most notably tuberculosis.

      We screened immigrants better in the early 1900s than now.

  3. Migrants are not asylum seekers. Migrants aren’t fleeing some notional “persecution,” they’re just here for our goodies. Stop conflating the two, no matter how much you think you need another gardener.

    1. You must be really fucking ignorant to not know what’s going on in many central American countries. But hey- look where I’m saying this.

      1. Yes. Youre ignorant. Economic migration is not a covered part of asylum. Neither is general crime.

      2. I’m a small business owner. I earn ~$78,000 a year. I let my medical insurance lapse because I was in good health and felt it was too expensive.

        This year, I was diagnosed with cancer. If I arrive at Canada’s border hoping to take advantage of their free healthcare, demanding that my immigration status be ‘fast tracked’, am I an “asylum seeker”? If not, why not.

        1. “If I arrive at Canada’s border hoping to take advantage of their free healthcare, demanding that my immigration status be ‘fast tracked’, am I an “asylum seeker”?”

          Are you asking cytotoxic? Then the essential question is, “Was the United States (deservedly) bombing the shit out of you?” If so, come on in! We’ve plenty for everyone! (Unless you were born here.)

          Bombs while you’re there; green cards if you make it here. Easy-peasy.

          If you were diagnosed with cancer, that’s awful, Paul. It’s always the good ones, seemingly. I wish you well, and that you beat this.

          1. If you were diagnosed with cancer, that’s awful, Paul. It’s always the good ones, seemingly. I wish you well, and that you beat this.

            I have not been. i was creating a scenario for discussion. I do not want to alarm anyone or try to draw in sympathy under false pretenses.

            I’m trying to understand where “refugee/asylum seeker” can be separated from “economic migrant”. Everyone tacitly agrees that there is a difference, but some people are unable to separate them, essentially declaring anyone that shows up at the border a “refugee/asylum seeker”.

            As one great thinkers on this subject said (and this was in regards to Europe) in response to a pro-immigration MP essentially publicly admitting that 60% of the people streaming into Europe during the height of the 2015 crisis had “no right to be there”:

            We should create definitions for refugee and economic migrant, and then hold onto those definitions as tightly as we can.

            1. I have not been. i was creating a scenario for discussion. I do not want to alarm anyone or try to draw in sympathy under false pretenses.

              Jesus Christ! I can’t figure out if this is an example of Munchausen Syndrome or virtue signaling. Either way… pretty bad. You should see a therapist. No… really.

              1. Hahahahahahahahahaha

        2. I lost my business income when Covid hit. I am living in a rusty RV in the parking lot behind WalMart in Tacoma. Amazing how much good stuff they throw out every day.

          I had a foot injury a month ago while foraging for scrap metal and it is red and swollen. I don’t have health insurance but can probably get to Canada if the brakes hold out. Can I apply for asylum and get free health care?

          Just bringing up a discussion point.

      3. The typical leftie stating something they read on the internet, despite showing zero proof and expecting a pat on the head.

        Seriously, you are one of the biggest jokes here, most people just beat the holy shit out of you each time you post. Give it up while you still have some self respect.

        1. If raspberries had any self respect he/she wouldn’t be such a piece of shit.

      4. You must be really fucking ignorant to not know what’s going on in many central American countries

        We can’t afford to import every unhappy person who lives outside the USA. Not even all the unhappy people in Central and South America.

        1. We can’t? Most people don’t want to live in this first rate second rate country you know.

      5. Oh honey, here’s the thing – you’ve blown your credibility so many times that no one takes you seriously even on the rare occasions when you’re right.

        You might want to contemplate that.

  4. >>many of the promises he made on the campaign trail have fallen flat

    I will stop assuming you are today learning (D) lies when it cries, if you will write with 15% more outrage about the lies.

  5. JFC, Title 42 is the LAW. When exactly did Libertarians start ADVOCATING for Presidents ruling lawlessly?

    1. Obama spying on an opposing comalign using Russian misinformation is probably around the time they openly started doing it.

    2. The Controlled Substances Act is law too.

      Your point is taken, though.

      1. Yes. And, taking one day with another, it’s good for your health, lifespan and ability to stay out of jail to pay attention to that Controlled Substances Act.

    3. When did libertarians start advocating for the military to patrol the Southern border and building useless boondoggles in the desert?

  6. Reason is complaining about not allowing illegal immigrants to openly lie about the reason for their crossing illegally..

    1. By virtue of their appearance at our souther border, they’re clearly lying about asylum.

      Mexico is relatively safe and there are TONS of opportunities for people willing to work. So anyone skipping Mexico to get to USA is just a grifter.

  7. Reason is actually lying here about the conditions in northern Mexico or in Central America. While no they aren’t as nice as some other places, that doesn’t mean these are individuals who need asylum. This is a grift from open borders country club koch industries chamber of commerce types who want cheap labor.

    Time to close the border permanently.

    1. This is a parody, right?

      1. Good work calling out everything you disagreed with.

      2. Its not a parody but its not entirely correct.

        But its not wrong either. At least on the western half of Northern Mexico its pretty decent and reasonably safe.

        1. And if those people want to work north of this arbitrary border and someone wants to pay them a wage what business is it of yours or the governments?

          1. Hey American Snowflake

            You’re confused about something here. We are Libertarians. Not Anarchists. The latter must sound appealing to whiny, victim-signalling snowflakes though.

            1. How is that anarchy?

              Lots of people come here on work or student visas. A good start would be to expand those programs. The solution to illegal immigration is legal immigration.

              1. It’s like illegal anything. Make it all legal so it’s not illegal!

    2. Copycat.

      But you’re right.

  8. Oh Look! We got Irish Shikha to call us racist .
    .

  9. Biden has continued much of the Trump administration’s approach to immigration: separating families, overfilling detention facilities, and plainly telling people to stay away.

    At the height of the migrant crisis under Trump circa May of 2019, I remember reading that some 150,000 per month were arriving from El Salvador, Guatemala, and Honduras. I’m reading that they’re arriving at the rate of 180,000 a month now.

    Back in 2012, before Obama’s DACA EO, we were getting less than 1,000 asylums claims from those three countries combined–in a year.

    It would have been absurd to blame Trump for “overfilling detention facilities” in 2019, and it’s absurd to blame Biden today. Blaming them for a sea of children flooding across our border and turning themselves in to immigration authorities is like blaming Trump and Biden for a hurricane or a flood. Do expect the HS to abandon these children on the street? That’s against the law.

    During the Trump administration, some 80% of the asylum claims were by children, and while that percentage has gone done, they’re still overwhelming our capacity to house them. That’s not Biden’s fault.

    1. P.S. Obama told the world that we wouldn’t deport illegal immigrants if they came here as children, and only progressives have a hard time understanding why this encouraged people in extremely poor countries to send their children to the United States. That’s because progressives are willfully stupid when it comes to basic concepts that involve economic thinking.

      1. Don’t forget that they are America’s worst people.

      2. Scott Adams says Progressives simply don’t understand human nature.

        They try to make policy without ever taking human nature into account. Then they’re completely flabbergasted when everything goes to shit.

        1. They do understand it, quite well. They say and do things that create these situations for the sole purpose of destabilizing the system.

          1. Correct.
            They understand human nature, and craft policy to intentionally reject it.
            Useful idiots and idealists might just be going along, but their masters know what they’re doing.

    2. It’s not absurd to blame the Biden administration for conditions that they created via messaging and directives.
      The increase in migration is the direct result of the Biden admin and associates telling the world that the US Daddy Gov would provide incentives to migrate outside lawful process.

      1. The issue is DACA.

        So long as it is the policy of the United States to incentivize the people of the Northern Triangle countries to send their children to the United States by promising not to deport children, the people of the Northern Triangle countries will continue to send their children to the United States.

        Before DACA, less than a thousand asylum seekers showed up from those countries every year. Since then, it regularly peaks at over 150,000 a month.

        The Supreme Court blew it when they failed to strike down DACA, which everyone, up to and including Shika Dalmia, expected to be declared unconstitutional.

    3. Those kids should be reunited with their parents in Central America by bus and their parents should be marked as permanently ineligible for immigration because of child endangerment.

      If their parents are in the US, the parents and children should be reunited, and the parents should be marked as permanently ineligible for readmission because of child endangerment. Then ship them all back to Central America.

      If the mom popped out a child here, have her sent back to Central America and the child into foster care. Mark the mother as permanently ineligible for readmission for 30 years.

      That’s how you end the border problem.

  10. I love trump because He is from the right-wing, But Biden works like Trump. He also holds china for his work. Now I also like biden

  11. Boy, maybe we should get rid of this border and allow people who want to live and work here to do so. I’d be ok with that.

    1. Of course you would. You’re the most pro-billionaire, pro-Wall-Street, pro-big-bank “socia1ist” I’ve ever known, online or off. There was never any doubt you’d support Reason.com benefactor Charles Koch’s quest to increase his profits by importing cost-effective foreign-born labor.

      #OpenTheBordersToHelpBillionaires

    2. How about people who want to live and not work here?

      1. This is a libertarian comment board not a place to see how far one can stick his finger up Trump’s butthole. I don’t see anything consistent with my concept of limited government in having a highly militarized police force on the Mexican border absent a good reason. Also, my concept of socialism isn’t enhanced by having the police beat and detain desperately poor people looking for work and a better life.

        If you are so against billionaires why not advocate as I do for a 90% marginal tax on incomes above $500,000. That’s knock Mr. Koch back a few rings. But I know you’re just a right-wing troll not interested one iota in addressing the sickening levels of income inequality. You’re here because your a sad little turd of a man who can’t get over the fact that Daddy Trump lost. Boo fucking hoo… JC… get over it.

        1. “Open borders? I don’t support that. That’s a Koch Brothers proposal.”

          Who said this? Oh yeah, it was Bernie Sanders. The same Bernie Sanders who’s been criticizing enormous wealth for about a half century — during which Charles Koch has been growing his net worth to $64,400,000,000.

          You’re a “socia1ist” who sides with Charles Koch over Bernie Sanders. That’s how I’ve labeled you all along and you just admitted it. So you can pretend to have a chip on your shoulder about “the 1%,” but we both know in 2024 — after a few more years of skyrocketing billionaire wealth and no attempt to pass M4A — you’ll obediently vote for Kamala Harris. Probably citing access to abortion care as your primary motivation.

          #AbortionAboveAll

        2. The wealth tax won’t do anything because the truly wealthy don’t pay taxes. They do not have earned income and do not spend their own money.

          Look at Trump. He lives and plays in the income generating property owned by his companies which devalue property worth to avoid even the corporate taxes. He has no real taxable income. The Bezos of the world own equities, not income. If you want a new mansion or something you take a loan, the interest on which is much cheaper than income tax. If you want a few weeks in the Caribbean just arrange a few business meetings.

          The people who get slammed in a progressive tax are wage earners in the six figures.

      2. I’m ok with it.

    3. The party of open borders doesn’t even agree with you.

    4. Work and accept no taxpayer funded assistance of any kind, sure.

      And yes, we produce plenty of freeloaders domestically. Point taken. But this is a poor argument for importing more.

      1. I’d like to see you picking almonds in Southern California. You wouldn’t last a fucking hour.

        1. Most Americans would for $15 an hour.

          1. Most Americans would for 15$/hr but only if you strip them of welfare.

          2. Really? Because around here every other retail place has a big sign out front begging for workers for much easier jobs starting at $15/hr.

      2. People are not imports. Avocados are imports. To call another human being an import is to objectify the individual as a mere commodity.

        People are autonomous individuals who may choose to move and seek employment and other opportunities of their own free will.

  12. Despite the fact that many of the promises Biden made on the campaign trail have fallen flat, the main promise he made was that he wouldn’t be Donald Trump and I’d have to say he’s delivered on that promise in spades.

  13. I see the meme now.

    Sweating Joe Biden having to choose between the buttons labeled ‘Admit Trump was right’ and ‘let the country burn’.

    Or are we to the point where we’re able to admit that Biden is a useless, even dangerous, President and we would have been better off with Trump? Or even Bernie.

    But hey – no mean tweets and ‘wrong, but within normal parameters’. A total return to the status quo ante. Which is all libertarians have ever really wanted, right? For things to not change.

    1. He’ll choose “do the same thing as Trump (or worse)” while never admitting Trump was right while banking on the media to run cover for him.

    2. Reason magazine: establishment status quo uber alles (and totalitarianism is cool if it’s leftist gentry rulers)

  14. Biden continues to deliver delicious culture war casualties.

    I hear they even mask up before they swim their laps in the Rio Grande. PROGRESS! The Democrats are so proud of you. 🙂

  15. Lol

    https://twitter.com/BeckettUnite/status/1404507993891352579?s=19

    Happy birthday Che Guevara who would be 93 today.

    I do tremble with indignation at every injustice and I am a comrade of yours.

    Solidarity today to the refugees, the Palestinians, the working poor, the disabled, victims of sexism, homophobia, biphobia, transphobia & racism.

    1. That’s funny.

      The Arabs of Israel who call themselves Palestinians are the most coddled welfare cheats in the Middle East. They could just go back to their native Jordan and Egypt, but would rather maintain a fiction of being refugees into the fifth generation.

      Che wouldn’t respect those sloths. He’d have contempt for their laziness.

  16. I just Love every content here nice blog
    But hey – no mean tweets and ‘wrong, but within normal parameters’. A total return to the status quo ante. Which is all libertarians have ever really wanted, right? For things to not change.

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