“On his first day in the presidency, Biden began to tackle some of the harsh immigration measures imposed by Trump. He lifted Trump’s so-called Muslim ban, which prevented citizens of seven predominantly Muslim countries from coming to the U.S. He signed an executive order halting construction of a wall at the U.S.-Mexico border. And he sent the U.S. Citizenship Act of 2021 to Congress. Among other things, that bill set out to create a path to citizenship for undocumented people, clear backlogs in the family-based immigration system, and improve immigration courts.
However, many of those early wins—and supposed reversals of Trump’s policies—came with asterisks. Biden was right to rescind Trump’s “Muslim ban,” but nearly all families affected by the policy remained separated because of visa application backlogs. He was right to halt construction of the border wall (which was never going to work), but his administration failed to stop Trump’s land grab lawsuits and the federal government continued to seize private property along the U.S.-Mexico border through eminent domain. That ambitious immigration bill has gone nowhere.
Since taking office, Biden has cherry-picked which of Trump’s most controversial policies he’ll keep and which he’ll discard. The ones he’s kept are cruel, counterproductive, and are failing to please either side of the political aisle.
Key among them is Title 42, which critics say violates longstanding U.S. asylum law. The policy was first imposed by the Trump administration and allows Customs and Border Patrol (CBP) to expel migrants on public health grounds. Deprived of the opportunity to present their cases for asylum, migrants are very often returned to dangerous communities and countries. Biden has kept Title 42 in place, even though it was the brainchild of notoriously anti-immigration Trump adviser Stephen Miller. Centers for Disease Control and Prevention officials have questioned its efficacy as a COVID-19 mitigation measure from the very beginning.
CBP expelled over 1 million people under Title 42 in 2021, with over 7,000 migrants getting kidnapped and attacked by cartels and Mexican authorities post-expulsion since Inauguration Day. The Biden administration has also used Title 42 to deport thousands of Haitians to Haiti, even though many of the deportees hadn’t lived in Haiti for years and were actually coming from South America. Some Biden appointees have suggested that the president’s continuation of Title 42 “is largely based on optics—that it’s staying in place because of concerns that ending it will fuel perceptions of a chaotic border.”
But Biden’s critics falsely claim that the Southern border is open. It’s true that CBP reported a 21-year high of 1.66 million migrant encounters at the border in fiscal year 2021. The majority—61 percent—of those apprehensions resulted in Title 42 expulsions, and the figure fails to account for repeat crossings. “Perversely, continuing this Trump policy has also given ammunition to the hard-right nativists, because it has the unintended consequence of inflating the count of U.S. border crossings,” writes The Washington Post’s Catherine Rampell. Over one-quarter of encountered individuals were apprehended multiple times by CBP, Rampell notes—”nearly quadruple the share in 2019.”
All the while, inefficiency has plagued day-to-day aspects of the U.S. immigration system. Two years into the pandemic, 60 percent of U.S. embassies and consulates are still partially or completely closed for visa processing. Nearly 440,000 immigrant visa applicants whose cases are “documentarily complete” are still waiting for visa appointments (the State Department scheduled just 26,605 appointments for this month). The nation’s refugee intake hit a record low in fiscal year 2021 and our numbers aren’t on pace to be any better in 2022. Legal immigration collapsed under Trump; it hasn’t rebounded under Biden.
All that said, it would be unfair to say that Biden’s immigration policy has been a complete failure. The administration evacuated a staggering number of Afghans after their country fell to the Taliban in August. Visa processing has been imperfect and many vulnerable people are still trapped in Afghanistan, but the Biden administration smartly introduced a private refugee sponsorship program that allows U.S. citizens to help support and resettle evacuated Afghans. Biden has rescinded some Trump-era rules that needlessly slowed down visa and work permit processing, and recently added 20,000 visas to this fiscal year’s cap for the nonimmigrant nonagricultural worker H-2B visa. The administration restarted the Central American Minors program, which allows at-risk children from El Salvador, Guatemala, and Honduras to come to the U.S. as refugees.”
“While the specific cases in [this] lawsuit are unfortunate, they point to broader systemic issues in the American immigration apparatus. As Reason’s Eric Boehm reported in September, “one of the major drivers of the immigration system’s mounting caseloads,” which involves “a backlog of nearly 7 million applications and petitions,” comes down to “the government’s own, recently beefed-up immigration bureaucracy.”
The Application for Employment Authorization—the document at the heart of these plaintiffs’ woes and USCIS’s processing issues—”was expanded from one page and 18 questions to seven pages and 61 questions,” writes Boehm. Immigration restrictionists often say that hopeful migrants should come here “the legal way,” but the legal way is becoming more and more difficult to navigate. Immigrants who are already here and employed legally are finding themselves unable to continue working.
Unfortunately, the plaintiffs’ struggle is a reminder that the byzantine legal immigration system doesn’t just harm the migrants tangled in red tape—it also harms the native-born Americans who could benefit from their skills and services in tough times.”
“The memo argues that the policy, also known as “Remain in Mexico,” caused more harm than good, particularly in terms of its humanitarian impact.
“I recognize that MPP likely contributed to reduced migratory flows,” DHS Secretary Alejandro Mayorkas wrote in the four-page memo announcing the policy shift. “But it did so by imposing substantial and unjustifiable human costs on the individuals who were exposed to harm while waiting in Mexico.”
That determination is in line with Biden’s campaign promises on immigration, which included reversing policies like Trump’s “zero-tolerance” policy that resulted in family separations. It’s at odds, however, with the administration’s continuing reluctance to completely do away with other Trump-era legacies like Title 42, the immigration order that has allowed for the deportation of migrants as a public health measure during the pandemic.
And even though Biden began rolling back the MPP soon after taking office in January, his administration has had to prepare to re-implement the program in recent weeks in order to comply with a previous court order — even as it’s actively fighting to end the policy for good.”
“A 39-page justification published along with the memo outlines in further detail the conditions migrants faced in detention in Mexico, including the risk of sexual assault and kidnapping in the encampments where they stayed, as well as unsanitary and unstable housing conditions, limited access to health care and legal counsel, and insufficient food while they waited for the US to make a decision about their asylum hearings.
The right to seek asylum is protected under international law, and has been since the UN’s Universal Declaration of Human Rights was adopted in 1948.”
“Ultimately, the Biden administration argues the policy has far too many issues for it to be salvaged: Not only does it require significant resources that could be directed elsewhere, according to the DHS memo, but MPP also failed to achieve reduction in crimes like human trafficking and drug smuggling, put people in serious danger, and doesn’t address the root causes that lead to people seeking asylum.
Additionally, the memo says, any program fixes would require the cooperation of Mexico and further diplomatic negotiations — time and energy that could be better spent on other issues. And other strict immigration policies were enacted at the same time as MPP, making it difficult to assess any deterrent effect the policy may have achieved.”
“The horse patrols aren’t the point. Democrats promised a different sort of immigration policy than what former President Donald Trump offered. But with a few tweaks around the margins, the Biden administration has continued—or even expanded—its predecessor’s policies.
It gets away with this in part because of symbiotic bullshitting between the Biden administration and the people opposed to it. The latter really want their base to think that Democrats are ushering in “open borders” and an influx of scary criminal immigrants, so they rant and rave as if President Joe Biden isn’t just largely continuing Trump policies. And since Democrats don’t want to seem like Trump 2.0 on immigration, both teams of bullshit artistry benefit.”
“The administration’s tone-deaf response? To announce that border patrol agents would stop riding horses, for now.
“We have ceased the use of the horse patrol in Del Rio temporarily,” a Department of Homeland Security official told reporters on Thursday.
They’ll still be capturing and sending home asylum seekers on sight. In fact, they’ll be doing more of it. But by foot! Or by truck! Not on a horse! Doesn’t that make you feel better about our government rounding up migrants, chaining them, and shipping them back to their countries of origin without so much as a chance to plead their case for a better life here?”
“In late August, Nephtalie and her husband, still waiting in Chiapas, began to hear a rumor spreading around the Haitian migrant population living across Mexico. From interviews this week with other migrants in Del Rio, and conversations with attorneys who have met with dozens more, it seems that many people had the same experience. The rumor went like this: First, information went around that, while most of the border was closed, U.S. immigration authorities were allowing people to cross and ask for asylum in Mexicali — on the border with Calexico, California — and in Acuña, the Mexican city across from Del Rio. (This was not true, but it spread like wildfire among people yearning for a glimmer of hope.) Second, the rumor said that Sept. 16 would be the best day to travel. That would be Mexico’s Independence Day, and migrants figured that the Mexican authorities, who have bowed to U.S. pressure to more stringently police immigrants in Mexico, would be preoccupied, allowing them to travel within the country unimpeded northward. Finally, the bus routes to Acuña were cheaper than to other spots along the border, like Mexicali. So, as el Día de la Independencia de México arrived, thousands of people who had heard the rumors — by word of mouth or on WhatsApp or on Haitian social media — began traveling to Acuña to cross into Del Rio.
When I asked one Haitian man at a gas station in Del Rio, “Why did you choose to cross from Acunã to Del Rio?” he replied: “Where is that?” Like many, he had probably simply followed others along what sounded like an opportunity to finally be accepted in the United States.
But the stakes of following such a rumor only to be faced with the reality of a closed border are tragic: Most of the Haitians in Del Rio today left Haiti years ago. Now, after traveling thousands of miles with the hope that they could eventually gain asylum in the U.S., many are instead being returned to the very island they fled.”
“The number of migrants apprehended at the border isn’t going down this summer, even as the heat makes the journey to the U.S. more dangerous. Instead, it has reached a 21-year high — and there’s a record number of unaccompanied children arriving, too.”
“Migrants for years have been pushed to seek refuge in the U.S. because of conditions in their home countries. But over the past 16 months, the numbers have increased as part of the fallout from the Covid-19 pandemic and as migrants face even more dire economic circumstances.
“The pandemic probably is a big part of it,” said Andrew Rudman, director of the Mexico Institute at the Wilson Center, a non-partisan organization that engages in research on global issues. “You’ve got just a lot more people out of work and suffering because of the economic impact and that probably increases, surely increases, the pull factor.”
The Biden administration has continued to use the Trump-era public health order, known as Title 42, to expel migrants without allowing them to seek asylum. And experts and analysts say that this, too, is likely a major factor for the high number of apprehensions recorded each month. A large portion of migrants crossing the border are repeat crossers, who keep trying because there isn’t any real punishment when they get caught.
In June, for example, more than 188,000 migrants were apprehended at the border. Of those, 34 percent had tried to cross at least once before in the last 12 months, according to U.S. Customs and Border Protection figures. That’s compared with an average recidivism rate of 14 percent for fiscal years 2014 to 2019.
Biden continues to turn away most of the migrants encountered at the border through Title 42, including single adults and many families, but has made exceptions for unaccompanied children to stay for humanitarian reasons. It has led some parents to send their children to the U.S. alone, knowing that the administration will allow them to stay, according to immigrant advocates.
Democratic lawmakers, immigrant advocates and public health experts for months have been urging the Biden administration to end its use of Title 42, arguing that it is unlawful, inhumane and not justified by public health. Biden officials were planning to begin phasing out Title 42, but those plans were derailed given the fast-spreading Delta variant of the coronavirus and the increase in apprehensions.”
“The US could soon be facing dual migrant crises stemming from unrest in Haiti and Cuba. In response, the Biden administration has preemptively warned migrants not to try to come to the US by boat.
Homeland Security Secretary Alejandro Mayorkas recently confirmed that any migrants intercepted by the US Coast Guard off US shores will not be allowed to enter the country — they will be turned back or, if they express fear of returning to their home countries, repatriated to a third country.
“The time is never right to attempt migration by sea,” Mayorkas said in a press conference earlier this month. “To those who risk their lives doing so, this risk is not worth taking. Allow me to be clear: If you take to the sea, you will not come to the United States.”
The policy isn’t new. Past administrations, both Republican and Democratic, have employed this interdiction approach to prevent Caribbean migrants from reaching US shores. But although it was always done under the pretense of protecting migrants from the very real dangers of that journey, it resulted in many Haitians being returned to certain peril in their home country over the years and, under the administrations of Presidents George H.W. Bush and Bill Clinton, languishing in what one federal judge called a “prison camp” at Guantanamo Bay, Cuba, where they were held after being intercepted at sea.”
“The vast majority of migrants who passed through Guantanamo were returned to Haiti. A much smaller percentage were able to be paroled into the United States because they passed their asylum interviews.”
“Biden is now allowing a trickle of asylum seekers to enter the U.S. from Mexico, but it’s unclear why some people may come and others may not.
The Associated Press reported in June that the Biden administration had quietly recruited six humanitarian groups to recommend which migrants should be allowed into the U.S. and initiate the asylum-seeking process. Only one of those groups—the International Rescue Committee—was publicly identified. According to the A.P.’s anonymous sources, the others are the London-based Save the Children, the American organizations HIAS and Kids in Need of Defense, and two Mexican groups, Asylum Access and the Institute for Women in Migration. Though the U.S. government has final say over who receives asylum, it relies on those organizations’ referrals.
Officials have not publicly confirmed that these are the responsible groups, and the criteria the organizations are using to select lucky entrants are just as fuzzy. The administration has reportedly asked them to prioritize migrants with serious medical issues, migrants who face imminent danger, and members of marginalized groups. But no guidance has been published, and many of the selected migrants “fall outside those categories.”
Under domestic and international law, all migrants who present themselves at U.S. ports of entry or on American soil are granted the opportunity to make asylum claims. Eligibility for asylum hinges on proving you’ve been persecuted on the grounds of race, religion, nationality, membership in certain other social groups, or political opinion. That process ground to a halt during the pandemic, after the Trump administration implemented Title 42. This policy—which Biden has maintained—allows Customs and Border Patrol officials to expel migrants immediately upon arrival and bar them from arguing their vulnerability before U.S. immigration officials.”
“In theory, these sites, run by the Department of Health and Human Services (HHS) are a way station for kids who are waiting to be reunited with relatives or other connections in the U.S. In fact, staffing problems and other issues left many kids stuck in limbo for up to a month or more in conditions that federal whistleblowers, lawyers, and the children themselves have described as filthy and chaotic.
“For months, the children we have met with at the EISs have shared one horror story after the next,” Leecia Welch, senior director of child welfare and legal advocacy at the National Center for Youth Law, said in a press release. “Children have described spending the bulk of the day on or around their cots crammed in massive tents with hundreds of other children, suffering escalating anxiety attacks from the stress of the harsh EIS environment, going weeks without clean clothes or underwear, and spending months without going outside for some fresh air. While some of the unsafe EIS facilities have been closed, mega tent encampments and mining mancamp sites like Fort Bliss and Pecos remain open with no end in sight.””
“Over 14,000 unaccompanied minors are now in the care of the Department of Health and Human Services.
Detained minors in their testimonials for the case described limited time outside, sporadic showers, and being served inadequate or unsafe food, including raw chicken and foul-smelling hamburgers. A 13-year-old Honduran recounted being “locked up all day” during five days in Customs and Border Patrol (CBP) custody. A 14-year-old Guatemalan girl said that detainees at a facility in Houston had to drink expired milk when they ran out of water. “I was never allowed to make a phone call while I was there,” said a 17-year-old Honduran who was in CBP custody for 11 days. Minors reported receiving few details about how long they would be in custody and many were transferred to other facilities with little notice or explanation.
Those conditions have left detained minors despondent. “I used to be able to cope with my anxiety and breathe through it, but now I feel like I’ve given up,” said a 17-year-old from Guatemala. “I feel like I’ll never get out of here.” One child was placed on suicide watch and another described how difficult it was to get an appointment with a counselor, though many girls in detention “have thoughts of cutting themselves.” Teens have resorted to cutting themselves with their identification cards since employees at one facility banned pencils, pens, toothbrushes, and even the metal nose clips of N95 face masks over concerns of self-harm, according to testimony and worker accounts.
“There is no one here I can talk to about my case,” said a 17-year-old Honduran detainee. “There’s also no one here I can talk to when I’m feeling sad. There’s no one here; I just talk to God. It helps me and I cry. It would help if I could have a Bible.””