Why is Biden resurrecting Trump immigration policies?
More than two years into his term, President Joe Biden has kept or replicated some of his predecessor’s most reprehensible border policies. That includes this past week, when the administration effectively revived a Trump-era asylum ban that Biden had once condemned.
First, Biden dragged his feet in scrapping former President Donald Trump’s Title 42 border policy, which used COVID-19 as a pretext for denying those arriving at the border the ability to apply for asylum, as is their right under both U.S. law and international treaty. Biden even expanded the use of Title 42 to apply to more migrant groups.
This use of Title 42 is expected to end when the COVID public health emergency officially comes to a close in May. Now, the Biden administration has concocted a different enforcement system that mashes up elements of other ugly Trump policies.
A proposed new rule would ban most migrants who pass through other countries on their way to the U.S. southern border from applying for asylum. This mirrors Trump’s pre-COVID “asylum transit ban,” which had been blocked by federal courts.
Biden officials note that their rule offers migrants the ability to apply for asylum under some circumstances. But these exceptions are limited and often convoluted. For example, a migrant can still apply for asylum if they’re facing an acute medical emergency, or if they use a smartphone app to schedule an appointment at a port of entry.
This supposedly orderly system often doesn’t work, though.
Wi-Fi is not readily available in the desert. Plus this new app malfunctions for users with darker skin and offers few appointments.
“It’s like trying to get tickets for a Taylor Swift concert, only it’s not a concert, and you’re trying to save your family’s life,” an attorney for an asylum-seeker said.”
If Trump had once built his border wall with paper and red tape, Biden has somehow reconstructed it out of pixels.
The drafters of this new regulation have twisted themselves into knots in an attempt to pass legal muster. For example, Biden’s proposed rule asserts: “there is nothing inconsistent in allowing an application for asylum to be made while also precluding a grant of asylum on the basis of that application.”
This language is pretty emblematic of Biden’s schizoid approach to immigration.
Unlike his predecessor, Biden bears no obvious animus toward immigrants. He’s created innovative new legal pathways to bring some displaced populations, such as Ukrainians, into the United States. And he appointed to top immigration posts some of the same legal experts and human rights advocates who valiantly fought Trump’s policies. (Many of them have since resigned, alas.) Yet again and again his administration has let his immigration policy be guided by optics and fears of attacks from the right.
Biden probably thinks he’s minimizing a political liability now by demonstrating that he can be “tough” on the border. But sacrificing principles in search of political points seems like a losing battle. No matter what Biden does, opponents will accuse him of being soft on immigration.
In 2020, Biden decried Trumpera rules that left desperate families “sitting in squalor on the other side of the river.” Now his own policies are likely to have the same effects.
“The Biden administration is understandably striving hard to show that its motivation is different than the Trump administration’s,” says Lee Gelernt, the attorney who successfully challenged Trump’s asylum transit bans. “But at the end of the day, a family escaping for their lives doesn’t really care what the motivation was for denying them a chance to seek safety. I doubt very much that a family sent back to persecution will be thinking about whether President Biden is a good guy.”