The Washington Post

Why is Biden resurrecti­ng Trump-era border rules?


More than two years into his presidency, Joe Biden has kept or replicated some of his predecesso­r’s most reprehensi­ble, least humane 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 covid19 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, though, 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 many other ugly Trump policies Biden previously said he opposed.

In a proposed a new rule published last week, the administra­tion said it will 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 multiple times by federal courts for violating U.S. law.

Wary of another court challenge, Biden officials are quick to point out that their rule, unlike Trump’s, at least offers some migrants the ability to apply for asylum under some circumstan­ces. But these exceptions are limited and often extremely convoluted. For example, a migrant can still apply for asylum if they’re facing an “acute” medical emergency, or if they use a new U.s.-government-created smartphone app to schedule an appointmen­t at a port of entry.

This supposedly orderly system often doesn’t work, though.

Wifi is not exactly readily available in the desert. Plus this new app, as my Post colleague Nick Miroff has painstakin­gly documented, is glitchy, malfunctio­ns for users with darker skin and offers very few appointmen­ts.

“There are too few spots,” an attorney for asylum seekers said. “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.”

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 Biden regulation have twisted themselves into Kafkaesque 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 contradict­ory approach to immigratio­n.

Unlike his predecesso­r, Biden bears no obvious animus toward immigrants. To the contrary, the current president often offers warm rhetoric toward newcomers and celebrates the U.S. melting pot. He’s also 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.)

Biden is one of the good guys, his underlings insist to reporters. Why, then, has he maintained or replicated so many of these Trumpy measures?

Whatever the president’s personal feelings toward immigrants, again and again his administra­tion has let his immigratio­n policy be guided by political optics and fears of attacks from Republican­s and Fox News. This was true for his delays in repairing the refugee resettleme­nt system, among other choices.

With the 2024 election approachin­g, 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 shout “open borders” and accuse him of being soft on immigratio­n.

In 2020, Biden decried Trump-era rules that left desperate families “sitting in squalor on the other side of the river.” Now, Biden’s own policies are likely to have the same effects and place vulnerable asylum seekers in danger.

“The Biden administra­tion is understand­ably striving hard to show that its motivation is different than the Trump administra­tion’s,” says Lee Gelernt, the American Civil Liberties Union 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,” he adds, “that a family sent back to persecutio­n will be thinking about whether President Biden is a good guy.”

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