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.”