Biden’s incoherent immigration policy

President Biden proposed humane immigration reforms but continued harsh, Trump-era enforcement policies at the border.

There is a growing gulf between the progressive immigration values President Joe Biden professes and the enforcement policies he’s implementing at the border — and it’s led to confusion among immigration officials, uncertainty for migrants, and questions about whether the president has a coherent strategy on immigration at all.

On the campaign trail, Biden promised a more humane approach to the southern border than former President Donald Trump, whom he described as launching an “unrelenting assault on our values and our history as a nation of immigrants” and “bullying legitimate asylum seekers.”

But during his first year in office, Biden has leaned on his predecessor’s efforts to cut off access to the asylum system on the border more than he admits.

The Biden administration has clung to pandemic-related border restrictions enacted by Trump, known as the Title 42 policy, under which the US has expelled hundreds of thousands of migrants without giving them access to their legal right to apply for asylum. And faced with a recent spike in Haitian migrants at the border, Biden forcibly returned thousands to Haiti despite an ongoing political and humanitarian crisis there.

Win McNamee/Getty Images

These enforcement actions create a stark contrast between how the president treats migrants who are trying to enter the US and those already living in the country for whom he has tried to provide a path to citizenship.

And that inconsistency has become a source of strife within the administration. The US special envoy for Haiti recently resigned over the government’s “deeply flawed” Haiti policy. So did a senior State Department official who called the Title 42 policy “illegal,” “inhumane,” and “not worthy of this administration.” Current Department of Homeland Security officials have also described a general lack of direction on immigration.

Biden has also become a target of criticism from both the right and the left. Republican immigration hawks accuse him of presiding over an out-of-control border, while Democrats and immigration activists decry his decision to deny Haitians and other migrants a safe haven.

Biden has tried to please both sides by taking a generally strict approach to the border while trying to bring relief to undocumented immigrants in the US living under the threat of deportation. But in doing so, he has exacerbated inequities that already exist in the US immigration system.

He has pursued policies designed to uplift immigrants who have put down roots in the US, many of whom have been able to attract public sympathy. But the migrants most Americans will never see are now the subject of his harshest enforcement initiatives. This approach has left Biden with a border policy not so different from the one he once decried.

Biden made initial progress in dismantling Trump’s immigration policies, but it didn’t last

During his early days in office, Biden seemed on track to dismantle the Trump administration’s most restrictive immigration policies. He ended the travel ban on people from mostly Muslim-majority countries, halted most new border wall construction, and reversed the “zero-tolerance policy” that enabled family separations and the “Remain in Mexico” program that kept asylum seekers waiting in Mexico for court hearings in the US. He also released an expansive reform proposal with a path to citizenship for the more than 10 million undocumented immigrants living in the US as its centerpiece.

Then, within weeks of his inauguration, record numbers of unaccompanied migrant children began arriving from Central America, and Biden’s border policies came under scrutiny from both the left and the right.

Gerardo Vieyra/NurPhoto via Getty Images

Suddenly on the defensive, the administration’s posture shifted. It reopened temporary, jail-like facilities — the same “cages” that drew condemnation in 2019 under Trump — to house migrant children. On a June trip to Guatemala, in what would become a common refrain for US officials, Vice President Kamala Harris told migrants, “Don’t come.”

In the past, Mayorkas has argued that the administration has had no choice but to take such measures, saying that they were virtually starting from scratch in creating a system to humanely process migrants at the border.

“The entire system was gutted,” Mayorkas said during a briefing at the White House in March. “It takes time to build out of the depths of cruelty that the administration before us established.”

But despite condemnations of Trump’s legacy on the border, Biden has actively preserved one of his predecessor’s key policies to keep migrants out.

The Title 42 policy continues to be a stain on Biden’s immigration record

Biden’s primary tool to manage the border has been a controversial policy that one ex-Trump official, referring to the architect of the former president’s restrictive immigration policy, called a “Stephen Miller special.”

In March 2020, at the outset of the pandemic, Trump used a special legal authority called Title 42, a section of the Public Health Service Act that allows the US government to temporarily block noncitizens from entering the US in the interest of public health. Though Centers for Disease Control and Prevention (CDC) scientists initially opposed the policy, arguing that there was no legitimate public health rationale behind it, then-Vice President Mike Pence ordered them to implement it anyway.

Under both Trump and Biden, the policy has allowed US immigration officials at the southern border to rapidly expel migrants more than 1.1 million times, without a hearing before an immigration judge. (The exact number of people expelled is unknown because many have been caught trying to cross the border multiple times.)

Even when a federal judge recently blocked the policy from being used to expel families, the Biden administration chose to appeal the ruling, and has continued (with court permission) to enforce the policy while litigation continues.

Biden has carved out some exemptions. Unaccompanied children and people subject to the “Remain in Mexico” policy under Trump are allowed to enter the US while their cases are adjudicated. The Mexican government has also refused to take back some Haitian and Central American families, who have been allowed to enter. But everyone else, including people facing real persecution and danger in their home countries or in Mexico, can be expelled.

Sarah Silbiger/Bloomberg via Getty Images

Jim Lo Scalzo/EPA/Bloomberg via Getty Images

The White House has maintained that there is a public health obligation to enforce Title 42, referring Vox to Mayorkas’s recent comments on CNN, in which he described the policy as a means “to protect migrants themselves, local communities, our personnel, and the American public.” White House press secretary Jen Psaki has said that the administration doesn’t view Title 42 as an immigration policy; it’s a CDC policy. The CDC announced on Monday that Title 42 “continues to be necessary” given continued high levels of Covid-19 transmission.

However, many public health experts say that migrants can be safely processed at the border and that the policy represents an attempt to “unethically and illegally exploit the Covid-19 pandemic to expel, block, and return to danger asylum seekers and individuals seeking protection.” Anthony Fauci, the United States’ top federal infectious disease expert, recently said that “expelling [migrants] … is not the solution to an outbreak.”

Though Title 42 has proved a convenient means for Biden to manage the border, he has other options. For years now, experts have been contemplating broad fixes to the asylum system to address migration surges, including building new processing centers and putting more power in the hands of asylum officers rather than border patrol agents.

Biden’s insistence on maintaining Title 42 has driven away one of his own top immigration officials. Harold Koh, a senior State Department lawyer, resigned earlier this month after writing a scathing, 3,000-word legal memo arguing Title 42 runs afoul of US asylum law and longstanding international treaties, particularly in the way it is currently being used to return Haitians to dire humanitarian conditions in their home country.

“[W]e all came into this Administration to give the American people a government as good as our national values,” the memo obtained by Politico reads. “I ask you to do everything in your power to revise this policy, especially as it affects Haitians, into one that is worthy of this nation we love.”

The Biden administration has turned its back on its humanitarian obligations toward Haiti

Haiti has been in a state of upheaval since at least July, when Haitian President Jovenel Moïse was assassinated and, amid the power vacuum, gang violence sharply escalated. When a 7.2-magnitude earthquake and tropical depression devastated Haiti in August, the country’s political crisis was compounded by a humanitarian one.

About 30,000 Haitian migrants arrived in Del Rio, Texas, last month, setting up a temporary encampment under the international bridge that connects the US and Mexico. There has also been a dramatic increase in Haitians attempting to cross the Caribbean by boat to reach the US. More than 1,500 such migrants were intercepted by the US Coast Guard over the last year, up from about 400 in the previous year.

Many of the Haitians seeking refuge in the US lived in Latin America for years after fleeing earlier crises in Haiti, including an even bigger 2010 earthquake. But the Covid-19 recession, racial discrimination in Latin America, the realization that going home was no longer an option, and the perception that the US would offer them humanitarian protection all played a role in their decision to move north.

At first, the Biden administration did offer protection. Mayorkas decided to extend Temporary Protected Status — typically used to enable citizens of countries that have experienced violent conflict or natural disasters to live and work in the US — for Haitians who arrived in the US prior to July 29. This offer was designed to cover those who fled the country in the aftermath of the political crisis stemming from Moïse’s killing.

At the time, Mayorkas said “serious security concerns, social unrest, an increase in human rights abuses, crippling poverty, and lack of basic resources, which are exacerbated by the COVID-19 pandemic” had made it dangerous for Haitians to return home.

But the administration maintained a strict stance toward those arriving by boat. Mayorkas said in July that any migrants intercepted off US shores will be turned back or, if they express fear of returning home, repatriated to a third country.

That policy isn’t new. Republican and Democratic administrations have employed this approach, known as interdiction, to prevent Caribbean migrants from reaching US shores. They argue it protects migrants from the very real dangers of that journey. In reality, however, it resulted in many Haitians being returned to certain peril in their home country; under the administrations of Presidents George H.W. Bush and Bill Clinton, migrants languished in what one federal judge called a “prison camp” at Guantanamo Bay, Cuba.

Biden has been making contingency plans to detain migrants at Guantanamo again, hiring guards who speak Creole (though Biden administration officials insist that Haitians arriving at the border will not be sent there). No such promises have been made about Immigration and Customs Enforcement (ICE) facilities inside the US, where the total detained population has ballooned to more than 21,000 on Biden’s watch — up from 13,500 as of late February but still well below the historic high of nearly 60,000 under Trump.

The Biden administration also worked quickly last month to empty out the camp in Del Rio. At one point, US Border Patrol agents on horseback used whip-like cords on Haitians to prevent them from returning to the camp after buying supplies on the Mexican side of the border. Following public outcry over the images, Biden halted the use of horses in the area, saying that it’s “simply not who we are.”

John Moore/Getty Images

John Moore/Getty Images

Paul Ratje/AFP via Getty Images

Most of the Haitians who were staying in the camp have since been expelled. The US has sent 7,000 back to Haiti since September 19 through the Title 42 policy, despite continued turmoil on the ground. Others voluntarily returned to Mexico to avoid being sent back to Haiti or were allowed to enter the US, at least temporarily.

It’s not clear how US authorities determined which Haitians were to be expelled and which permitted to stay. Some 12,000 Haitians are currently facing deportation proceedings in which they will be able to make their case before an immigration judge for why they should be allowed to remain in the US, via asylum or other humanitarian avenues.

Over the last three years, less than 5 percent of Haitians who sought asylum were ultimately successful — the lowest recorded rate amongst 83 nationalities. Those abysmal outcomes, immigrant advocates say, are rooted in racism; barring any major changes to the way judges review their asylum claims, it’s likely that many Haitians arriving at the border will be sent back home eventually, if not immediately.

When asked to respond to advocates’ concerns about Haitians being returned to dire conditions in their home country, the White House directed Vox to Mayorkas’s recent comments on CNN, where he explained that the decision to resume repatriation flights was made after studying on-the-ground conditions.

“[W]e made a determination based upon the facts that in fact, individuals could be safely returned to Haiti. We worked closely with the Haitian government and we have provided $5.5 million in humanitarian aid to assist in their humanitarian and safe return,” he told CNN.

Immigrant advocates argue that the conditions in Haiti remain grim, and as of October 4, US aid for those returned to Haiti had yet to arrive. And despite Mayorkas’s claims that all is well, US officials in the country have had to stay in secure compounds due to the threat of gang violence. The political situation is far from settled, with US-backed Prime Minister Ariel Henry under investigation for his ties to the men who assassinated Moïse.

The Biden administration did not have to return Haitians to such instability.

“The administration’s hands were not tied,” said Karen Musalo, founding director of the Center for Gender & Refugee Studies and the Refugee and Human Rights Clinic at UC Hastings College of the Law. “The administration was not forced to treat Haitians in this way. This is an affirmative decision that the administration is making, which is unlawful, it’s racist, it’s deplorable.”

Biden’s border policies don’t align with his other priorities on immigration

Wealthy countries have long struggled with calibrating migration policy to treat vulnerable populations humanely while also respecting national borders. But the Biden administration’s border policies, which have had the effect of excluding migrants from legal protections to which they may be entitled, haven’t balanced those priorities effectively. Rather, they have suppressed a group of migrants that already have very little visibility.

That approach contrasts with the administration’s efforts to improve the lives of undocumented immigrants already living in the US.

Biden has sought to provide legal status to at least some portion of America’s more than 10 million undocumented immigrants.

Kevin Dietsch/Getty Images

He backed Democrats’ latest but so far unsuccessful attempt to include a pathway to citizenship for certain categories of immigrants — including Dreamers who came to the US as children, TPS recipients, farmworkers, and essential workers — in a budget reconciliation bill. His administration also recently published a proposed regulation seeking to codify protections for Dreamers who have been allowed to live and work in the US under the Deferred Action for Childhood Arrivals program, which is meant to guard against ongoing legal challenges.

Biden has also attempted to expand legal aid resources for immigrants and limit the reach of immigration enforcement inside the US. The administration recently launched an initiative to provide unaccompanied children facing deportation with a government-funded lawyer in eight cities across the US, and has also sought to narrow the categories of undocumented immigrants who should be prioritized for arrest, issuing new US ICE guidance meant to focus resources on those who pose public safety threats. And on Tuesday, the administration ended mass worksite raids, which the Trump administration used to arrest hundreds of undocumented immigrants at once.

Such policies, Psaki said during a September 20 briefing, show that Biden remains “absolutely committed” to “putting in place long-overdue measures to fix our immigration system — to make it more moral, humane, and workable.”

But his actions on the border have told a different story: a push to improve the lives of only certain immigrants who are already integrated into American society, while keeping others out of sight and out of mind — even if that means embracing policies designed by the Trump administration.