A Migrant Crisis of President Biden's Own Making
What is the Biden administration's overall philosophy concerning immigration? Does anyone know?
Is its position that the focus of immigration policy should be humanitarian, and that all those seeking a better life should be welcome to America? As a candidate, Joe Biden seemed to suggest something of the kind. In a June 2019 Democratic debate, he predicted that there would be a "surge to the border," if he were elected. "All those people seeking asylum . . . deserve to be heard," he said. "If you want to flee and you are fleeing oppression, you should come."
Biden surely knew that the grounds for granting political asylum under American law are narrow. One must have been "targeted for persecution because of race, religion, nationality, membership in a particular social group, or political opinion." And he likely knew that only in a very small number of fully adjudicated immigration cases is asylum granted.
But he also knew that in the Obama years, and at the outset of the Trump presidency, that those who survived the long and dangerous trek to the U.S. border and claimed the right to political asylum were quite likely to end up staying in the United States, without ever having their claims for asylum adjudicated.
The repeated emphasis of the president and presidential press secretary Jen Psaki on the economic deprivation and "root causes" driving the hordes arriving at the southern border suggests that Biden is perfectly content to open the border to a flood of migrants fleeing desperate economic circumstances, which is not a category entitled to asylum.
But it is not likely that the president will defend his policy in precisely those terms. And even less so, that he will defend open borders as a means of increasing over time the number of Democratic voters. Open borders does not poll well, even with Democrats, especially with core Democrat constituencies who are harmed by an influx of unskilled low wage workers. That may well be one reason that President Donald Trump did better with black voters than other recent Republican presidential candidates.
So far Biden has been content to define his policy as simply the reverse of Donald Trump's, and leave it at that. But it is never a good idea to reflexively do the opposite of what your predecessor did, even an unpopular predecessor. And thus far, immigration policy has been the area in which voters have expressed the greatest dissatisfaction with Biden.
IT IS IMPORTANT to remember that President Trump largely succeeded in regaining control of the southern border, particularly in the last two-and-a-half years of his presidency. The Trump administration set in place a number of mechanisms that effectively ended the "catch and release" policies, which had resulted in migrants arriving at the southern border in such large numbers as to overwhelm the ability of the U.S. government's to process them in any orderly fashion. Rich Lowry describes those mechanisms in "How Trump Got Control of the Border," National Review, March 17 2021.
Under a U.S. District Court order, immigration authorities were only allowed to detain unaccompanied minors from non-contiguous countries (i.e., not from Mexico) for twenty days before releasing them. Subsequently, that court order was expanded to include the families of minors. As the numbers arriving increased, and they invariably sought political asylum, immigration authorities in many cases just threw in the towel and issued the arriving migrants an administrative hearing date on their asylum claims and released them into the United States. Thus, the description of U.S. immigration policy as "catch and release."
The key insight of Trump administration players was that the statutory authority already existed to remove the time pressure to make a determination on eligibility for asylum. The key step was the signing of the Migrant Protection Protocols (MPP) with Mexico, pursuant to which asylum seekers remained in Mexico pending their asylum hearings, which were conducted remotely from Mexico. While waiting for their hearings, the migrants were granted temporary work permits and financial assistance by Mexico. Mexico entered into the MPP, at least in part, out of a desire to greatly reduce the large groups of migrants traversing their territory on the way to the United States. Once MPP went into effect, the number of large groups crossing Mexico, on the way North, dropped from forty to fifty a month to near zero.
Upon arriving in the United States, migrants were subject to preliminary hearings as to whether they had a "credible fear of persecution" in their home countries. In between 70-90 percent of cases, the U.S. Citizenship and Immigration Services (USCIS) interviewers found such a "credible fear of persecution," which then set into motion the requirement for a formal asylum hearing. Many immigration officers were naturally sympathetic to migrants who had risked so much to make it to the United States.
Under the Trump administration, a new training manual was created for interviewers that stressed the need for fear of racial, religious, or political persecution, and required the preliminary interviewers to make written findings of why such a credible fear existed. In addition, some of the interviewing was reassigned to Border Patrol officers, who were not part of an institutional culture of leniency, as were the USCIS interviewers. As a result preliminary findings of a credible fear of persecution dropped to under thirty percent. Those who did not pass the preliminary stage were returned to their native countries.
The Trump administration also discovered that it had the authority to avoid asylum proceedings by entering into agreements to receive the migrants with nations in which "aliens' life or freedom would not be threatened." Such agreements were negotiated with three Northern Triangle countries – Quatemala, El Salvador, and Honduras.
Finally, after the onset of COVID-19, the Trump administration exercised its power to protect public health by removing nearly all would-be asylum seekers on the grounds that they were a potential threat to public health.
As a consequence of these measures, the flow of migrants seeking political asylum crossing into the United States dropped by February 2020 almost 75% from its high point; the numbers of those held in custody went from an average of 20,000 to 3,000; and the daily flow of migrants at the border was reduced from 5,000 to 1,200 per day, with the latter figure occasionally below 1,000.
JOE BIDEN CAME into office determined to dismantle every single element of the Trump administration policies. On his first day in office, he suspended the MPP, and later terminated it. Similarly, he abrogated the asylum agreements with three Northern Triangle countries. He stopped the building of the Wall across America's southern border, the most visible symbol of Trump's decision to limit the flow of migrants into America. And he declared a 100-day moratorium on all deportations.
He even carved out an exception for unaccompanied minors under the age of eighteen to Trump's public health ban on migrants due to COVID-19, thereby providing an incentive for families to send unaccompanied minors. (At the same time, he was carving out an exception to public health restrictions due to COVID-19 for minors up to eighteen, President Biden remained supportive of the refusal of teachers unions to return to the classroom.)
The message of those actions was clear – the United States border is open again. "Catch and release" is back in effect. The "surge to the border" Biden predicted as a candidate started immediately. In January 2021, 80,000 migrants tried to enter the United States, twice the number of the previous year. By February 2021 that figure had increased to 101,500, nearly three times the number in February 2020. In March, the number jumped to 172,000, of whom 19,000 were unaccompanied minors.
Though the administration denied that there was a crisis, or tried to pass off the increases as normal seasonal events – they weren't, the peak periods for migrants are later in the year -- the connection to Biden's executive orders was clear. Secretary of Homeland Security Alejandro Mayorkas admitted that the United States was on pace to encounter more migrants at the southwestern border that at any point in the last twenty years.
Even as it denied a crisis, the Biden administration, according to NBC News, imposed an unofficial gag order on Border Patrol agents forbidding them to speak to the press. The Department of Homeland Security did not conduct any media tours of the opened shelters for minors, which turned out to be indistinguishable or worse than the "cages," for which the Trump administration was accused of being inhumane, though the shelters were now euphemistically renamed by the media 'facilities similar to jail."
Republican congressmen and women, on a visit to the border, discovered 350 children in pods designed to house sixty. One boy related that he only saw the sun once a week, when he was allowed to take a shower. Democratic representatives, by contrast, scrupulously stayed away from the border, as did vice-president Kamala Harris, who has been charged by the president with responsibility for the non-crisis at the border.
Better not to see close-up what President Biden had wrought by simply reversing every policy put in place by his predecessor.