Confusion and lack of conviction plague Biden’s immigration policies

When he was campaigning for the presidency, Biden promised to reverse the Trump administration’s border policies swiftly. But he walked back that promise later to prevent a rush on the southwestern border. He said he probably would need six months to rebuild a system for processing the migrants.

Biden was afraid that changing the previous administration’s policies immediately would lead to having 2 million migrants on the border: “It will get done and it will get done quickly but it’s not going to be able to be done on Day 1.”

But on Day 1, Biden:

• Rescinded the Muslim travel ban;
• Revoked Trump’s enforcement priorities that had made virtually every deportable migrant a target for immigration enforcement;
• Declared a 100-day pause on removals;
• Terminated border wall construction; and
• Suspended enrollments in the ‘Remain in Mexico Program’ (MPP).

Why did he do this? He knew what would happen.

Apprehensions of illegal crossers at the southwestern border hit 1.7 million in fiscal 2021, the highest in more than 60 years; and more than 1 million additional illegal crossers were apprehended in the first six month of fiscal 2022.

These statistics do not include the “gotaways,” people who were observed making an unlawful entry but were not apprehended. There have been around 300,000 gotaways so far in fiscal 2022.

Biden’s handling of the MPP is another example of puzzling policy.

Four months after his Day 1 suspension of new enrollments in that program, Biden issued a memorandum terminating it. In August 2021, a federal district court held in Texas and Missouri v. Biden that the MPP termination did not comply with the provisions in the Administrative Procedure Act (APA) and that it was causing the administration to violate the mandatory detention provisions in INA section 1225.

The court issued a nationwide injunction ordering the administration to: “enforce and implement MPP in good faith …. until such a time as the federal government has sufficient detention capacity to detain all aliens subject to mandatory detention under Section 1255 without releasing any aliens because of a lack of detention resources.” 

Biden wants to terminate MPP, but he has not increased DHS detention capacity — in fact, he intends to cut more than 25 percent of the bed capacity at existing facilities, according to his budget request for the next fiscal year.

Why isn’t Biden complying with the detention requirement in the injunction so he can terminate the MPP?   

The latest puzzling decision occurred earlier this month when Biden terminated the Title 42 order that permits CBP to expel illegal crossers without the processing ordinarily required by the immigration law provisions in Title 8 of the U.S. Code. The termination, however, will not be effective until May 23.

Susan Rice, Biden’s top domestic policy adviser, and other senior officials have argued Title 42 is needed to protect border communities from COVID-19, to avert mass releases of migrant adults, and to lessen the political pressure from high levels of border arrests.

Sen. John Cornyn (R-Texas) said on Twitter that, “Dropping Title 42 without other changes in border policies will produce a tsunami of migrants & drugs.” 

DHS officials are preparing for the possibility of as many as 18,000 border apprehensions per day when the order is lifted.

Also, an increasing number of Democrats in Congress say that termination of Title 42 should be paused. 

According to Sen. Gary Peters (D-Mich.), who chairs the Senate’s Homeland Security Committee, Biden’s decision to end the border policy by May 23 “should be revisited and perhaps delayed” until there’s a “well-thought-out plan” to end the rule.

DHS has released a fact sheet on its preparations for a potential increase in migration, and DHS claims that it is not revealing all of its preparations. I don’t know what the secret preparations are, but I do know that Biden’s border security measures have been grossly inadequate so far.

The major provision in the fact sheet is a new immigration process that will require hiring and training many additional USCIS asylum officers to adjudicate asylum claims. But a senior administration official told reporters that the process isn’t expected to start until late May or June, and that they do not expect to put many migrants in the program in the first months of its implementation.

The plan also calls for a dedicated docket for families who are apprehended after making an illegal border crossing. This has been tried before by two previous administrations — with much smaller immigration court backlogs — and it failed both times.

Possible explanation

In November 2021, the Wall Street Journal described two separate camps in the White House, and claimed that each is attempting to pull the strings on immigration enforcement.

On the one side are Chief of Staff Ron Klain, National Security Adviser Jake Sullivan, Senior Adviser Cedric Richmond, and Susan Rice, the domestic policy adviser. They advocate strategies to deter unlawful crossings.

The other side includes many of the president’s campaign advisors, who “now occupy several top immigration-policy jobs at the White House, the Department of Homeland Security and the State Department.” They claim that deterrence does not work. They want to overhaul the immigration system to resolve requests for asylum faster, give asylum seekers the ability to apply from their home countries, and create more legal immigration pathways.

Many White House aides have left, frustrated by what they describe as repeated fights with the president’s most senior advisers over these issues.

The most recent battle reportedly has been over whether to withdraw the Title 42 order. 

Biden and his top aides have hesitated on account of concern that lifting the restriction will invite even more migrants to the southwest border. This has been maddening to the immigration advocates who came to the White House to help Biden to dismantle Trump’s policies.

According to Cecilia Muñoz, who served as the top immigration adviser to former President Barack Obama, “Some advocates have not grappled with the difference, if any, between their position and an open-borders position. And an open-borders position is anathema in the country.”

This situation has resulted in Biden being pulled in different directions by the people who are supposed to be finding ways to implement his policies. I think this is why his immigration measures are having serious unintended consequences.  

Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow him at https://nolanrappaport.blogspot.com