What Biden is doing differently from Trump on immigration
Note on August 1, 2021: I originally published this article on March 7, and I have updated it today.
Biden has signed an executive order directing the secretary of homeland security to review some of Trump’s punitive anti-asylum policies. There are a number of reasons that this order will not immediately undo Trump’s asylum policies, including that some would need to be undone by an agency issuing a formal rule-making report, and that others are “subregulatory” and so more difficult to undo through the rule-making process.
Biden signed another executive order affirming the DHS announcement that no new asylum seekers would be placed in Trump’s Remain in Mexico program. As noted below, the border is still effectively closed to new asylum seekers. Since this executive order was signed, Secretary of Homeland Security Alejandro Mayorkas announced a program that would allow asylum seekers already enrolled in this policy to have their applications to enter the United States processed. As of March 1, a total of more than 700 asylum applicants have been processed into the United States from three Mexican cities near the US-Mexico border. Biden formally ended the Remain in Mexico policy on June 1 and expanded the number of asylum-eligible migrants previously banned from applying for asylum under the policy later that month. As of June 22, over 11,000 migrants who had been banned from applying for asylum in the United States under the Remain in Mexico policy had been granted asylum and admitted to the United States due to Biden undoing that policy.
Biden has, however, continued to expel most migrants and asylum seekers who attempt to cross the southern border because Biden is still enforcing Trump’s Title 42 pandemic policy, although he did end the practice of expelling unaccompanied minors under this policy. That the Biden administration is still following this policy has been made clear by both White House Press Secretary Jen Psaki and Secretary of Homeland Security Alejandro Mayorkas. Clearly, Biden should stop enforcing this policy as soon as possible, as has been recommended by numerous epidemiologists, public health experts, and human rights organizations. However, it appears that there may be logical reasons for Biden’s hesitancy to reopen the border. As the New York Times noted in February, “Mr. Biden’s government is wary of flinging open the border until it has rebuilt an asylum and refugee system that can process potentially large influxes of people.” More recently, amid ongoing criticism and calls for the policy to be lifted, the Biden administration announced plans to exempt families from the policy. Many of the activists who have been critical of the administration for not lifting the policy were nevertheless glad that this administration is making efforts to carve out more exceptions to it. Thus far, exceptions to Title 42 expulsions under Biden have included unaccompanied children, some single adults, and many families.
Biden signed an order ending Trump’s bogus declaration of a “state of emergency” at the US-Mexico border. This halted further construction of the border wall using non-Congressionally-approved funds, which had previously been happening because President Trump illegally diverted money from unrelated government agencies to fund construction of this unnecessary and racist wall.
Biden ended Trump’s “Muslim Ban” through a presidential proclamation, signaling that he will rely instead “on the existing strength of the system in place to make judgments — in our embassies around the world and at points of entry — to determine the suitability and security of an individual entering the United States.”
Biden signed an executive action narrowing immigration enforcement within the United States to focus on violent offenders, in contrast to Trump broadening such enforcement to include all undocumented immigrants.
Biden signed a proclamation sending a clear message of support for DACA, which Trump repeatedly tried to undermine.
Biden signed an executive order undoing Trump’s demand that the US Census violate the precedent set throughout its entire history by not counting undocumented immigrants in the 2020 census.
Biden created a task force to reunite children who were separated from their parents by Trump’s zero-tolerance immigration policy. This policy led family separations to occur on a regular basis and therefore much more frequently than under previous administrations. Some people may dismiss the significance of creating a task force and argue that it does not constitute a material change in family separation practices, or a successful reunification of such families. However, this is not all Biden has done on this front, as Lawfare noted in a recent article on Biden’s immigration executive actions (which I used extensively as a source for this post):
Since taking office, the Biden administration has reunited 105 families, a promising sign that there is infrastructure in place for the task force to reunite the hundreds of families that remain separated. This order also paves the way for redressing the harms faced by thousands of families, a move immigrant advocacy groups have been urging from Biden. By opening the possibility of immigration relief to affected families, Biden demonstrates a commitment to protecting immigrants’ rights, providing families with stability and security, and not retraumatizing families through immigration proceedings. Further, the explicit mention of mental health and trauma services represents an acknowledgment of the well-documented severe and enduring psychological harm that family separation has caused to the affected families, as well as the developmental effects on the children.
The Biden administration intends to release migrant parents and children from custody within 72 hours of their arrival into the United States. The New York Times notes that this is “a new policy that already is being carried out along the Texas border” and “a significant departure from the handling of migrant families under the Trump and Obama administrations, when children often showed symptoms of depression and trauma after spending long periods in custody with their parents.”
Biden ended a Trump administration policy that had allowed immigration enforcement agents to collect information about the immigration status of individuals who cared for unaccompanied migrant children. This should remove the threat of deportation from the parents of such children if the parents were undocumented and wanted to regain custody of their children from a border facility.
An article published by the Migration Policy Institute on April 26 noted:
“Biden’s actions have in some ways gone beyond what he promised to do in his first 100 days, and in other ways fallen short. On the campaign trail he promised 26 discrete immigration actions during his first 100 days, according to MPI’s count. But the administration has achieved just 12 of these, leaving unfinished the task of chipping away at restrictions on asylum, among other measures.”
