Has Biden Done Enough to Reform Immigration Policy?

Despite President Biden’s campaign promise to address the “Trump-created humanitarian crisis at our border,” he has struggled to undo some of the more egregious policies and their headline-grabbing consequences that were a hallmark of the previous administration.

One of the Biden administration’s early actions was officially ending the Trump administration’s “zero tolerance” policy on January 26, 2021; the 2018 policy enabled the Department of Justice to prosecute all adults who were apprehended crossing the border illegally, with no exceptions for people seeking asylum or those with children. This resulted in close to 4,000 children being separated from their parents at the U.S.-Mexico border. After public outcry, Trump issued an executive order that purported to end the family separations, and the Biden administration later created a task force to reunite families that were still separated.

However, “contrary to what the Biden administration has committed to, family separation is still happening,” said Kassandra Gonzalez, a Manne Family Fellow with the Beyond Borders program at the Texas Civil Rights Project. The Texas Civil Rights Project is currently working with families who have been separated from their children; this can happen, according to Gonzalez, “when people don’t look like a family unit, e.g., a grandmother or aunt or cousin with a young child, or if there is a criminal history. But a criminal history can often exist because someone has tried to re-enter the U.S. to assert an asylum claim or there is some other minimal criminal offense.”

President Biden signed an executive order during his first few days in office to “review and assess” another controversial Trump administration anti-immigrant initiative, the “Remain in Mexico” policy, under which asylum seekers were forced to wait along the southern border in dangerous and unsanitary makeshift encampments while their claims were being processed. The program was terminated on June 1, 2021. However, a Texas judge issued an injunction blocking the termination. “When the Biden administration ended the [Remain in Mexico] program, they made a good effort to process people under the policy and to coordinate with local and international groups,” said Daniella Burgi-Palomino, co-director of the Latin America Working Group. “But their hands were tied once there was a court order forcing them to reinstate the policy last summer.”

Because of the court order, the Biden administration reimplemented the program last December. Although it pledged to do so “in a way that enhances protection for individuals,” research by Human Rights First, an international human rights organization, found that a “vast majority … were unable to find lawyers,” according to its report Fatally Flawed: “Remain in Mexico” Policy Should Never Be Revived, and “less than four percent of completed … cases have resulted in asylum or other relief granted by the immigration courts.” And people continued to be victims of rape, kidnappings, and violent assaults “after[the Department of Homeland Security] returned them to Mexico.”

The Supreme Court finally ruled on June 30 that the Biden administration could end the program. But it wasn’t until August that the ruling was certified and a judge lifted the court order that had been in effect since last December. “There are still 4,000 to 5,000 people enrolled in the program, and they need to show up for their court hearings to be disenrolled from the program,” said Rachel Sheridan, litigation counsel at the Tahirih Justice Center, which serves immigrant survivors fleeing gender-based violence. “But a lot of people aren’t aware of the disenrollment process and are hard to reach because they are in unstable housing, makeshift shelters, and often unsafe conditions. People returned to Mexico are vulnerable to atrocities such as rape, kidnapping, and extortion. It is cruel and inhumane that we have forced people seeking asylum to wait in these conditions.”

Advocates are also critical of the Biden administration for not immediately ending the Title 42 expulsions of both asylum seekers and migrants. In March 2020, the Trump administration implemented Title 42, a provision of the U.S. health law that allows customs officers to prohibit people from entering the U.S. to curtail the spread of communicable diseases. According to the American Immigration Council’s Guide to Title 42 Expulsions at the Border, this was an effort by the administration to use the COVID-19 crisis to “achieve its long-standing goal of shuttering the border to asylum seekers.” Although an exemption for unaccompanied minors was made in February 2021, the Biden administration waited until this spring to lift the policy. But a federal court in Louisiana blocked the attempt before it was to set to take effect on May 23. The administration is appealing the decision.

Title 42 “never had anything to do with public health,” said Julia Neusner, research and policy associate attorney for refugee protection at Human Rights First. “Because the Biden administration waited [to end the policy], thousands of people were trapped in danger at the border and political opposition mounted that could have been avoided if they had gotten rid of it immediately. Because Title 42 blocks access to asylum at ports of entry, it’s a huge boon for criminal smuggling organizations who control border crossings, because people need to get to U.S. soil to seek asylum. We saw when the administration admitted 20,000 Ukrainians at the border that they are capable of treating asylum seekers humanely and mobilizing the resources to process them quickly and safely at ports of entry.”

Instead, “the [U.S.-Mexico] border is still closed to asylum seekers,” said Burgi-Palomino. “But the Biden administration could be making more use of exemptions and allowing more people in who are especially vulnerable, such as women, LGBTQ+ people, people with medical conditions, etc., like they did with Ukranians.”

Some advocates point not only to a system that is so broken by the Trump administration but also to other factors that are beyond Biden’s control. “Despite the Biden administration's attempts to revamp the immigration process, the Trump administration's decimation of the infrastructure of immigration agencies and the COVID pandemic, plus the complex structure of the U.S. resettlement program, has made it difficult to implement changes,” said Andrea Tanco, associate policy analyst and strategic advisor to the president of the Migration Policy Institute.

The Biden administration has increased the number of refugees who will be allowed into the U.S., which “does help … because that allows the federal government to assign resources to be able to process more people at the borders, and there is a huge backlog of applications,” said Tanco, co-author of the report Humanitarian Pathways for Central Americans: Assessing Opportunities for the Future. “As a result of the Remain in Mexico policy and Title 42, 60,000 people have been waiting up to three years along the U.S.-Mexico border under terrible conditions. The Biden administration is in an unwinnable situation, and when they have tried to undo these harmful policies, states that aren't even on the border have challenged them in court. Plus, there is not one agency that is a champion for immigration, instead there are multiple agencies. The devil is in the details.”

Some advocates, however, remain “completely let down by the Biden administration,” said Gonzalez. “I was so filled with hope when Biden was elected, and the last year has been disheartening. It has been a lot of talk by the Biden administration and very little action. It’s time for them to start fulfilling the promises that were made during the campaign.”

Despite these promises, currently there is no asylum processing at ports of entry on the U.S-Mexican border. Additionally, there are “more than one million undocumented immigrants who have been allowed into the country temporarily after crossing the border during President Biden’s tenure,” according to The New York Times. “Many…are hoping for asylum — a long shot — and will have to wait seven years on average before a decision on their case is reached because of the nation’s clogged immigration system.”

Although there are many roadblocks to achieving a truly humanitarian process for people seeking asylum and migrants, the Latin America Working Group’s 2022 Action Plan calls for “restoring access to asylum at the U.S.-Mexican border, holding the Department of Homeland Security accountable for its treatment of migrants at the border and abuses by agents” among the steps that the administration could be taking. "Since Congress passed the Refugee Act in 1980, not one administration has prioritized the needs and lives of people seeking asylum,” said Richard Caldarone, litigation counsel at the Tahirih Justice Center. “They have all prioritized deterrence.” Time is running out for the Biden administration to be the exception.