Originally Published in Vox
Nicole Narea - December 8, 2020
Dismantling Trump’s policies that put up a wall to the asylum system is an immense task.
The border has been the focal point of President Donald Trump’s restrictionist immigration agenda. Beyond erecting more than 400 miles of border wall, he has put up elaborate barriers to asylum and humanitarian protections that have largely escaped widespread public scrutiny, with the exception of his policy of separating migrant families.
Unraveling these policies will prove to be an early test of President-elect Joe Biden’s commitment to not only dismantling Trump’s nativist immigration legacy but also improving on the Obama-era approach to immigration enforcement, which involved record deportations and an expansion of family detention.
The task before Biden is immense. Trump has limited how many asylum seekers can be processed at the border daily and forced thousands of migrants to wait in Mexico for a chance to have their day in court in the US under the “Remain in Mexico” policy, officially known as the Migrant Protection Protocols (MPP).
He has brokered agreements with Central American countries that have allowed the US to send asylum seekers back to those countries and enacted secretive programs that allow immigration officials to rapidly process and deport asylum seekers.
He has issued rules preventing drastically narrowing the circumstances under which people are eligible for asylum. And he has invoked the pandemic as a means of expelling tens of thousands of migrants, including unaccompanied children.
That framework of interlocking policies has been effective in keeping out all but the minuscule number arriving on the southern border. But Biden has vowed to reverse most of those policies and pursue reforms that would better facilitate the humane and orderly processing of asylum seekers.
Biden can make big strides quickly, taking administrative actions immediately after assuming office to end policies such as MPP. But some Trump policies — especially those promulgated by regulation or subject to ongoing legal challenges — could prove more time-consuming to roll back, involving additional procedural and logistical challenges.
“The president-elect has been very clear that he intends to roll back many of these policies and restore the rule of law by honoring America’s obligations under US and international law to provide refuge to people fleeing persecution,” Tom Jawetz, vice president of immigration policy at the Center for American Progress, said. “Doing this will require not only careful planning and close coordination by governmental and nongovernmental actors but also swift reversal of the changes that the Trump administration made to distort and destroy US asylum law.”
Undoing Trump’s policies is Biden’s first priority
Some of Trump’s restrictive policies on the border will be easier to undo than others.
Upon taking office, Biden will be under pressure to quickly dismantle MPP, which was created by a policy memo in January 2019 that could easily be rescinded. But it’s unclear what would happen to the more than 67,000 migrants who are currently enrolled or were previously subject to the program, including those who continue to wait in encampments along the US-Mexico border to be called in for their court dates in the US. Before the pandemic, they would often have to wait months for a hearing. Since March, the Trump administration has suspended all their hearings indefinitely on account of Covid-19.
The American Immigration Lawyers Association has proposed that the incoming Biden administration grant temporary humanitarian parole to those subject to MPP, allowing them to enter the US and later apply for more permanent immigration benefits, including asylum. But Biden has yet to elaborate on how he would process MPP asylum seekers.
While Biden can take action on MPP immediately, unraveling Trump’s regulatory scheme, including his regulations drastically limiting asylum eligibility for migrants arriving on the border, will likely be a months-long process.
The Biden administration would have to issue new regulations to rescind any of the regulations Trump has finalized, including likely going through the burdensome process of giving the public notice and the opportunity to comment. It could also try to revise regulations subject to ongoing litigation through a court settlement. Those regulations include one that limits asylum seekers from obtaining work authorization while they wait, sometimes for months, for their application to be processed.
The Biden administration could also invoke the Congressional Review Act, which allows lawmakers to reverse regulations that were enacted in the last 60 working days of Congress, which extends back to March. That could cover Trump’s final regulation expanding the groups of crimes that make people ineligible for asylum, including convictions for drug possession and having a fake ID.
Trump used the Congressional Review Act to overturn a total of 16 Obama-era regulations when he first took office. However, using the act requires passing a joint resolution in both chambers of Congress, which could be difficult if Democrats don’t have control of the Senate.
Advocates have also called on Biden to withdraw regulations denying asylum to people who travel through another country before arriving in the US or who apply for asylum between ports of entry, which have been blocked by federal courts, as well as a proposed rule that would vastly expand immigration officials’ authority to turn away asylum seekers.
The question remains, however, whether Biden would prioritize enacting all of these changes during his first 100 days while he is juggling competing priorities, including the pandemic response and economic recovery. CNN reported that the Biden team is overwhelmed by the prospect of unraveling Trump’s policies at the border — the legacy of Trump’s senior adviser and immigration hardliner Stephen Miller.
“They’re realizing that they have two months to figure out a really complicated mess of things,” a source familiar with the transition told CNN. “People are really overwhelmed trying to figure out the sheer issues, the sheer number of pieces you have to coordinate. This is the genius of Stephen Miller.”
It’s not clear how Biden will tackle Trump’s pandemic-related border restrictions
While Trump had made obtaining asylum near-impossible before the pandemic, he invoked Covid-19 as a means of shutting the door on virtually all asylum seekers arriving on the southern border.
The Trump administration began expelling migrants to Mexico in March under Title 42, a section of the Public Health Safety Act, that allows the US government to temporarily block noncitizens from entering the US “when doing so is required in the interest of public health.” It largely replaced other policies as the Trump administration’s primary means of keeping out migrants amid the pandemic, resulting in the expulsions of more than 250,000 people from March through October and effective until the director of the Centers for Disease Control and Prevention determines that the further spread of Covid-19 has “ceased to be a serious danger to public health.”
Biden has left open the possibility of maintaining the Title 42 program at least temporarily. But it’s not clear that there remains a legitimate public health rationale for keeping the policy in place, given that the level of community transmission inside the US is already so high.
Immigrant advocates have argued that the US can continue to protect vulnerable immigrants without adverse consequences to public health. Jennifer Podkul, the vice president of policy and advocacy at the legal aid group Kids in Need of Defense, said in a press call that the administration could at least create exceptions for particularly vulnerable classes of migrants.
By court order last month, unaccompanied children, for example, can no longer be expelled under the policy. But at least 13,000 such children had already been deported under the policy, often with little if any notice to their parents or legal counsel and even if they showed no symptoms of the virus. Others had been held in hotels along the border for extended periods under the program.
Still, the Biden administration might be weighing whether to maintain the Title 42 program as a means of stemming migration temporarily at a time when many Americans support such restrictions. An August NPR/Ipsos poll found that 58 percent of Americans support “banning the entry of asylum seekers and refugees into the US” to curb the spread of Covid-19.
“They’re coming into office in January. It’s highly likely that Covid conditions will continue to be in an emergency state,” Doris Meissner, a senior fellow at the Migration Policy Institute who served as commissioner of what was then called the Immigration and Naturalization Service under the Clinton administration, said in a press call. “So it is possible that we would see a new administration maintain the CDC guidance at the border, at least for some period of time, which would also then gain some time for putting changes into place that allow for a more functional system for granting asylum.”
A surge in migration at the border could present an early challenge for Biden
Under Trump, the migrants arriving at the southern border have primarily been families and unaccompanied children. But once the pandemic hit, immigration authorities observed changing migration flows: Fewer families have been apprehended, and single adults have been attempting to cross the border without authorization multiple times.
In October, CBP apprehended 4,501 families and 57,206 single adults. That’s roughly half the number of families and more than double the number of single adults who were apprehended in the same month in 2019.
Jessica Bolter, an associate policy analyst at the Migration Policy Institute, said in a press call that this shift isn’t likely to last, meaning that the incoming Biden administration should be prepared to address family migration at the border.
But the president-elect also needs to choose his next moves carefully, she added: Migrant flows often respond to changes in US policy, and his administration will likely be looking to avoid encouraging a surge on the border. In the months immediately following Trump’s inauguration, for example, there were record-low apprehensions as migrants waited for a signal of what his policies would be. And before MPP was implemented across the entire border, migrants flocked to sectors where it had yet to go into effect.
“If and when the future Biden administration changes these restrictive policies, it will have to do so with great care and planning, and in a way that balances humanitarian concerns while avoiding a rush on the border that could overwhelm resources and result in a renewed sense throughout the country that the border is out of control,” Bolter said.
It already appears that unaccompanied children are arriving in increasing numbers, which could potentially pose a challenge for Biden if the trend holds. CBP has taken more than 9,900 children into custody since September 8 and apprehended nearly 1,000 unaccompanied children over just six days in late November. The agency has projected in court filings that the flow of unaccompanied children could increase by 50 percent by late March 2021.
While Biden served as vice president, the Obama administration was criticized for its response to the unprecedented influx of unaccompanied children in 2014. Though Border Patrol cannot legally hold such children for more than 72 hours, many children remained in their custody for longer than that or were sent to intermediate detention centers, some of which were temporary facilities on military bases after the government ran out of beds in more suitable facilities.
That is a situation that Biden is aiming to avoid repeating. He has already vowed to “surge humanitarian resources” to the border, including asylum officers who can conduct an initial screening of migrants’ claims for protection, and ensure that US Citizenship and Immigration Services’ asylum division takes the lead on processing their cases to ease the burden on the immigration courts. But some advocates have urged him to go further in empowering asylum officers via regulation to be able to grant asylum as part of their initial interviews, speeding up processing.
“I think they’re going to be worried about a sudden flow of people coming to the border or perception of a border out of control,” Andrew Selee, president of the Migration Policy Institute, said in a press call. “Nothing says more than caravans in terms of public perception.”