The Biden administration will soon implement a policy that will “encourage migrants to avail themselves of lawful, safe, and orderly pathways into the United States, or otherwise to seek asylum or other protection in countries through which they travel, thereby reducing reliance on human smuggling networks that exploit migrants for financial gain.” One could be forgiven for thinking that this regulation, slated to go into effect in mid-May, expands access to the asylum process. In fact, it does the opposite. The new policy “encourages” lawful pathways by further criminalizing the most common existing pathways. Once the rule goes into effect, anyone who passes through another country on their way to the United States and crosses the border between official entry points will be deemed ineligible for asylum unless they applied for asylum in that other country first. There are a few exceptions, but the new policy will affect virtually all non-Mexican nationals who arrive at the border.
Migrants can still ask for asylum at ports of entry, but the Biden administration recently made that process harder as well. Since January, all asylum seekers are required to schedule appointments with Customs and Border Protection via the CBP One app rather than going to the port of entry and asking for protection. CBP One limits access to asylum to people who have smartphones; can read English, Spanish, or Haitian Creole, the only languages in which the app is available; and can spend days or weeks checking the app for available appointments and weeks or months on top of that waiting for an interview date. Migrants who manage to clear these hurdles have to contend with a glitchy app that crashes often and that, advocates say, fails to recognize darker skin tones (migrants have to submit “video selfies” with their applications).
Put in the simplest terms possible, Biden made it harder for migrants to ask for asylum at official border crossings and is now trying to punish them for crossing between ports of entry. In doing so, the administration is enshrining several Trump-era border policies—even though, three years ago, Biden promised to undo the damage that Trump had done to the immigration system. It’s Republican restrictionism dressed up in the technocratic, social-justice-inflected language that has become endemic among Democrats of a certain type.
“To be clear, this was not our first preference, or even our second,” an administration official told reporters in late February. The official added that Congress’s inability to pass an immigration-reform bill forced the president’s hand. But Congress hasn’t passed any immigration laws in decades, and that didn’t stop Trump from his first- and second-choice immigration policies: building a wall, banning travel from Muslim-majority countries, and limiting asylum at the border.
Biden kept Title 42 in place, which since the onset of the pandemic has let border officials rapidly “expel” migrants to Mexico, ostensibly on public health grounds. Now that the pandemic emergency is set to end, and with it the pretext for Title 42, he’s bringing back two other restrictions: the third-country transit ban, imposed by Trump in 2019, which made anyone who passed through another country en route to the US ineligible for asylum; and metering, a practice by which CBP officers limited the number of people allowed to ask for asylum at ports of entry. Administration officials have argued that these are needed to manage the projected surge in asylum seekers once Title 42 ends in mid-May, estimating that border apprehensions may reach 13,000 a day.
A three-judge panel declared the transit ban illegal in 2020, not because Trump lacked authority to impose such a policy but because the administration violated the Administrative Procedure Act by failing to go through the customary notice-and-comment period. Time and time again, the Trump administration’s downfall was not its brutality but rather its incompetence.
For Biden and his advisers, it all comes down to optics. “Electoral politics trump values when it comes to access to asylum,” an anonymous administration official told the Los Angeles Times. “The desire to keep the border quiet resulted in compromising what I previously thought were deeply held Democratic beliefs.” In late 2021, several high-profile officials left the Biden administration. Some had signed on to undo Trump’s immigration policies, only to find themselves stymied by more senior officials. Andrea Flores, a young staffer, told The New Yorker that her policy recommendations were ignored because top White House officials “do not want to hear about more people coming in.”
What Biden apparently failed to consider is that he’s not winning anyone over by embracing Trump’s immigration policies. In her memoir about her time in the Obama White House, Flores recalled working on an immigration-reform bill during Obama’s second term. Democrats agreed to fund an additional 20,000 Border Patrol agents in exchange for a path to citizenship for 11 million undocumented people, but the bill failed anyway. “No amount of harsh enforcement from Democrats would convince Republicans,” Flores wrote. A decade later, it appears that Biden’s senior advisers still haven’t learned that lesson.
