It is hard to overstate the potentially destructive impact of the sweeping changes to U.S. immigration policy currently being discussed as part of President Joe Biden's negotiations with Republicans over aid to Ukraine and Israel.
For weeks, Republicans have been demanding that Democrats adopt a new, tougher border policy between the United States and Mexico in return for their support for a range of foreign aid. The White House has reportedly admitted to significantly rolling back America's historic commitments to asylum seekers and introducing a new system to crack down on undocumented immigrants already in the US. This reflects the policies pursued by former President Donald Trump during his time in office – explicitly in his intention to reduce the rate of immigration to the US, including legal immigration. The fact that a Democratic administration would even consider this shows how successful Republicans have been in changing what is politically acceptable in the area of immigration in recent years.
“It is shocking that the Biden administration would agree to this, but it appears they are considering this for political reasons. It's very sad,” said Lee Gelernt, deputy director of the ACLU's Immigrants' Rights Project.
Multiple reports suggest the White House is poised to introduce new legal authority that would allow the U.S. to quickly expel migrants arriving at the border without processing their asylum claims. The new legislation would be similar to the Trump-era Title 42 policy, which operated on the basis of temporary containment of the spread of Covid-19, but without the pandemic-related justification – and permanent.
The Biden administration has also reportedly said it would support expanding an existing legal authority called “expedited removal” to quickly and without a hearing deport undocumented immigrants who fail to apply for asylum or fail the initial asylum review. Under the expansion, the U.S. would be able to subject immigrants to expedited deportation anywhere in the U.S., beyond the 100-mile area of the border where the authority currently applies.
In addition, the White House has reportedly said it would be willing to order the detention of migrants while they await their court date in the United States, a process that typically takes months or years. And some administration officials and Senate Democrats have said they would be willing to raise the standards for passing a so-called “credible fear” interview, one of the first steps in applying for asylum. Anyone who fails a credible fear interview can expect expedited removal.
For its part, the White House has denied having taken a specific position on these proposals. “The White House has not signed any specific policy proposals or final agreements, and reports attributing specific policy positions to the White House are inaccurate,” a White House spokesperson told Politico.
But a number of Democrats – particularly those in border counties and swing seats – agree that securing the border is necessary as immigration authorities recorded 2.4 million encounters with migrants at the southwest border in the last fiscal year, up from 1.7 million in the last fiscal year Year 2021 “We have a crisis at the border,” Sen. Mark Kelly (D-AZ) told the Hill. “It is crucial that we get this done. It is also crucial for Ukraine.”
But these measures, being considered without input from many members who have fought for immigrant rights, go much further. If passed, they would be among the most anti-immigrant laws in 30 years. Additionally, many experts say they will actually fail to stop migrants from entering the United States.
“A return to Trump-era policies is not the solution,” said Senator Alex Padilla (D-CA) – the first Latino chair of the Senate Judiciary Committee’s Subcommittee on Immigration, Citizenship and Border Security – in a press conference earlier week. “In fact, it will make the problem worse. Mass incarceration, destruction of our asylum system, Title 42 on steroids. It’s unconscionable.”
Biden is considering making pandemic-related border restrictions permanent
While Biden has taken some steps to expand immigration during his time in office, including expanding Temporary Protected Status and humanitarian parole programs to a number of new countries, he has also shown a willingness to adopt his predecessor's tough policies. For example, even though Biden came into office promising to roll back Trump's anti-immigrant policies, he chose to keep the Title 42 policy in place for more than two years. And he did so even as the pandemic subsided, lawsuits against the policy mounted, a senior administration official cited the policy in his resignation, and the policy became a political flashpoint on the left. Now he seems ready to not only revive it but also enshrine it in federal law.
With some limited exceptions, the policy effectively blocked migrants arriving at the southern border from legally entering the United States. Instead of being assessed for asylum and other humanitarian protections that would allow them to remain in the United States, as is their right under international and current U.S. law, migrants were sent back to Mexico within hours of crossing the border.
Reinstating that policy would be tantamount to the U.S. abandoning its post-World War II promise never again to send people into harm's way without a hearing, Gelernt said. The Biden administration has made efforts to work with Latin American countries to improve their security and strengthen their own asylum systems. However, human rights organizations have documented the harm suffered by migrants who have been returned or forced to remain in some of these countries. For example, Human Rights First reported that over 1,300 people have experienced kidnappings, torture, rape, extortion and other violence while stranded in Mexico due to the Biden administration's policies since mid-May. Still, the Biden administration defends its ongoing policies detaining migrants in Mexico and its decision to maintain Title 42 for so long as an important tool to keep the border under control.
But immigration experts say Title 42 has never helped reduce the number of people arriving at the border. When Title 42 was in effect, it actually resulted in more people making repeated attempts to cross the border, and therefore historically high numbers of migrant encounters at the border. In that sense, even if Biden allowed it to temporarily keep them out, it couldn't stop people from coming.
“Ultimately, it will not stop the flow of people seeking shelter here, because we know from experience that people who are desperate will come, regardless of U.S. policy.” We know that from experience and from the uniform View from experts,” said Gelernt.
Biden is considering expanding immigration enforcement far beyond the border
The proposals under discussion do not just concern the border. They would significantly tighten immigration enforcement within the U.S. — something Trump had planned to do in a second term — by expanding expedited deportations and mandating the detention of immigrants.
Under current rules, the government can expedite migrants deport them within days without seeing a judge or lawyer if they were arrested within 100 miles of a land border within two weeks of their arrival. Trump issued a rule in 2019 that expands who can be subject to expedited deportation, allowing immigrants found anywhere in the U.S. to be deported if they arrived within the last two years.
Trump's rule was repealed by the Biden administration in March 2022, with the Department of Homeland Security arguing that expedited deportations “as a means of border enforcement are best focused on new arrivals encountered in close proximity to the border… rather than individuals arriving in throughout the United States.” States without geographical restriction that may have developed significant community ties.”
For some inexplicable reason, Biden now appears ready to reverse course. However, it is not clear whether Biden is considering using expedited deportation on people staying in the US for more than two weeks, as Trump has done.
“We are talking about accepting immigrants into the interior of the country. It could be anywhere… to detain and deport them within 48 hours without a hearing,” Gelernt said. “I think if you ask most people: Is America doing this? They would say: Of course not. This is completely contrary to our values.”
Additionally, the administration is considering mandatory immigration detention for at least some, if not all (details to be announced) of immigrants awaiting their court date. This would represent a significant shift from the administration's current policy, under which U.S. Customs and Border Protection detains migrants for less than 72 hours, screens them and releases them unless they are in the small group that has a high risk has been identified. Most immigrants never enter U.S. Immigration and Customs Enforcement detention centers, which do not have enough beds to accommodate a massive influx of detainees in the event of such a warrant.
Not only does this make the policy proposal impractical, but government regulators have documented widespread abuses and inhumane conditions at some immigrant detention facilities, many of which are owned and operated by private contractors.
“It is also inhumane to detain asylum seekers who are already traumatized by the danger they fled,” Gelernt said.
Biden is considering making it more difficult to apply for asylum
Some Democratic negotiators have reportedly said they are willing to raise the legal standard for “credible fear of persecution” – which migrants must demonstrate during their initial screenings in order to move forward in the asylum process.
If a migrant enters the United States without authorization and expresses fear of persecution in their home country, a U.S. Customs and Border Protection officer will first decide whether to refer them to a U.S. Citizenship and Immigration Services asylum officer to process them to undergo a credibility test. Fear interview. In this interview, migrants must demonstrate that they have a credible fear of persecution in their home country or a “well-founded fear of persecution or harm based on their race, religion, nationality, membership of a particular social group,” or political opinion when entering their country will be returned.”
The Trump administration had proposed changes to the credible fear interview process that would make it much more difficult for asylum seekers to pass the credibility test. It's not clear whether the changes Biden is considering would be similar, and it's not clear who among White House and Senate negotiators has advocated for them.
The problem with raising the standard is that the process already places an enormous burden on migrants, who find themselves in a difficult situation and may not have legal representation, to be able to present their case immediately and clearly. Migrants are asked about previous experiences of persecution, torture or harm. why they might fear such damage in their home countries in the future; who they fear might do them this harm; and any other experiences that could endanger them. Raising the standards for passing a credible fear interview would mean that the U.S. would accept the expulsion of people with credible asylum claims.
“When people come here, they are tired, they are afraid, they are vulnerable. There are language difficulties. “They also have no sense of immigration law or what is required of them,” Gelernt said. “It’s hard enough.”
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