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It’s hard to overstate the potential destructiveness of the sweeping changes to US immigration policy currently being discussed as part of President Joe Biden’s negotiations with Republicans over aid for Ukraine and Israel.
For weeks, Republicans have demanded Democrats adopt new, harsher US-Mexico border policies in exchange for their support on a raft of foreign aid. The White House has reportedly conceded to significantly rolling back America’s historical commitments to asylum seekers and implementing a new system to crack down on undocumented immigrants already in the US. These mirror policies that former President Donald Trump — explicit in his intention to reduce US immigration levels, including legal immigration — had pursued while in office. That a Democratic administration would even contemplate them shows just how much Republicans have managed to shift what is politically acceptable on immigration in recent years.
“It’s shocking that the Biden administration would be going along with this, but it appears for political reasons they are contemplating that. It’s very sad,” said Lee Gelernt, deputy director of the ACLU’s Immigrants’ Rights Project.
Multiple reports have indicated that the White House is prepared to implement a new legal authority that would allow the US to rapidly expel migrants arriving on the border without processing their asylum claims. The new legislation would be similar to the Trump-era Title 42 policy, which operated on the grounds of temporarily curbing the spread of Covid-19, but without the pandemic-related rationale — and permanent.
The Biden administration has also reportedly said it would support expanding an existing legal authority known as “expedited removal” to rapidly deport undocumented immigrants who do not request asylum or who fail their initial asylum screenings, without a hearing. Under the expansion, the US would be able to subject immigrants anywhere in the US to expedited removal, beyond the 100-mile perimeter of the border in which the authority currently applies.
Furthermore, the White House has reportedly said that it would be willing to mandate that migrants be detained while awaiting their court dates in the US, a process that typically takes months or years. And some administration officials and Senate Democrats have said that they would be open to raising the standard to pass what’s called a “credible fear” interview, one of the first steps in applying for asylum. Those who do not pass a credible fear interview can be subject to expedited removal.
For its part, the White House has denied that it has taken any particular position on these proposals. “The White House has not signed off on any particular policy proposals or final agreements, and reporting that ascribes determined policy positions to the White House is inaccurate,” a White House spokesperson told Politico.
But a number of Democrats — particularly those in border districts and swing seats — have said they agree securing the border is necessary, as immigration authorities have recorded 2.4 million migrant encounters at the Southwest border in the last fiscal year, up from 1.7 million in 2021. “We’ve got a crisis at the border,” Sen. Mark Kelly (D-AZ) told the Hill. “It’s critical we get this done. It’s also critical for Ukraine.”
But these measures, which are being considered without the input of many members who have fought for immigrant rights, go much further than that. If passed, they would represent some of the most anti-immigrant legislation in 30 years. Moreover, many experts say they won’t actually succeed in deterring migrants from coming to the US.
“A return to Trump-era policies is not the fix,” Sen. Alex Padilla (D-CA) — the first Latino chair of the Senate Judiciary Committee’s subcommittee on immigration, citizenship, and border safety — said in a press conference earlier this week. “In fact, it will make the problem worse. Mass detention, gutting our asylum system, Title 42 on steroids. It is unconscionable.”
Biden is considering making pandemic border restrictions permanent
While Biden has taken some steps to expand immigration during his tenure, including expanding Temporary Protected Status and humanitarian parole programs to a slew of new countries, he’s also shown a willingness to embrace the strict policies of his predecessor. For instance, despite coming into office with a promise to roll back Trump’s anti-immigrant policies, Biden chose to maintain the Title 42 policy for more than two years. And he did so even as the pandemic waned, lawsuits against the policy piled up, a senior administration official cited the policy in his resignation, and the policy became a political flashpoint on the left. Now, he appears willing to not only revive it, but to enshrine it in federal law.
The policy effectively shut out migrants arriving at the southern border from legal pathways to enter the US, with some limited exceptions. Rather than being evaluated for eligibility for asylum and other humanitarian protections that would allow them to remain in the US, as is their right under international and current US law, migrants were returned to Mexico within a matter of hours after crossing the border.
Reinstating the policy would amount to the US turning its back on its promise after World War II to never again send people back to danger without a hearing, Gelernt said. The Biden administration has made efforts to cooperate with Latin American countries to improve their security and bolster their own asylum systems, but human rights organizations have documented the harms experienced by migrants who have been sent back or forced to remain in some of those countries. Human Rights First, for instance, reported that over 1,300 people have experienced kidnapping, torture, rape, extortion, and other violence while stranded in Mexico due to Biden administration policies since mid-May. Despite this, the Biden administration has defended its ongoing policies that have kept migrants in Mexico, as well as its decision to maintain Title 42 for so long, as an important means of keeping the border under control.
However, immigration experts say that Title 42 was never effective in reducing the number of people arriving on the border. When Title 42 was in place, it actually led more people to repeatedly attempt to cross the border and, therefore, historically high numbers of migrant encounters at the border. In that sense, it failed to deter people from coming, even if it allowed Biden to temporarily keep them out.
“It will not ultimately stem the tide of peoples seeking refuge safety here, because what we know from experience is that when people are desperate, they will come, regardless of US policy. We know that from experience and from the uniform view of experts,” Gelernt said.
Biden is considering expanding immigration enforcement well beyond the border
The proposals under consideration don’t just concern the border. They would significantly ramp up immigration enforcement inside the US — something that Trump had planned to do in a second term — by expanding expedited removal and mandating immigration detention.
Under the current rules, the government can deport migrants under expedited removal in a matter of days without seeing a judge or an attorney if they were arrested within 100 miles of any land border within two weeks of their arrival. Trump issued a 2019 rule expanding who could be subjected to expedited removal, allowing immigrants found anywhere in the US to be removed if they arrived within the prior two years.
Trump’s rule was rescinded by the Biden administration in March 2022, with the Department of Homeland Security arguing that expedited removal is “best focused as a border enforcement tool on recent entrants encountered in close proximity to the border … rather than on individuals apprehended throughout the United States without geographical limitation, who may have developed significant ties to the community.”
Inexplicably, Biden now seems willing to reverse course. It’s not clear, however, whether Biden is considering applying expedited removal to people who have been in the US for longer than two weeks, as Trump did.
“We’re talking about picking up immigrants in the interior of the country. It could be anywhere … detaining and deporting them within 48 hours without a hearing,” Gelernt said. “I think if you ask most people, does America do that? They would say, of course not. That’s completely inconsistent with our values.”
Additionally, the administration is weighing mandatory immigration detention for at least some, if not all (details are still emerging), immigrants awaiting their court dates. This would mark a significant departure from the administration’s current policies in which US Customs and Border Protection holds migrants for less than 72 hours, screens them, and releases them unless they are among the small number found to be high risk. Most immigrants never step inside detention facilities operated by US Immigration and Customs Enforcement, which does not have the bed space to accommodate what would be a massive influx of detainees in the event of any such detention mandate.
Not only does that make the policy proposal impractical, but government watchdogs have documented widespread abuses and inhumane conditions in some immigrant detention facilities, many of which are owned and operated by private contractors.
“It’s also inhumane to be detaining asylum seekers who are already traumatized by the danger they fled,” Gelernt said.
Biden is considering making it harder to get asylum
Some Democratic negotiators have reportedly said they are open to raising the legal standard for what constitutes “credible fear of persecution” — what migrants have to demonstrate in their initial screenings to continue in the process of applying for asylum.
If a migrant arrives in the US without authorization and expresses fear of persecution in their home country, a US Customs and Border Protection agent will first determine whether to refer them to an asylum officer in US Citizenship and Immigration Services for a screening known as a credible fear interview. In this interview, migrants have to prove that they face credible fear of persecution in their home country or a “well-founded fear of persecution or harm on account of his or her race, religion, nationality, membership in a particular social group, or political opinion if returned to his or her country.”
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 credible fear screening. It’s not clear whether the changes Biden is weighing would be similar, and it’s not clear who among the White House and Senate negotiators has endorsed it.
The problem with raising the standard is that the process already places an incredible onus on migrants, who are in a difficult situation and may not have legal counsel, to be able to immediately and clearly state their case. Migrants are asked about any past experiences involving persecution, torture, or harm; why they might fear any such harms going forward in their home countries; who they fear might commit those harms against them; and any other experiences that may put them at risk. Raising the standard to pass a credible fear interview would mean that the US would concede to expelling people with credible asylum claims.
“When people come here, they’re tired, they’re scared, they’re vulnerable. There are language difficulties. They also have no sense of immigration law or what is being asked of them,” Gelernt said. “It’s hard enough as it is.”
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