Joe Biden shouldn’t want to begin his administration with a renewed migrant crisis at the border, but that’s what his priorities risk creating.
After many false starts — including the zero-tolerance policy that drove family separations — the Trump administration got a handle on the border thanks to its “remain in Mexico” policy and “safe third country” agreements with Guatemala, El Salvador, and Honduras.
These initiatives closed an enormous loophole in the U.S. asylum system — undeserving asylum-seekers were able to gain access to our country, stay here for years while their claims worked their way through overwhelmed immigration courts, and remain even after their claims were denied because we lack the capacity (or will) to track and deport them. This running, de facto amnesty served as a powerful magnet for migrants from Central America.
But the Trump administration managed to get Mexico to agree to the so-called Migration Protection Protocols. This meant that asylum-seekers from countries other than Mexico could be made to remain in Mexico while their claims were adjudicated in the U.S. Also, under the safe-third-country agreements, asylum-seekers could be sent to Guatemala, El Salvador, or Honduras (whichever wasn’t their home country) to apply for asylum there. The theory was that if they were genuinely persecuted in their own country rather than simply seeking to come to the United States, they’d be satisfied to apply for asylum in some other nearby country; as it turned out, not surprisingly, most simply chose to go home when they realized an asylum claim wasn’t a ticket into the United States.
On top of all of this, the Trump administration began to tighten up on the lax way that asylum rules have been interpreted. Under the law, someone is supposed to be eligible for asylum only if he is targeted for persecution because of his race, religion, nationality, membership in a particular social group, or political opinion — a definition that shouldn’t apply to economic migrants or people who fear domestic or gang violence.
Biden is pledging to destroy this entire architecture, and his aides have been telling reporters that this is exactly what he will do. The rollback will court another border crisis that even the most migrant-friendly administration will be hard-pressed to manage (many of the photographs of cages at the border that spread on social media to condemn Trump’s policies actually dated from the Obama years). Biden also may bring into the U.S. the tens of thousands of asylum-seekers currently waiting in Mexico, which, barring stringent controls, would likely lead to them staying here forever.
The first question confronting Biden will be whether to overturn the so-called Title 42 processing that the Trump administration has been using, citing public-health grounds to quickly return migrants coming over the border from Mexico. With the agreements with Mexico and Central American in suspended animation during the pandemic, Title 42 is necessary stopgap that Biden will come under intense pressure from pro-immigration groups to reverse.
Biden’s immigration agenda isn’t, of course, limited to the border. He has said that he will issue a 100-day freeze on deportations, a reckless measure that will stop ICE from deporting illegal immigrants upon their release from state and local jails. Biden obviously has every intention of gutting interior enforcement just the way the Obama administration did.
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