As a candidate Biden promised, and seemed poised early on, to chart a new path toward a more people-centered reform agenda. As president he has taken many hopeful steps, but still leans on deterrence and criminalization to a degree that is concerning.
Biden entered the presidency prepared to take quick action on immigration. His very first day in office, the administration announced a moratorium on most deportations, new enforcement guidelines for Immigration and Customs Enforcement, and halted new enrollments in the controversial Migration Protection Protocol (“Remain in Mexico” program). During the first week new legislation was introduced to provide a path to citizenship for unauthorized migrants living in the United States, expand support to Central America to address the “roots of migration” and re-write visa rules for temporary workers.
Several signs suggest hopeful change in policy toward refugees and asylum-seekers:
The Migration Protection Protocol (MPP) has been formally ended
MPP was one of Trump’s more controversial policies. People seeking asylum in the United States were forced to wait in Mexico for their asylum hearings, ultimately just over 70,000 people. Beginning in April of 2020 these hearings were suspended because of COVID-19. By the time Biden took office, some families had been waiting over two years in Mexico. Human Rights First documented 1,300 victims of violent crimes among those forced to wait in Mexico under MPP.
Following the decision to halt new enrollments in the program in January of 2021, Biden’s new border policy team established a screening process to get people with asylum claims out of the temporary and often dangerous camps and shelters they had been living in, and into the United States to await their hearings. As of May, most of those who still had asylum claims under MPP had been admitted. In June, MPP was formally ended.
Biden’s Attorney General overturns Sessions efforts to limit grounds for asylum
In 2018, Donald Trump’s Attorney General, Jeff Sessions, instituted new rules that limited the grounds upon which one could seek asylum. Sessions targeted people who were fleeing violence perpetrated by non-state actors, under the general claim that if people were not fleeing political persecution they would not qualify as refugees. In separate rules, he limited the ability of women fleeing domestic violence to qualify for asylum, and denied asylum to those fleeing gang violence.
Attorney General Merrick Garland overturned these rules last week, reversing decisions Session had made in cases involving asylum claims from Guatemala and Mexico. From Reuters: “The significance of this cannot be overstated,” said Kate Melloy Goettel, legal director of litigation at the American Immigration Council. “This was one of the worst anti-asylum decisions under the Trump era, and this is a really important first step in undoing that.”
Central American Minors Program reinstated/expanded
In 2015 the Obama administration established a program that allowed children from Central America to apply for asylum while still in their home country, before risking a dangerous journey through Mexico and an uncertain future at the border. The program was widely viewed as a promising step, but was never able to process enough children - leading to a massive backlog of applications. When Trump became president, he cancelled it - leaving 2,700 children already approved in limbo.
In March 2021, the Biden administration re-opened the Central American Minors Program (CAM), which specifically seeks to reunite children in Central America with a parent in the United States. The first phase of the program was revisiting applications that were in process at the time Trump ended the program in 2017. Last week, CAM was expanded to take on new applications.
In the face of all this good news, it is still important to point out where work remains to be done. These are some areas that offer cause for concern:
Title 42 enforcement remains a huge problem
In March of 2020 the Centers for Disease Control and Protection issued an order citing authority to limit migration under Title 42 of the U.S. code on public health grounds. As a result, the Trump administration had been denying everyone encountered at the border a chance to seek asylum - including unaccompanied children. People thus denied, have been summarily expelled - most into Mexico. Biden has continued to employ Title 42 to expel most people encountered at the border. Even here, there are a few rays of light, as the administration has ended the expulsion of children, and slowed the expulsion of families. Until Title 42 is ended, however, it will remain the primary hurdle facing people seeking asylum in the United States.
The message remains: Don’t Come
As a candidate and since taking office, the administration has focused on undoing Trump-era border policies that closed off avenues to asylum. This is an important effort, still incomplete as indicated by Biden's continued enforcement of Title 42.
But every step along the way, Biden and Harris have repeated the same refrain - “Don’t come to the United States.” Throughout the spring, US embassies in Haiti and Central America were posting memes of Biden telling people not to come to the United States. During a press conference in Guatemala in June, Kamala Harris said, "I want to be clear to folks in this region who are thinking about making that dangerous trek to the United States-Mexico border: Do not come. Do not come….The United States will continue to enforce our laws and secure our border."
In addition to the continued use of Title 42 already mentioned, those who do make it across the border are also being increasingly redirected to detention facilities. The number of immigrants being held in detention has ballooned from 14,000 to 24,000 since Biden took office. Though 14,000 was an historically low number, the direct result of Trump closing off the border in 2020, the increase in detention over the last few months is the clearest indication that Biden remains committed to a punitive framework for addressing migration. With so many people displaced due to poverty, violence, and other systemic injustices and the US in a privileged position to provide support, such policies must change.