Biden’s post-Title 42 immigration policy is a bandage over a bullet wound 

When Title 42 ended two months ago, some Democrats championed the move as a humanitarian win — a sign that the heartless policies of the Trump administration had finally come to an end. People fleeing violence and unimaginable hardship in their birth countries could again seek asylum here, as guaranteed under both domestic and international law.  

As an immigration attorney, I have seen very little difference in the immigration landscape — in court and out of court. Migrants arriving at the border still face a heavily burdened and antiquated system, and the Biden administration is doing the barest minimum to support migrants. Even if its intentions are better than those of the Trump administration, it’s outlined no affirmative agenda to support migrants in the long term.  

Case in point: Many of my clients are still detained and denied bond once they arrive in the U.S., instead of being released on their own recognizance or given enough time to find an attorney before a prosecutor holds a bond hearing. Also, the detention officers are often highly prejudicial and yet, regularly deferred to by immigration judges. 

One of my clients was denied bond because he wrote a song about his detention officer — not because he was a threat to the community, didn’t have a sponsor or had a criminal record — but solely because of the song. He’s since been deported back to a country where he was persecuted for his political opinion by criminal organizations and paramilitary groups.  

Or take the immigration court backlog. Recently, one of my clients from Guatemala was granted a green card application with a processing date in 2026. 2026.  

Even simple things like fingerprinting are a disaster. In April, I applied for a client to have fingerprints taken — a critical step that is supposed to happen before an asylum seeker has their court hearing. The federal biometrics program was so backlogged that his case was decided without the fingerprints, and my client was held for months beyond the case decision while we waited on the government agency to process his fingerprints.  

Without a comprehensive immigration program, people awaiting immigration status are the most vulnerable to predatory shadow systems. That includes everything from predatory sponsors to coyotes who care little for human life, as evidenced by the tragic death of 53 migrants in a truck last summer in San Antonio, to the NY Times article that exposed child labor abuses in which hundreds of migrant children were working day and night to pay back their immigration sponsors, and the Biden administration was notified about abuses of the asylee sponsorship system in the U.S. and did nothing.  

And criminal enterprises aren’t the only ones acting with impunity. Government employees are also taking advantage of migrants. In August 2017, the Dilley Pro Bono Project, a consortium of the American Immigration Council, the American Immigration Lawyers Association, the Catholic Legal Immigration Network, Inc., and Texas RioGrande Legal Aid, sued ICE for denying access to medical care (mental health evaluations) for asylum seekers in custody. (Full disclosure: I am an attorney with the American Immigration Council’s Immigration Justice Campaign.)

This is a flagrant disregard for the Constitution. (A quick constitutional law reminder: The Constitution applies to everyone on U.S. soil regardless of immigration status.) 

It’s true that the Biden administration has been trying to compel Immigration and Customs Enforcement to ease up on detentions and deportations, but ICE won’t listen to the Biden administration. And with insufficient resources going to the immigration government agencies, fairness and efficiency are a pipe dream. 

The Biden administration is failing asylum seekers with strong cases and overwhelming evidence of persecution. Many migrants arrive here with strong evidence and have winnable cases but still get deported because of lack of access to attorneys or untranslated documents, or they are needlessly held in detention centers where access to the basics for building their case — printers, scanners, translators, internet — are nonexistent.  

It doesn’t have to be this way. There’s a lot we can do, and viable solutions are right in front of us. 

For example, the American Immigration Council has assembled a roadmap of policy ideas for building a functional humanitarian protection system at the border. Things such as surge resources, timely asylum processing at ports of entry, funding, a right to counsel and lifting antiquated asylum laws from the 1990s. 

The White House can easily put these policies into action. They can design and champion an affirmative vision for our immigration system — and for the border. They have a choice: Be an administration with a lasting vision and legacy for migrants or be remembered for being slightly less bad than their Republican predecessors.

Michael Foote is an immigration attorney in partnership with the Immigration Justice Campaign of the American Immigration Council, Southern Poverty Law Center, Safe Passage, and the Rocky Mountain Immigrant Advocacy Network.