Has Biden kept his immigration promises?

Biden promised to establish a fair, orderly, and humane immigration system. Has he done it?

Paul Schmidt, a former chairman of the Board of Immigration Appeals, doesn’t think so. He claims that Biden could have established due process and the rule of law at the border and expanded refugee programs in potential sending countries but he didn’t, “preferring instead to use modified versions of ‘proven to fail deterrence-only programs’ administered largely by Trump-era holdovers and other bureaucrats insensitive to the rights, needs, and multiple motivations of asylum seekers.”

Predictably, nobody is pleased.

The problems Schmidt describes are not limited to the border and the treatment of asylum seekers. They are reflected in many of Biden’s other immigration measures too. 

Biden’s refugee program. He raised the fiscal 2021 refugee admissions cap from 15,000 to 62,500, but only succeeded in admitting 11,411 refugees by the end of the fiscal year — the lowest number in the history of the program.

100-day deportation moratorium. Biden established a 100-day moratorium, as promised. But a federal judge issued an injunction to block the moratorium because it likely violates INA section 1231(a)(1)(A), which provides that an alien generally “shall” be removed within 90 days of a final removal order.

Immigration court backlog crisis. When Biden took office, the immigration court had a backlog of upwards of 1.29 million cases. As of the end of November 2021, the immigration court backlog stood at 1.56 million cases, with an average wait for a hearing of 905 days. It has received 143,803 new cases so far in fiscal 2022, and it has only completed 43,156 cases during that period.

More than 40 percent of the asylum applications filed since October 2000 are still pending. Approximately 1.6 million applications were filed during that period, and hearings have not been held yet on 667,229 of them. Current wait times for cases in the asylum backlog average 1,621 days, which is nearly four and a half years.

Remain in Mexico. Trump created this program pursuant to his authority under INA section 235(b)(2)(C); it requires aliens who cross the land border with Mexico illegally or seek admission without proper documentation to return to Mexico and wait outside of the United States pending removal proceedings before an immigration judge.

Biden’s DHS secretary terminated this program with a memorandum.

However, a federal court judge held that the termination was unlawful procedurally because it did not comply with the provisions of the Administrative Procedure Act (APA) and substantively because it caused the administration to systemically violate the mandatory detention provisions in INA section 1225.

Biden has since made changes in the program to make it safer and to ensure that the rights of the aliens involved are protected.

According to Human Rights First, a liberal advocacy non-profit, any version of this program would be unlawful, inhumane, and deadly.

Title 42 expulsions. During the Trump administration, the CDC determined that admitting undocumented aliens from Canada and Mexico created a serious danger of bringing the novel coronavirus that causes COVID-19 into the United States, regardless of where they were coming from. Accordingly, it issued an order temporarily prohibiting the admission of such aliens pursuant to its authority under Title 42 of the Public Health Service Act.

Despite opposition from many Democrats and immigration advocates, Biden has continued this program.

In September 2021, 54 percent of encounters with illegal crossers ended in Title 42 expulsions, down from 74 percent in February 2021, the first full month after Biden took office.

Illegal crossers who are expelled under Title 42 do not face any legal consequences for their illegal crossings, which encourages them to try again if they are expelled. Moreover, there have only been 178 prosecutions for illegal entry under INA section 1325 during Biden’s presidency, so they do not have to worry about criminal prosecution either.

This has made recidivism a significant problem. In fiscal 2021, 27 percent of the encounters with illegal crossers involved migrants who had been expelled more than once, and that rate has continued in fiscal 2022.

Trump’s enforcement policy. Trump complied with INA section 1227, the pertinent part of which states that, “Any alien … in and admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens…”

Biden substituted his own guidelines, which restricted enforcement actions to aliens who are a (1) threat to national security; a (2) threat to public safety, or a (3) threat to border security.  According to a Washington Post article, this reined in ICE enforcement so severely that the agency’s 6,000 officers were averaging only one arrest every two months.

Biden’s guidelines are being challenged in court; plaintiffs are arguing that prosecutorial discretion is not so broad as to allow “sweeping, categorical rules” that exempt “the vast majority” of removable aliens from immigration enforcement.

Central American Minors (CAM). Under the CAM Program, qualifying parents in the United States can request that their qualifying children in Central America will be considered for refugee status, and for parole into the United States if they are not able to establish eligibility for refugee status.

The Trump administration ended the CAM program in fiscal 2018 because “the vast majority of individuals accessing the program were not eligible for refugee resettlement.” Biden restarted it but did little to make it available to more children.

Illegal crossings. CBP encountered 1.7 million illegal border crossers in fiscal 2021, which was the highest number of illegal crossings recorded in any fiscal year since the government began tracking illegal crossings in 1960.

Instead of taking immediate action to end this crisis, Biden appointed Vice President Kamala Harris to lead the administration’s long-term efforts to persuade Mexico and the Central American countries to address the root causes that push people to flee their homes in the first place.

This has been tried before. It hasn’t worked, and there is no reason to expect it to work this time either.

I agree with Schmidt that Biden’s immigration record isn’t pleasing anyone.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow his blog at https://nolanrappaport.blogspot.com.