Biden’s Immigration Policy: Pivot or Pirouette?

Matthey P. Daley

On Sunday President Biden did something he spent two years evading: going to our border with Mexico in the most visual symbol of what may or may not be a real shift in policy.  The motives for the timing of his visit are reasonably apparent:  

• The 2022 elections are safely in the review mirror and the prospect of House hearings into the border situation looms large, perhaps with an effort to impeach Department of Homeland Security Alejandro Mayorkas.

• The fiction – one of truly Orwellian proportions – that the border was “secure” and “closed” could not be maintained in the face of coverage, not just by Fox News, but by the mainstream media as well.

• The trends in illegal immigration are moving sharply in the wrong direction.  There have been more unauthorized border crossings in the past year than in any year in the last five decades.  A change of some type was necessary to avoid even greater damage in the 2024 elections.

By way of review, there is no doubt that President Biden came into office determined to undo many of the initiatives of President Trump.  The Biden Administration proclaimed that their immigration policy would be welcoming, and humane and numerous steps were taken to make it so.  Construction on President Trump’s wall (not a panacea, but necessary condition to control the border) was halted.  Deportations plummeted as officials were told to “prioritize” hardened criminals among those illegally in the US.  Indeed the term “illegal immigrants” was consigned to the proverbial dust bin of history to be replaced with “undocumented migrants” or simply “migrants”  and, increasingly, “asylum seekers.” Genuine refugees and asylum seekers were conflated with individuals seeking more prosperity and better living conditions.   

When news coverage of families crowded into holding centers surged, officials released the undocumented migrants with instructions to appear for a hearing at some future date.  One of the most recent relaxations of enforcement measures was the Administration’s effort to dispense with Title 42 (a 1944 law dealing with health emergencies) which gave Border Patrol agents the authority to swiftly expel migrants trying to enter the U.S. rather than allow them to claim asylum here.   Ironically, after the Supreme Court ruled that Title 42 (a 1944 US law) would stand temporarily, the Administration which had anticipated and welcomed its removal did an about face and embraced it.  Similarly, the Biden administration reportedly will resume border wall construction.   

Nonetheless, the overall message by the Biden team was interpreted abroad to mean the border was largely open, Secretary Mayorkas’ disingenuous (perhaps more accurately mendacious) pronouncements to the contrary notwithstanding.  The results were unprecedented levels of illegal border crossings which presaged the change in the Administration’s political calculus.

The key elements of the new policy are:

• Deny unauthorized border crossers from Cuba, Haiti, Nicaragua, or Venezuela the chance to apply for asylum.  

• Continue deportations of those who fail to qualify for asylum, but apparently without an active effort to locate these individuals.

• Allow as many as 30,000 people per month from Cuba, Haiti, Nicaragua, and Venezuela to migrate here legally if they have a financial sponsor, download an app, pass a background check, and buy a plane ticket.  They would not have to establish refugee bona fides but would be offered parole which by law has been intended to apply to individuals in extraordinary circumstances, not broadly bypass established visa categories.

As outlined thus far, the new policy departures will reduce somewhat the images of desperate individuals who have walked for thousands of miles to reach our southern border to apply for asylum.  The prize of admission to the US will go the well-connected who can produce financial sponsors (there is no mechanism to compel the “sponsors” to fulfill their obligations) and who have the money to purchase airplane tickets for themselves and their families.  The new system will allow 30,000 well off migrants to reach an American airport in air-conditioned comfort while the lower classes are excluded.  

This will change the optics of the crisis while leaving the underlying fundamentals intact.  This is perhaps an appropriate time to recall that Vice President Harris was given charge of migration early in the Administration.  Like the President, she has been an infrequent visitor to the border.  Following a visit to Central America, she has seemingly dropped this knapsack by the side of the road.

Until Sunday, Biden’s policy was cast in terms of our obligation to afford due process to those seeking asylum as well as humanitarian treatment for those who had crossed our borders.  In principle, these are worthy objectives.  In practice, the Administration has been loath to acknowledge that a majority of those who are instructed to appear in court for an asylum hearing fail to do so and of those who do appear, a majority fail to gain make a convincing case.  Nor has the Administration been willing to acknowledge the unprecedented magnet effect created by its stated policies and the guidance it has provided to DHS officials to break with the past and on a de facto basis make the border more porous.

President Biden doubtless faces strong conflicting political pressures given the traditional pro-immigrant stance of the Democrat Party and the growing unease among Republicans and independents. The question is whether the new approach amounts to a meaningful pivot or a pirouette, a dazzling display of rotations that may not lead to a different place.   Confidence levels are low and the steps outlined thus far are not sufficient to significantly illegal reduce border crossings.  

The President has called for allowing all the illegals now in the US to stay and – along with many others, including advocates on various sides of this issue —  lambasted Congress for its failure to enact comprehensive immigration reform legislation.  But President Biden has also failed to propose such legislation and to take other steps that would receive substantial support in the Congress such as requesting a supplemental appropriation that would allow the hiring of sufficient immigration officials, including judges, that would reduce processing time in the U.S. from years to weeks.  I don’t think that we have has yet a basis judging whether this is a real pivot or a dazzling, but insubstantial pirouette.  But, alas, I am not encouraged.