Back in November 2018, a federal judge blocked President Trump’s asylum ban, saying at the time that it was an overreach of executive authority and that the president is “not a monarch.”
A few months later, Joe Biden tweeted that Trump was “fighting tooth & nail to deny those fleeing dangerous situations their right to seek asylum in our nation” and that “we should uphold our moral responsibility & enforce our immigration laws with dignity — not turn away those fleeing violence, war, & poverty.”
Fast forward to today and President Biden has enacted via executive action what is perhaps the most restrictive immigration policy by a Democrat in recent history. It essentially replicates Trump’s asylum ban, citing Section 212(f) of the Immigration and Nationality Act (INA), which gives the president authority to “suspend the entry” of certain noncitizens into the United States under certain circumstances, if it does not interfere with or subvert other parts of the INA or other federal laws. The Trump administration used the same rationale for its ban, which the courts ultimately blocked.
The asylum ban that the Biden administration has enacted is both sweeping and harsh. The order goes into effect when the number of border crossings between ports of entry hits 2,500 per day, a threshold already met, and restrictions would be in place until two weeks after daily crossings dip below 1,500 a day, a number not seen since the first few months of the COVID-19 pandemic.
Individuals can theoretically make an appointment to surrender themselves and claim asylum at a port of entry using the CBP One app, but it comes with significant safety risks to personal safety, and the wait can be up to eight months — and that’s a better-case scenario. Biden’s asylum ban is harsher than Trump’s in noteworthy respects, making it harder for asylum seekers to enter the United States and receive lesser forms of protection if their asylum claim is denied in court. The time guaranteed to migrants for consulting an attorney for initial asylum screenings has also been cut from 24 to four hours, a provision that effectively denies people legal representation.
This is a desperate move by a fledgling presidential campaign to bolster its poll numbers by tacking sharply to the right on a contentious issue. It appears to already be seriously backfiring, with most of Congress unhappy with what has transpired.
Progressive Democrats are rightfully appalled by the ban. Democratic Sen. Alex Padilla from California said it was “disappointing to see an attempt to return to the same policies that were proven to fail in the Trump administration.” Sen. Chris Murphy, one of the Democratic architects of the recent failed anti-immigrant border bill, which is one of the most restrictive immigration bills proposed in decades, is not giving Biden much credit for it, saying he is “skeptical that the executive branch has the legal authority to shut down asylum processing between ports of entry on its own.”
Hardline anti-immigrant members on the right who were meant to be appeased by this ban and who have been pushing another harsh anti-immigrant bill are disingenuously calling the executive action “mass amnesty.”
What’s clear is that short-term thinking and political opportunism drove this abysmal decision by the Biden administration. For one, conditions at the border are unexceptional — crossings are down 54 percent since December. Secondly, the decision does not appear to have taken into account research from the nonpartisan Congressional Budget Office, which recently announced that the economy is expected to grow by $7 trillion in the next decade due to increased immigration. According to a recent report by the Hamilton Project at Brookings, the recent slowing of inflation can be attributed to migrant workers alleviating labor shortages that put pressure on supply chains. Thus, the hardline anti-immigrant rhetoric is not only detached from reality but also counterproductive to economic prosperity.
Fortunately for us, migrants will continue coming to the U.S. despite the political theater meant to scare them. A Venezuelan migrant who NTN24 asked about the asylum ban was undeterred: “I keep moving forward. I’m not going backward, not even to gain momentum.” The asylum system could have used more funding and personnel to facilitate processing, clear up backlogs, and establish coordination between local governments that could use and are asking for migrant workers, as in the case of Pittsburgh. Instead, the asylum ban only demolishes legal pathways and drives people into dangerous routes into the country to avoid border authorities.
A lot of Democrats defended the new illegal asylum ban, claiming it was needed due to Republican unwillingness to work in a bipartisan manner after the recent border bill failed in Congress. But some of those Democrats just a few years ago were marching in lockstep against the same asylum ban when Trump instituted it. Now, to counter congressional gridlock on an anti-immigrant bill with a right-wing framework on enforcement and without any pathways to citizenship, they’re implementing it through executive action.
It’s truly reprehensible (and depressing) that Biden and the Democrats have neither put forward a coherent vision for a humane immigration system nor spent significant political capital in enacting reform that would give the millions of undocumented workers in this country a pathway to citizenship. As former Housing and Urban Development Secretary Julian Castro noted, the Biden administration has “put no effort into painting a positive vision on immigration even as the GOP played extremist boogeyman politics, scaring more Americans into believing there’s an invasion.” He could not be more correct.
Ultimately, the voters who support immigration restrictions will gravitate to Trump, with polling showing that his hardline approach is increasingly appealing to voters as Democrats adopt his positions. It’s the same mistake that centrist political parties in Europe have committed by adopting the anti-immigrant positions of far right parties, only to see it backfire on them in places like France, Britain and the Netherlands. It only legitimizes extremist policies and alienates voters.
Biden’s illegal asylum ban will do the same to a large portion of the Democratic base. As Yareliz Mendez-Zamora from the Florida Immigrant Coalition said, “Those who voted Trump out of office only to get Trump-era immigration policies under a Democratic administration will not be happy.”