Biden Adopts Trump’s Immigration Policy

He's using a tool he denounced as cruel to deal with a humanitarian crisis.

AP (“Biden turning to Trump-era rule to expel Venezuelan migrants“):

Two years ago, candidate Joe Biden loudly denounced President Donald Trump for immigration policies that inflicted “cruelty and exclusion at every turn,” including toward those fleeing the “brutal” government of socialist Nicolas Maduro in Venezuela.

Now, with increasing numbers of Venezuelans arriving at the U.S.-Mexico border as the Nov. 8 election nears, Biden has turned to an unlikely source for a solution: his predecessor’s playbook.

Biden last week invoked a Trump-era rule known as Title 42 — which Biden’s own Justice Department is fighting in court — to deny Venezuelans fleeing their crisis-torn country the chance to request asylum at the border.

The rule, first invoked by Trump in 2020, uses emergency public health authority to allow the United States to keep migrants from seeking asylum at the border, based on the need to help prevent the spread of COVID-19.

Under the new Biden administration policy, Venezuelans who walk or swim across America’s southern border will be expelled and any Venezuelan who illegally enters Mexico or Panama will be ineligible to come to the United States. But as many as 24,000 Venezuelans will be accepted at U.S. airports, similar to how Ukrainians have been admitted since Russia’s invasion in February.

Mexico has insisted that the U.S. admit one Venezuelan on humanitarian parole for each Venezuelan it expels to Mexico, according to a Mexican official who was not authorized to discuss the matter publicly and spoke condition of anonymity. So if the Biden administration paroles 24,000 Venezuelans to the U.S., Mexico would take no more than 24,000 Venezuelans expelled from the U.S.

The Biden policy marks an abrupt turn for the White House, which just weeks ago was lambasting Florida Gov. Ron DeSantis and Texas Gov. Greg Abbott, both Republicans, for putting Venezuelan migrants “fleeing political persecution” on buses and planes to Democratic strongholds.

“These were children, they were moms, they were fleeing communism,” White House press secretary Karine Jean-Pierre said at the time.

Biden’s new policy has drawn swift criticism from immigrant advocates, many of them quick to point out the Trump parallels.

The policy seems especially hypocritical in that Trump at least had the excuse that the COVID pandemic was in full swing. Vaccines hadn’t yet been introduced. And, of course, Biden famously declared the pandemic “over,” urging Americans to get on with their lives.

Still, he’s been dealt a massive problem. We simply don’t have the infrastructure to process asylum requests at anything like this pace. And, like it or not, approximately zero of these Venezuelan migrants qualify for asylum under US law, which requires them to “meet the definition of a refugee” under section 101(a)(42) of the Immigration and Nationality Act which requires a “well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” These are economic migrants, not refugees.

But, again, this was all apparent when Biden castigated Trump’s policy and Biden doesn’t have the excuse that Bill Clinton, George W. Bush and others have had in similar cases* of simply being a neophyte.

Regardless, while Biden is obviously more welcoming to immigrants than his white nationalist predecessor, the practicalities are what they are.

For more than a year after taking office in January 2021, Biden deferred to the Centers for Disease Control and Prevention, which used its authority to keep in place the Trump-era declaration that a public health risk existed that warranted expedited expulsion of asylum-seekers.

Members of Biden’s own party and activist groups had expressed skepticism about the public health underpinnings for allowing Title 42 to remain in effect, especially when COVID-19 was spreading more widely within the U.S. than elsewhere.

After months of internal deliberations and preparations, the CDC on April 1 said it would end the public health order and return to normal border processing of migrants, giving them a chance to request asylum in the U.S.

Homeland Security officials braced for a resulting increase in border crossings.

But officials inside and outside the White House were conflicted over ending the authority, believing it effectively kept down the number of people crossing the border illegally, according to senior administration officials.

A court order in May that kept Title 42 in place due to a challenge from Republican state officials was greeted with quiet relief by some in the administration, according to officials who spoke to The Associated Press on condition of anonymity to discuss internal discussions.

Essentially, he had been able to kick the can down the road because others were making the decision for him. Now, he’s faced with a hard reality:

The recent increase in migration from Venezuela, sparked by political, social and economic instability in the country, dashed officials’ hopes that they were finally seeing a lull in the chaos that had defined the border region for the past year.

By August, Venezuelans were the second-largest nationality arriving at the U.S. border after Mexicans. Given that U.S. tensions with Venezuela meant migrants from the country could not be sent back easily, the situation became increasingly difficult to manage.

We’re simply not going to devote the resources necessary to staff and house a presumably temporary problem of this magnitude. (We typically get a couple of hundred Venezuelan migrants a year; we’re looking at 150,000 this year.) I suppose we could just declare that anyone who arrives at the borders should simply be allowed to stay but there’s very little political support for that.

So an administration that had rejected many Trump-era policies aimed at keeping out migrants, that had worked to make the asylum process easier and that had increased the number of refugees allowed into the U.S. now turned to Title 42.

It brokered a deal to send the Venezuelans to Mexico, which already had agreed to accept migrants expelled under Title 42 if they are from Guatemala, Honduras or El Salvador.

All the while, Justice Department lawyers continue to appeal a court decision that has kept Title 42 in place. They are opposing Republican attorneys general from more than 20 states who have argued that Title 42 is “the only safety valve preventing this Administration’s already disastrous border control policies from descending into an unmitigated catastrophe.”

Under Title 42, migrants have been expelled more than 2.3 million times from the U.S. after crossing the country’s land borders illegally from Canada or Mexico, though most try to come through Mexico.

The administration had announced it would stop expelling migrants under Title 42 starting May 23 and go back to detaining and deporting migrants who did not qualify to enter and remain in the U.S. — a longer process that allows migrants to request asylum in the U.S.

We have a major crisis on our hands and the President is using every tool at his disposal—including one he’s previously denounced as cruel and barbaric—to address it. I get it. But it’s not a good look.

“We are extremely disturbed by the apparent acceptance, codification, and expansion of the use of Title 42, an irrelevant health order, as a cornerstone of border policy,” said Thomas Cartwright of Witness at the Border. “One that expunges the legal right to asylum.”

A separate lawsuit from the American Civil Liberties Union also is trying to end Title 42, an effort that could render the administration’s proposal useless. “People have a right to seek asylum – regardless of where they came from, how they arrive in the United States, and whether or not they have family here,” said ACLU lawyer Lee Gelernt.

Again, there’s no right to asylum for economic migrants or those simply fleeing a war zone. And there’s certainly no right to travel thousands of miles through a dozen poor countries to seek asylum in a rich country.

Still, there are something like 6 million displaced persons from Venezuela alone, a major humanitarian crisis. While the impulse to pawn the problem off on Mexico or somewhere else is perfectly understandable, it’s also cruel. It’s not reasonable for the United States to absorb all or most of them in short order but we almost certainly need to do more.

Alas, we’re dealing with our own economic problems, absorbing Afghan refugees (who are legitimately that, and mostly as a function of our intervention there), and supplying Ukraine. Even our resources aren’t unlimited.

___________________

*Challengers often try to make hay by drawing distinctions on foreign policy but the two examples that come most readily to mind are Clinton’s criticism of Bush 41’s policy toward Haitian refugees and Dubya’s criticism of Clinton’s China policy. In both cases, it turned out that the least bad option was the best.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Jay L Gischer says:

    Anything the Biden admin does this month has to be looked at through the lens of the midterms. Will this help them? It kind of neutralizes the immigration issue, which is working for R’s but I don’t know how effective that will be. Also, it sort of makes DeSantis look good.

    I can accept that the number is overwhelming, and a temporary halt may well be needed. But it is disappointing. Political refugees like this can be a resource drain at first, but they are always a big positive in the long run, as far as I can see.

  2. Chris says:

    I have sympathy for those fleeing terrible governmental regimes. However, when a foreigner is in Mexico seeking asylum in the U.S. at the border, my first question is what country are they seeking asylum from? If the answer is anything but Mexico, then the foreigner in Mexico is Mexico’s problem. In turn, if Mexico is seeking some relief with its immigrant problem, by way of assistance from the U.S., then they need to work with the U.S., which includes better security at Mexico’s Southern border and real engagement from Mexico to help clean up the mess created by the Central and South American Nations in question.

  3. Michael Reynolds says:

    One of the big mistakes Democrats made was in thinking that harsh border policies turned off Hispanic voters, and those voters would see it as analogous to racism toward Blacks. Nope. I don’t know any more about that culture than any other Anglo, but I don’t think Venezuelans, Mexicans and Salvadorans think of themselves as a race. And they seem as likely as any other bunch of humans to take the position that I got mine, fuck you.

    I’ve tried to talk to progressives (some in my family) about this. They have no answers just bleeding hearts. You know who doesn’t seem to care? My Salvadoran very-nearly-son-in-law. The ‘browns’ don’t fit into the Black historical slot, I don’t think they see themselves in that light, I think they see themselves less as Black-adjacent, and more as filling the Italian or Irish slot.

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  4. Matt Bernius says:

    Fair writeup of the situation James. I’m frustrated that two years in and with plenty of time to plan for this possibility, this is the best that the Biden administration could come up with.

    It might be the only viable solution, but they definitely deserve any complaints about hipocrasy.

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  5. Sleeping Dog says:

    The entire immigration issue is likely unsolvable, even if there was unanimity with how to deal with it and there was a congress willing to pass legislation to assist.

    Presently, a vast majority of the migrants are for economic and political reasons, but we’re on the cusp of seeing millions of migrants on the move due to being displaced by global warming, whether the cause is rising sea levels or desertification. Given the reality of the situation, what really should occur is finding a way for developed countries to absorb and utilize the influx. Given that native populations in much of the developed world are stagnant and are not even achieving replacement rate, those countries can us the population growth.

    The barrier to dealing with this issue is cultural not financial or economic.

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  6. MarkedMan says:

    I’m the child of immigrants and have twice worked in foreign countries, and am generally pro-immigration. Despite this, I find the progressive perspective on border policy to be hopelessly naive. If we opened our borders to anyone who wants to come, hundreds of millions or even billions of people would be here within a year. We have made if very difficult to legally immigrate or get a work visa and despite this one sixth of our work force is foreign born. If we make it easy to come here illegally or as an asylum seeker we would be overwhelmed.

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  7. Sleeping Dog says:

    @Michael Reynolds:

    The LA city council kerfuffle tore back the gentile veneer of inter-sectionalism and revealed the ugly reality of intra-group discrimination. Not that this was a surprise to observers whose eyes were open and minds accepting the reality of what they saw. But it does show that whatever the ideals were that are at the base of the thought, the idea that a pan ethnic-racial political movement can exist is a movement built on quicksand and is destined to fail.

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  8. Matt Bernius says:

    @Michael Reynolds:

    The ‘browns’ don’t fit into the Black historical slot, I don’t think they see themselves in that light, I think they see themselves less as Black-adjacent, and more as filling the Italian or Irish slot.

    Yup. This is generally true of a lot of other ethnic groups split across many countries/nations. Excluding moments where they are united because of things like violence against the “community” writ large, nation of origin (and often language) tends to be key separators.

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  9. Modulo Myself says:

    The whole border crisis is a media-produced sham for American consumption. If you’re angry about people coming to this country, then Title 42 is not working, because 2.3 million people have been expelled using it. It’s never been easy to come here. The border has always been guarded. And yet people still pay money to cross the Darien Gap and Mexico to get to America. But instead of dealing with the obvious crisis, which focuses on the people who are coming here and not us, it’s become the usual show about naive liberals and bleeding hearts and how empathy is so bad and counterproductive with brown hordes as the useful backdrop.

    American nativism is the kind of logic that allows white sharecroppers to look down on black sharecroppers in the south and accept their exploitation. It’s utterly the most limp-dick pathetic thing out there, and probably will carry the Republicans to victory.

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  10. Modulo Myself says:

    Yup. This is generally true of a lot of other ethnic groups split across many countries/nations. Excluding moments where they are united because of things like violence against the “community” writ large, nation of origin (and often language) tends to be key separators.

    This is just a weird way of talking about Central and South America. Nation of origin is not the key separator. Class is, except in a few cases of populism.

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  11. Andy says:

    @Michael Reynolds:

    This is definitely one of many cases where the progressive abstraction of racial identity into arbitrary groups, especially “POC” vs “white” is, at best, counter-productive.

    Every country in the world has cultural, class, religious, ethnic, and racial divides to one extent or the other. As we’ve discussed at many points here, humans are social by default and create communities and in-groups and out-groups. They “tyranny of small differences” exists everywhere, hence why some Mexicans dislike other Mexicans more than they dislike Americans. The arbitrary US-centric racial and ethnic classifications very poorly represent the real world and actual people.

    As for Biden’s flip-flop on this issue, I guess he doesn’t have a lot of options. That he’s re-implementing this policy at this moment while, at the same time, his administration is fighting it in court, suggests this is a holding action to get past the mid-terms or (hopefully) intended to develop a better policy. Buy my guess is this is political triage. But Biden helped create this situation for himself by trying to have it both ways for the past two years – He wanted to reject Trump’s actions and hostility to immigration while at the same time he didn’t want to incentivize more people to come. That failed, and more people came and have come.

    Finally, I’ll just express my frustration with a political class and domestic media that ignores this problem until it can’t be ignored any more (or until there is partisan grist to mill). And the partisan divide is so bad on this issue that any compromise seems impossible, despite the fact that Americans generally want a compromise. The purported immigration preferences partisans aren’t representative of a majority of Americans. It’s yet another example of how minority views punch above their weight when it comes to policy.

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  12. JKB says:

    Of course, the real problem with Venezuelan immigrants is that they know socialism and so aren’t reliable Democratic party supporters. Ruy Teixeira, has a recent substack that proposes a 3 point plan for Democrats. Here is his statement of the current situation of Democrats in regards to border security and immigration.

    With this context in mind, consider some recent poll results. The latest NBC poll tested which party voters preferred on a number of different issues. Republicans were preferred over Democrats by 36 points on border security, 23 points on dealing with crime and by 19 points on immigration. All three of these ratings are the highest net advantages for the GOP ever found on the NBC poll.

    BTW, the plan is basically Democrats need to swing back toward Trump’s policies. That’s the state of affairs for those lamenting the Democrats alienating both white and non-white “working” class voters. (non-college credentialed, though many are owners of businesses)

  13. Michael Reynolds says:

    @JKB:
    Do we also need to swing back to sucking Putin’s balls?

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  14. MarkedMan says:

    @Modulo Myself: So what’s your solution? Just open the gates to the Venezuelans? Or to anyone who claims asylum? I’m not being sarcastic, I really can’t see how that would result in anything but a disaster. What would be the less-cruel policy that wouldn’t result in an increasing spiral of people claiming asylum?

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  15. Modulo Myself says:

    @MarkedMan:

    With Venezuela, probably not supporting a coup against Chavez and then after the 2004 recall failed in a fair election admitting defeat for starters. There was no reason for that country to be made into the enemy that it was. With Maduro, the US has supported sanctions, all of which made the economic situation much, much worse. And for what end? To play off on America’s fear of socialism? It’s an utter disgrace.

    Since Roosevelt, the US policy towards Latin America has always been vile. There’s just no other way around that fact, and this just the blowback. As far as letting people into this country goes, there are half-dead towns everywhere in this country. If the rubes don’t like it, well tough. We’ve let people become so terrified of the most pathetic stuff imaginable, so that you get shit like this in Staten Island.

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  16. MarkedMan says:

    @Modulo Myself:

    With Venezuela, probably not supporting a coup against Chavez and then after the 2004 recall failed in a fair election admitting defeat for starters.

    So, absent a time machine, what do you propose for what’s happening now?

  17. Modulo Myself says:

    @MarkedMan:

    A massive program to bring and resettle migrants and a serious investment in creating equality in Latin American countries.

    What’s hilarious is that the alternative–just turning people away with various feeble shows of cruelty for the sake of Americans–is not going to end the crisis. It will just grow worse and worse. And the solution–turn America into the dumbest part of white Alabama imaginable, where everybody hides behind a wall and dwells in stasis–is not even a solution in white Alabama now. Not for young people at least. Politics aside, no one wants to live like a brain-dead zombie in Staten Island frightened of their own shadow.

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  18. just nutha says:

    @Modulo Myself:

    Nation of origin is not the key separator. Class is, except in a few cases of populism.

    Indeed! Thus

    Venezuelans who walk or swim across America’s southern border will be expelled and any Venezuelan who illegally enters Mexico or Panama will be ineligible to come to the United States. But as many as 24,000 Venezuelans will be accepted at U.S. airports

    I wonder what makes the ones who come in on airplanes better candidates? But there I go again, rejecting morally impure success. 🙁 When will I ever learn?

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  19. Gustopher says:

    And, like it or not, approximately zero of these Venezuelan migrants qualify for asylum under US law, which requires them to “meet the definition of a refugee” under section 101(a)(42) of the Immigration and Nationality Act which requires a “well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”

    Given that many of the refugees are indigenous rather than of Spanish descent, I would be wary of making such a broad claim. There is genuine discrimination and persecution against indigenous populations.

    This also fits into the discussion above about Latino voters, the browns not fitting into the same type of slot as the Blacks, and Andy’s reference to a “tyranny of small differences.”

    We see a wave a Latinos at the border, but that’s largely because of ignorance. There’s a lot more variation in that group.

    Of course, if we have no idea what to do with this many asylum seekers, it’s largely immaterial.

  20. Kathy says:

    All I got to say is Joe better not come up with the notion of building a wall.

  21. Just Another Ex-Republican says:

    This is another issue where the President is forced by Congressional inaction to try and do “something.” It’s pathetic. We basically don’t have a national immigration plan-it’s all duct tape, wishful thinking, and political soundbites.

    And that dates back decades at this point, regardless of party at the Presidential or Congressional level.

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  22. Sleeping Dog says:

    @Just Another Ex-Republican:

    The last time we had significant immigration reform was under Reagan, a Republican who was willing to expend political capital to achieve a goal he deemed important. Both Bush II and Obama attempted reform, and both were repulsed by the nativist in the R party.

    Not attempting reform is politically advantageous for Rs.

    1
  23. Scott says:

    @Michael Reynolds: As my DIL says about her South Texas border relatives/family: “They are racist as hell”.

    1
  24. MarkedMan says:

    @Just Another Ex-Republican:

    We basically don’t have a national immigration plan

    While that is true (and a disgrace) it really doesn’t have anything to do with this immediate problem.

  25. Gustopher says:

    And there’s certainly no right to travel thousands of miles through a dozen poor countries to seek asylum in a rich country.

    What if the rich country is actively seeking to impoverish their country of origin?

    Just saying that it’s a little rich to be applying economic sanctions to a country and be shocked that there are economic refugees. Things don’t happen in a vacuum.

    (Also, raising standards of living in all the countries between Venezuela and the US would likely mean more refugees stay somewhere else. I’ve long believed that our best immigration strategy would be a safe, strong, prosperous Mexico)

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  26. just nutha says:

    Given that many of the refugees are indigenous rather than of Spanish descent, I would be wary of making such a broad claim.

    I doubt that very many indigenous refugees would be flying in on airplanes, so the objection may well be valid.

  27. Just Another Ex-Republican says:

    @MarkedMan: True that the lack of a coherent policy isn’t the immediate problem, but I’d submit that the lack of a coherent policy dating back decades makes it much harder to deal with crisis events.

    1
  28. Jay L Gischer says:

    Did you mean Trump’s policies of lying about election fraud and trying to overthrow the government? Those policies?

  29. JKB says:

    @Michael Reynolds: Do we also need to swing back to sucking Putin’s balls?

    Thankfully, “Flexible” Obama is no longer eligible to be president. But sadly, many of his White House minions are also in Biden’s administration

  30. Michael Reynolds says:

    @JKB:
    You’re too gutless to take me on in an active thread, so to salve your ego you offer inexplicably clueless retorts after you’re sure I’m gone.

    I know this is an almost impossible suggestion for you, but if you ever want to be anything but the butt of jokes, try honesty. You know: tell the truth. Deal with reality. You’re a liar, everyone knows you’re a liar, everyone knows that anything true you say is just a prelude to another lie. You fool absolutely no one here. Your sole utility here is to draw scorn on days when we don’t have anything better to do.