- Immigration experts say that the Biden administration has failed to move the needle from Trump.
- Experts told Insider that policies such as Title 42 should be rescinded.
- "What they fail to do also says a lot about what their priorities are," one expert told Insider.
On the campaign trail in 2020, President Joe Biden made a promise: He told voters he would end the Remain in Mexico program on day one of his presidency.
But more than a year into the Biden-Harris administration, thousands of migrants a day are turned away from the US under the Trump-era program, which requires asylum-seekers to wait in Mexico for the duration of their immigration court cases.
Despite a brief suspension in the first half of 2021, protracted legal battles led to the program not only being reinstated in December 2021, but expanded as well. The ongoing battle over the policy has made it to the Supreme Court, where justices heard oral arguments this week over the administration's efforts to end the program once and for all.
Immigration experts say the measure, also known as Migrant Policy Protocols (MPP), creates dangerous and sometimes deadly conditions for asylum-seekers.
Similarly, immigration advocates spent the first 14 months of Biden's presidency urging the administration to end Title 42 — another Trump-era policy used to rapidly turn away asylum-seekers under the guise of a public health emergency measure.
On April 1, Homeland Security Secretary Alejandro Mayorkas announced that the administration finally had an end date in sight. It would mean that families and single adult asylum-seekers who had been turned away time and again at the southern border since the COVID-19 pandemic began in March 2020 would have the opportunity to make a claim beginning May 23.
But the proposal has been met with resistance and confusion thus far – from all sides of the political spectrum.
A bipartisan group of senators introduced a new bill earlier this month that would block the administration from scrapping Title 42 without a specific plan in place to deal with massive numbers of migrants expected at the border. Then, a Trump-appointed judge this week temporarily blocked the administration from lifting the order, announcing an intent to grant several states' request for a temporary restraining order.
Meanwhile, recent reports suggest the administration itself is considering delaying the repeal to avoid an influx at the border ahead of November midterms.
A spokesperson for the US Department of Homeland Security told Insider that even a temporary restraining order on the repeal would restrict the agency's efforts to adequately prepare for Title 42's eventual expiration.
Once the policy is lifted, the spokesperson said DHS intends to "significantly expand" the removal of people who "seek to cross the border without a lawful basis to do so" and impose "long-term law enforcement consequences" on such migrants. As such, the spokesperson said it makes "no sense" that the states suing to stop the repeal would halt DHS preparations for "aggressive application of immigration law" come May 23.
But even if the policy is ultimately rescinded come May, for many immigration experts, the move will be too little, too late.
The administration's decision to exempt Ukrainian refugees from Title 42 amid the Russian invasion has only further frustrated immigration advocates fighting on behalf of the scores of Central and South Americans who have been waiting for years to seek asylum in the US.
Biden once pledged he would "reassert America's commitment to asylum seekers and refugees." But immigration experts say that promise has yet to materialize.
"The president promised a more humane asylum system and that has not happened," Lee Gelernt, deputy director of ACLU Immigrants' Rights Project told Insider in January. "We largely have the same border restrictions that we had under the prior administration for asylum seekers."
Last summer, Insider spoke to seven immigration experts, asking them to give the administration a report-card-style grade on its handling of the issue so far. The assessments of the Biden administration's approach to immigration at the time were varied. Three sources handed out failing grades, but others offered a "B" or even a "B+" for the fledgling president.
Insider spoke again to those experts and others, and found that their initial grade diversity had disappeared entirely; almost all eight sources brandished Biden with the same marking — and an abysmal one at that.
Pedro Rios, director of the American Friends Service Committee's US/Mexico Border Program:
Grade: F
Why:
Last year, Rios gave the administration a D, primarily citing the continuation of Title 42 as reason for his low grade. In the months since, his assessment dropped, with Rios now characterizing the administration's immigration approach as "terrible."
Rios told Insider his failing grade this time around is essentially based on the president's "lack of commitment to asylum procedures." He cited instances of migrants being returned to Mexico under MPP who have been attacked and died in their attempts to return to the US and enact their legal right to seek asylum.
"It makes Biden and his administration complicit in putting forward policies that we knew from the get-go were racist," Rios said. "And they are now responsible for the deaths of people who might, in another era, be given an opportunity to seek shelter and safety."
A DHS spokesperson told Insider that Secretary Mayorkas agrees that MPP has "endemic flaws," which imposed "unjustifiable human costs" and pulled resources and personnel away from other priorities while failing to address the root causes of irregular migration. Still, the agency is implementing the protocol in "good faith" as required by previous court order.
"DHS is hopeful that the Supreme Court will overturn the lower courts' rulings and allow Secretary Mayorkas to exercise his discretion to implement his policy decision to end MPP," the spokesperson said.
What the administration should do better:
"I would like to see the US commit to their obligations under federal law and under international agreements to uphold asylum procedures," Rios said.
He also noted a need for more extensive resources directed toward welcoming migrants in supportive ways and urged the administration to end harmful policies that don't allow migrants who are fleeing harm to present themselves in the US in a safe manner.
In an April follow-up, Rios said the disparate treatment is evident in how Ukrainian asylum seekers have been handled compared to migrants from other countries that are also facing war. It underscores that the Biden administration "could be doing more," Rios said.
Lee Gelernt, deputy director of ACLU Immigrants' Rights Project
Grade: N/A
Why:
Gelernt declined to give the administration a grade when he spoke to Insider in January. But whereas last summer he said the Biden administration had, for the most part, done "very well" handling immigration, this time around, the lawyer characterized the administration's approach as "mixed."
Gelernt, too, cited the continuation of Title 42 as a major weak spot in the administration's first year, saying the decision to keep the border closed to asylum-seeking families for so long resulted in "horrific abuse."
"Given that there is virtually no support among the public health community for the Title 42 policy, and the administration knows that, I think the conclusion is inescapable that politics is playing an outsized role here," Gelernt said.
The policy, which was first implemented by Trump at the start of the COVID-19 pandemic, has been framed as a public health measure meant to stop the spread of the coronavirus at the border. But throughout its nearly two year existence, public health officials and scientists have slammed the policy time and time again, arguing that it does little to mitigate risk and instead, is being used as a pretense to keep migrants out.
"Unfortunately the administration's first year on immigration can be summed by how it has allowed politics to dictate critical decisions about family separation and asylum," he said.
The conclusion is inescapable that politics is playing an outsized role here.
Gelernt also pointed to the administration's handling of family separation as a place for improvement, telling Insider that the ACLU was "extremely disappointed" and "shocked" when the administration in December broke off negotiations regarding compensating families who were separated under the Trump administration. The administration's decision to do so pushed the case back into court, where the Biden administration was forced to publicly defend a policy that the president once called "criminal."
What the administration should do better:
Gelernt said the ACLU continues to engage in constructive negotiations with the Biden administration on all aspects of family separation except compensation, though he said it was too early to tell what the outcome of those talks may be.
"We hope the administration will do everything possible to make sure those families are never separated again or deported back to danger," he said.
Gelernt also urged the administration to end Title 42 immediately and restore asylum privileges in the US.
"After World War II, we made a solid commitment never to send people back to danger, and it's not been two years since we've had a working asylum system or since we've accepted asylum seekers," he said.
Vicki Gaubeca, director of Southern Border Communities Coalition:
Grade: F
Why:
Last summer, Gaubeca deemed the administration's immigration efforts worthy of a B-, praising Biden's "intent to create a humanitarian, efficient process," while acknowledging the challenges of successfully implementing such changes.
But in the months since, Gaubeca's optimism has given way to unbridled frustration regarding several policy decisions, including the continuation and expansion of Title 42 and MPP, as well as ongoing border wall construction, and what she sees as cowardice on Biden's part in combating far-right rhetoric surrounding the border.
"Both sides…are basically caving in to the fear mongering of the extreme right," she said. "We're failing to garner our humanity. We're just failing miserably at it, I think."
Gaubeca was also critical of the extensive role the Department of Homeland Security plays in the US immigration system, calling the agency "a monster," whose "power just grows with every single administration." She said the agency has too much of a law enforcement mentality to be effective in handling necessary immigration services for arriving migrants.
"They have forgotten human rights and asylum law responsibilities," she told Insider earlier this year. "They're just focused on stopping people from going to the US and getting as many people as possible out of the US, which in the long term, is going to be a disservice to the US."
What the administration should do better:
Gaubeca said the administration is missing a key tenet in its approach to handling immigration: courage.
She suggested the president could take inspiration from the bravery displayed by asylum-seekers at the border who have "gone through hell" to flee violence or reunite with their families.
Gaubeca speculated that if the president fails to start fulfilling his immigration-related campaign promises soon, he'll lose voter support.
"If he continues acting the way he is, I don't think he's going to be around," she said. "[The administration] is basically dying by their own hand."
And while she believes Biden is an improvement from his "autocratic" predecessor, Gaubeca said that is no longer enough.
"The reality is, while we're sitting here arguing politics and rhetoric back and forth, people are suffering," she said. "And we aren't creating solutions for people who would ultimately contribute greatly to this country."
Hollie Webb, supervising attorney with Al Otro Lado's Border Rights Project
Grade: F
Why:
Webb, who spoke with Insider for the first time in January, joined other experts in slamming the administration's nonexistent asylum measures and the danger so many migrants face as a result.
"Just because Trump has left doesn't mean things have changed — the situation at the border has worsened in a lot of ways," Webb said. Data from the organization Human Rights First suggests there have been thousands of kidnappings, rapes, and assaults since Title 42's installment.
She criticized Biden for what she sees as the administration weighing its political calculus over the importance of immigrant rights, especially ahead of the impending 2022 midterm elections.
"Regardless of what the Biden administration does, the conservatives are going to say that Biden is pushing for open borders," Webb said. "But there is nothing further from the truth right now."
And while the president's unfulfilled promises are disappointing, Webb said approaching the issue from that perspective minimizes the true tragedy.
"The failure to keep a campaign promise is one thing if we're talking about morality," she said. "But to me, it's the fact that thousands of people are being forced into incredibly dangerous circumstances with no regard whatsoever if they live or die."
"That, to me, is the huge human rights crisis at the border," Webb added. "And it's being tossed around as a political issue."
What the administration should do better:
For Webb, the solutions are simple. She urged the administration to reopen the border, rescind Title 42 and MPP, and funnel resources into receiving migrants in a humanitarian way.
Thousands of people are being forced into incredibly dangerous circumstances with no regard whatsoever if they live or die.
"We put asylum seekers through this maze of obstacles," Webb said. "I don't think people understand the danger people face as asylum-seekers at the border."
She also stressed the need for broader fixes to the entire immigration system, which she said has become a jumbled, complicated mess after years of rotating presidential administrations making minor adjustments to address their own specific priorities.
Bob Carey, former director of the Office of Refugee Resettlement under the Obama administration
Grade: N/A
Why:
Bob Carey, the former director of the Office of Refugee Resettlement under the Obama administration, told Insider that he didn't feel comfortable giving the administration a grade. Last summer, he was cautiously optimistic and gave the administration a B/B+.
"I think it's not the way many advocates would've hoped it had gone," Carey told Insider, referring to the Biden administration's approach towards immigration policies and promises. "I think it's positive that there was an Afghan resettlement program, aside from the fact that arguably, there should have been more advanced planning for that ability and contingency, because it would not be unexpected given the circumstances that there might be a need for refugee protection in that context."
Carey said that following the Autumn evacuation, it was shortsighted for the White House to encourage thousands of Afghan refugees to apply for humanitarian parole with no communicated plan after that, instead of bolstering the Special Immigrant Visa (SIV) or the US Refugee Admissions Program.
"I think what's still unaddressed is what happens to Afghans who've fled the country or are in the country, whose lives are still at risk, or who lack some kind of permanent solution or semi-permanent solution," Carey added.
The Afghan Adjustment Act, a proposed bill, would allow Afghan refugees admitted under humanitarian parole to apply for permanent status after one year.
Carey said that he had "hoped for more," and that "there could have been other solutions that would not have continued the Trump Administration policies that we found so problematic."
What the administration should do better:
Carey said that on the immediate front, the Biden administration can improve on messaging so that their policies and statements on immigration are in sync with each other.
He added that the administration should immediately end the Title 42 policy, and commit to restructuring the US asylum system so that in the following fiscal year, the refugee resettlement cap can actually be met.
Roberto Lopez, TX Civil Rights Project
Grade: F
Why:
"At the one year mark, the Biden administration's response to the immigration crisis that the Trump administration caused has been horrendous," Roberto Lopez, an organizer with the TX Civil Rights Project, told Insider.
In December, the Biden administration was ordered to revest 6.6 acres of land to the Cavazos family, whose land was seized by the federal government for Trump's border wall in 2018 — months after the Biden administration announced it would cancel border wall construction contracts in Laredo and the Rio Grande Valley.
Lopez told Insider that the Cavazos case is a unique one so far, with the administration still defending other similar lawsuits.
Lopez and his organization were critical of the Biden administration's decision to defend the Title 42 policy as well as the Remain in Mexico resettlement policy.
"They're shooting themselves in the foot because then the apprehension numbers might double. Someone who crossed once goes in and then gets put into Mexico. And then because they're in harsher or severe conditions, they decide to try again," Lopez said. "And so, as the numbers go up, then the opposition gets to say, 'Look, we're in this horrendous crisis.'"
In the last year, Lopez said, there has been more investment into border patrol and police along the border and the presence of anti-immigrant militias and protesters has increased, in part leading the National Butterfly Center in the Rio Grande Valley to close indefinitely.
What the administration should do better:
"I think, everyone needs to get on board with beefing up our ports of entry, our bridges, building migrant resource centers all across the country in some of the major hubs where people will be going to, and doing the same thing at the bridges as well, so that way people can get brought in [quickly], safely, humanely, and then sent to their destination," Lopez said, claiming that the current configuration of policy and enforcement is forcing people to dangerously cross the Rio Grande river.
He added that the Biden administration should not boost CBP's budget at the border, whether it be for staffing or border wall repairs.
Lopez, too, said that ending Title 42 is where the Biden administration must start.
"The visa lottery right now is capped at 55,000 individuals, and 14 million people from across the world applied to come to the U.S," Lopez told Insider. "So, there's no real meaningful legal pathway to come in."
Curtis Morrison, Immigration lawyer with Morrison Urena law firm
Grade: F
Why:
Curtis Morrison, an immigration lawyer, whose lawsuits mainly target the State Department's diversity visa policies, said that the Biden administration has failed in fulfilling international immigration promises.
"I would base that on the fact that they have not removed the bureaucrats at the Bureau of Consular Affairs, that implemented the Muslim ban and the labor ban, and that completely stifled legal immigration," Morrison said, pointing to Edward Ramotowski, the Deputy Assistant Secretary for Visa Services at the Bureau of Consular Affairs.
Ramotowski, in 2019, defended the ban and its waiver program in front of Congress.
Morrison's law firm has sued the Biden administration on its handling of diversity visas on multiple occasions.
In June 2021, Morrison's firm sued the Biden administration along with 24,000 visa lottery winners and plaintiffs in the Goodluck vs. Biden case, accusing the administration of stalling on processing visas, and allowing an annual stockpile to expire.
In October 2021, a DC judge ordered the Biden administration to save 7,395 diversity visas that were set to expire and award them to a group of plaintiffs and applicants.
Morrison's firm has also sued the State Department in various lawsuits, alleging that the department is not allowing immigrants in unstable countries, or countries with closed US consulates like Iraq, Afghanistan, Belarus, and Sudan, to move their visa interview locations – trapping them in limbo.
He said that following their Hamad vs. Blinken lawsuit, the State Department has taken steps to facilitate interviews for the Iraqi plaintiffs, but so far none have been granted visas.
What the administration should do better:
"Immigration is a diplomatic tool. And right now it's actually being used against us because we are starting to look like a scam," Morrison said.
First and foremost, he said that Biden and the State Department must "surrender that authority that they found under Trump."
"He gave them a new tool and they were all excited about it, and they don't want to give it up," Morrison said, adding that changes should start at the Bureau of Consular Affairs.
Otherwise, Morrison agreed that alongside ending Title 42, the Biden administration needed to honor international asylum commitments as well as their own stated resettlement goals.
Oliver Merino, coordinator for Immigration Legal Resource Center
Grade: F
Why:
Last summer, Oliver Merino said that the Biden administration was actively failing. At the same time, a potential immigration component was being considered in the Biden administration's Build Back Better funding package.
But when immigration measures were struck from the Biden administration's package, "a lot of air was sucked out of the atmosphere." Merino said that aspirations on the legislative front have been stifled by a unified GOP and a handful of Democrats.
After a year, Merino said there is "more of a considerate effort to put a magnifying glass of what the administration is doing and not doing."
"There was the promise of closing immigration detention centers," Merino said. In December 2021, DHS Secretary Alejandro Mayorkas said that the administration would close two ICE detention facilities in Texas and Louisiana, leaving dozens still in operation, according to the ACLU.
"And more people are now in detention than when he came to office," Merino said. According to Syracuse University's Transactional Records Access Clearinghouse, which analyzed ICE detention data, by the end of 2021, the Biden administration had detained 50% more immigrants than the prior administration.
What the administration should do better:
"What they fail to do also says a lot about what their priorities are," Merino told Insider, saying that for many advocates, hope has faded.
Merino added that the ongoing deportation flights for Haitians, Venezuelans, and other immigrants – enforced through Title 42 – needed to stop.
Like others, Merino said that the administration should rescind Title 42 and the Remain in Mexico policies immediately.
He added that beyond family reunification efforts, the Biden administration should honor its commitment to close all immigration detention centers and allow those who have been detained to have fair immigration hearings.