Minutes before sitting down with House Majority Leader Kevin McCarthy and other Congressional leaders on May 16, President Biden was asked if he had anything to say about the Southwest Border. It had been nearly a week since pandemic-era Title 42 immigration policy instituted by Biden’s predecessor, Donald Trump, had ended, and the overwhelming spike in border crossings officials many had predicted hadn’t materialized.
The border is “looking much better,” Biden said. “It’s looking much better.”
Biden’s looking to get credit for the new rules he put in place to replace Title 42, ones that set standards for who is allowed to apply for asylum in the U.S. that Biden’s critics on the left say are as restrictive as those imposed by his predecessor, Donald Trump. The new rules largely deny entry to those who previously tried to cross between ports of entry, didn’t apply for protection in any country they transited through on the way to the U.S., or approach immigration officers without an appointment made through a new U.S. government app.
Four years ago, Biden made clear his presidency would unwind Trump’s entire approach to immigration. The record he is building is turning out to be less clear-cut, potentially scrambling the debate about the border during next year’s election.
Biden “wants to send the message that he’s willing to go where Trump went, really make his case that he’s as tough as anyone on people crossing the border illegally,” says David Bier, associate director of immigration studies at the Cato Institute, a libertarian think tank in Washington, D.C. “It’s certainly the case that he thinks it’s a political necessity.”
The new asylum rules have been blasted by immigrant rights advocates on Biden’s left, both in public comments and in private meetings with White House staff. Groups representing immigrants quickly sued the government to block the rules, saying they are a return to Trump-era asylum restrictions and violate U.S. asylum law designed to offer protection from people fleeing political persecution and state-sponsored violence.
But Biden’s tough new policy, at least in the short term, seems to be working. During the week after the changes went into effect, the number of people Border Patrol encountered crossing between ports of entry fell to an average of 4,000 per day, down by more than half from the days leading up to May 11 rule change, according to figures released by the Department of Homeland Security.
Read more: Migrants Struggle to Make Asylum Appointments Through U.S. Government App
Those figures haven’t stopped critics on the right from continuing to insist that Biden is failing the country on the border. In the House, Rep. Marjorie Taylor Greene, cited the border in introducing articles of impeachment last week against Biden. And Trump claimed in fundraising emails that federal officials were not being honest about the situation since Title 42 ended. “God only knows the REAL NUMBER of illegal aliens who’ve charged right past our wide open border since Biden opened the floodgates last Thursday,” read one of Trump’s email solicitations for donations sent out Thursday.
Trump put immigration at the center of his successful 2016 presidential campaign. As President, he built and upgraded hundreds of miles of border fencing, instituted a ban on immigration from multiple Muslim-majority countries, slowed processing of legal immigration applications, and instituted a policy that separated parents from children at the border. Polls taken during his administration found most of Trump’s immigration agenda wasn’t supported by a majority of the American people.
At a CNN Town Hall event on May 10, Trump falsely insisted the border wall had been completed during his presidency, and doubled down on his family separation policy. “When you have that policy, people don’t come,” Trump said. “If a family hears that they’re going to be separated, they love their family, they don’t come. I know it sounds harsh.”
Some of Biden’s earliest actions as President amounted to a repudiation of his predecessor’s approach to immigration. On his first day in office, Biden sent a sweeping immigration reform bill to Congress, stopped construction of Trump’s border wall, reversed Trump’s visa ban that applied to many African and Muslim-majority countries, and shored up the Deferred Action for Childhood Arrivals (DACA) program that Trump had tried to end.
But the contrast gets fuzzier when it comes to Title 42, which Biden had vowed to repeal but ultimately stayed in place for more than half of his first term. White House officials rankle at comparisons of the new asylum rules to Trump’s immigration policy. They argue the new rules are consistent with Biden’s comments on the campaign trail. During a Democratic primary debate in July 2019, Biden said that allowing people to stay in the U.S. who crossed between ports of entry was unfair to people applying to enter from overseas. “If in fact you say you can just cross the border, what do you say to all of those people around the world who in fact want the same thing, to come to the United States and make their case, that they have to wait in line?” Biden said. “If you cross the border illegally, you should be able to be sent back.”
Some immigrant rights groups believe Biden’s new rules run counter to an American tradition of allowing others to seek safety and start a better life. “The administration has said, ‘This isn’t like the Trump rule. We’re not like Trump,’ and it’s very hard for us to understand how that is the case,” says Karen Tumlin, founder and director of Justice Action Center, a Los Angeles-based nonprofit that works to protect immigrant rights. “They’ve pointed to the fact that there are some exceptions, but they also talk a lot about the discretion that will be at the ports of entry. And there’s also no access to counsel when folks are first arriving. They’ve talked a lot about increasing the speed of removals under expedited removal, which we know is extremely problematic, and it’s basically where due process goes to die.”
Administration officials stress that the new system in place takes a carrot-and-stick approach to immigration. While Biden has raised the bar for granting asylum, he has also worked to bring more people in through legal pathways in an effort to reduce the number of people hiring smugglers to cross the border. Biden’s administration has expanded temporary parole programs for people fleeing Cuba, Venezuela, Nicaragua and Haiti, and plans to open new offices in Colombia and Guatemala, where migrants can see if they qualify for lawful means to enter the United States.
“This is a smart and pragmatic response by the American government to a new set of challenges on the border,” says Simon Rosenberg, a long-time Democratic strategist. Voters may end up rewarding Biden for coming up with a workable solution to a complex problem on the border, Rosenberg says.
Recent polling shows that an increasing number of Democrats and Independents are dissatisfied with current levels of immigration in the U.S. Gallup polling from February found that the percentage of Democrats wanting less immigration to the U.S. increased from 11% in 2022 to 19% this year. During that time, the number of independent voters wanting less immigration rose from 19% to 36%.
In carving out a solution that both opens more legal pathways and tightens up asylum rules, Biden may argue to voters that he’s found a way to manage the country’s immigration system as effectively as possible given that Congress refuses to reform the system holistically or approve the resources on the border he’s requested.
“This is far more about the President being able to explain to the American people that he’s put together a plan that makes the American border and immigration system work,” Rosenberg says. “Now I think they’ve put together a smart plan that he’s going to be able to explain to the American people that, look, I was given a tough job here, but we’ve done a pretty good job and made things better.”
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