The World

Joe Biden Has Two Immigration Policies

The president is working to make America’s asylum system more humane, while preventing anyone from reaching it.

A crowd of people stand near the edge of the border wall.
Members of the House Border Security Caucus visit the border and talks to CBP agents in El Paso, Texas, on May 21. David Peinado/NurPhoto via Getty Images.

President Joe Biden’s asylum and immigration policies have, so far, been a bit of a head-scratcher for casual observers. We witnessed the newly sworn-in president sit before the flash of cameras and sign away emblematic Trump-era restrictions on Day One, only to then note that these moves were largely symbolic—the elimination of the infamous Muslim ban, for example, was negated by broader immigration restriction that remained active through March. Biden’s decision not to raise Trump’s fiscal year’s refugee cap produced such outrage among his supporters as to get him to reverse course, albeit too late to realistically actually admit anywhere close to the new cap of 62,500 refugees. He set up a family reunification task force that has brought a number of separated parents back to the U.S., and yet Vice President Kamala Harris prompted immediate backlash upon traveling to Guatemala and telling others not to come to the U.S., apparently unconcerned about the fact that seeking asylum is a right protected by both domestic and international law.

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What pattern exists to this seemingly ad hoc array of decisions? Is there a cogent overarching strategy here, or is the Biden administration making it up as it goes along, contending with circumstances as they emerge?

There’s no doubt that some initiatives are purely reactive, such as the use of poorly managed emergency influx facilities for unaccompanied minors after officials failed to properly prepare for an expected increase in asylum-seeking children coming across the border. Still, taken collectively, the administration’s actions and pronouncements reveal a long-term, two-pronged vision that makes more sense when you consider immigration’s unique attributes as the area of federal policymaking most split between domestic and foreign components. While other high-level areas of decision-making fall more clearly along one track—infrastructure policy is mainly domestic; defense policy is mainly foreign, and so on—immigration is quite literally separated out into outward- and inward-facing government departments, with the State Department handling visas abroad and the Department of Homeland Security overseeing enforcement and processing on U.S. soil.

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This means that it’s possible for a single administration to have two distinct and superficially contradictory executive positions on immigration. In Biden’s case, this has manifested itself in the dual approach of liberalizing the asylum system at home while making it more difficult for anyone to actually enter it.

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Biden’s approach reflects the longtime moderate Democratic id on immigration, which views humanitarian migration as a problem that can be solved humanely, but a problem nonetheless. The view is disorienting because we tend to think of immigration agendas as singular and self-consistent. Donald Trump and his policy mastermind Stephen Miller certainly had a clear hyper-restrictionist throughline to their foreign and domestic initiatives, issuing executive prohibitions on immigration from overseas and closing off the system internally. Their efforts created the so-called paper wall, a mass of executive regulations that proved a formidable obstacle to immigrants and would-be immigrants both inside and outside the country.

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Barack Obama took a decidedly neoliberal attitude, making visa tweaks primarily designed to help high-skilled workers and entrepreneurs while infamously ramping up data-driven domestic enforcement in an ill-advised effort to convince Republicans in Congress to collaborate with him on immigration legislation. When that gambit predictably failed, he switched gears and issued orders narrowing enforcement categories and establishing the Deferred Action for Childhood Arrivals program, which offered temporary protections and work authorization to hundreds of thousands of people brought to the United States as children; the move was at once an expression of compassion and a way to give work authorization to a sizable group of U.S.-educated young people at a time when worries about a rapidly aging population were first emerging. In response to increases in the number of asylum-seekers, Obama became the first president to employ the influx shelters and family centers that would engender so much controversy for him and his successors. It was, in his view, a pragmatic approach, characteristic of his pragmatic and market-friendly approach to immigration across the board.

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Biden’s approach can be puzzling not only because the agendas are different but, at first glance, seem totally at odds with each other. Domestically, he’s signaled a desire to make the enforcement and adjudication systems more navigable and humane and less presumptively labyrinthine and cruel. So far, this has mostly taken the form of undoing the work of his predecessor, a process that’s been halting and overly cautious but is moving in a clear direction. Recently, Attorney General Merrick Garland rescinded Trump-era immigration court precedent decisions that made asylum more difficult to win, and DHS gave ICE immigration prosecutors more discretion to drop cases, a move that goes above and beyond simply rolling back the clock to the Obama years. Plenty of aspects of the domestic enforcement system remain abhorrent, like the still-sadistic immigration detention system, but even there the administration is taking tentative steps, including closing a couple of the most infamous private facilities.

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But what is moving much more quickly is Biden’s grand external strategy of choking off the possibility of future humanitarian migration to the United States, at least any such migration that the government can’t directly control. His much-touted effort to address the “root causes” of migration aims to utilize aid and investment to remove the sources of popular discontent and danger driving migrants north. For when that endeavor proves insufficient, officials have also moved aggressively on the blueprint of border externalization, coordinating with Mexico, Honduras, and Guatemala to deploy troops along their own borders to block migrants from moving north to the U.S. Special Border Patrol tactical units are reportedly training Guatemalan border personnel.

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Meanwhile, on the U.S.-Mexico border, Biden has suspended construction and funding for Trump’s physical border wall but is seeking funding for virtual wall infrastructure, hoping to replace steel bollards with less visually intimidating but much more efficient drones, sensors, radar, and other technical implements. Already, Homeland Security quietly began deploying a biometric surveillance app on would-be asylum-seekers. Most glaringly, the administration has kept in place the Trump-issued pandemic-response order (known as Title 42) used to quickly expel migrants without allowing access to the asylum system under an extremely tenuous public health rationale. The asylum system might become more streamlined, charitable, and respectful of due process, but migrants will have to overcome an overwhelming gantlet to enter that system in the first place.

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The reason for this is that Biden sees the writing on the wall when it comes to humanitarian migration. We are already seeing climate migrants arriving at the border, but current numbers don’t hold a candle to the volumes of people who will be displaced by future climate catastrophes and seek protection in the United States. With this two-pronged approach, Biden is ensuring that he keeps the pro-immigrant domestic Democratic voter base satisfied with an evidently benevolent local immigration processing and enforcement infrastructure while setting the groundwork to block arrivals he views as unmanageable, the law notwithstanding. The government won’t be treating them harshly because they’ll never make it to U.S. jurisdiction.

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This strategy isn’t unprecedented, and in fact Europe may offer a bit of a preview. The European Union’s openness to refugees particularly following the onset of the Syrian civil war engendered a backlash much like the xenophobic wave that crested Trump to the presidency in 2016. The bloc’s political leaders have responded by working on the integration of refugee populations internally but blocking additional arrivals. The strategy culminated in a deal with Turkey to prevent Greece-bound migrants from completing their journey. While human rights organizations continue decrying the agreement, it’s been in place for more than five years and largely disappeared from daily political discourse. For domestic political constituencies, even liberal ones, refugees become abstractions as soon as they’re outside your borders.

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Even the seemingly pro-refugee initiatives that the Biden administration has announced, such as the expansion of the Central American Minors program, are designed to maximize its control over how many people can seek humanitarian protections, who actually receives them, and when they do. As civil libertarian Eddie Hasbrouck told me at the start of the administration, Homeland Security has always considered it a horrible defect that people can just show up at the border and exercise their right to petition for protections. The heavy-handed foreign immigration policy is part of an effort to stop that, and get everyone used to the idea that, when it comes to asylum, the main obstacle is getting anywhere near an immigration courtroom to begin with.

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