Biden's lose-lose immigration strategy

President Joe Biden is between a rock and a hard place when it comes to dealing with the border mess. If he rolls back former President Trump's draconian border policies without first scaling up the asylum infrastructure that Trump gutted, the right will accuse him of losing control of the border. If he waits, the left will accuse him of continuing Trump's awful policies.

Since he's going to be damned either way, he might as well do the right thing and throw out all of Trump's awful anti-asylum policies, including Title 42, an emergency executive order that used COVID-19 as an excuse to give authorities carte blanche to turn away migrants.

At Biden's first presidential press conference last week, the allegedly liberal press pushed a line of questioning borrowed straight from the playbook of right-wing restrictionists like Sen. Tom Cotton (R-Arkansas) who have accused Biden of hanging a "big welcome sign" on the border. PBS' Yamiche Alcindor told Biden that his message that now was not the time to come to America was not being heard in Central America given all the migrants flocking at the border because they viewed him as a "moral and decent man" — as if that was a vice. Moreover, she demanded to know why some migrant families were being allowed to stay in the country despite Title 42 — implying that this was contributing to the border rush.

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But the notion that migrants make the 1,000-plus-mile dangerous schlep, children in tow, only — or even primarily — because of the guy in the White House is belied by both logic and facts. The truth is that Trump's cruelties deterred migrants trying to escape gang violence and starvation only at the margins. National Immigration Forum's Danilo Zak notes that the apprehensions at the Southwest border — a proxy for the overall rate of unauthorized migration to the United States — dropped sharply to around 17,000 last April when the coronavirus pandemic initially hit. But since then they have steadily risen, reaching around 75,000 in December (when Trump was plotting to overturn the election) before touching around 100,000 in February after Biden took the reins. Moreover, numbers like this in February, which conservatives like Arizona Governor Doug Ducey insist have "never" before been seen, were actually seen in 2018 when the apprehension rate touched 130,000, which is nothing compared to 2000 when it was 211,328!

The 100,000-apprehension number also overstates the border problem. Why? Because it no longer accurately represents the count of new migrants trying to enter the United States. That number, Zak points out, is likely much lower than previous periods, given that an estimated 37 percent of the migrants apprehended between February 2020 and March 2021 were repeat crossers — up from around 7 percent before Trump issued Title 42. Prior to that order, unauthorized migrants, especially asylum seekers, were accorded a small modicum of due process before being ejected from the country. But this also meant their illegal entry was properly documented and any repeat offenses were considered a felony that could get them disbarred from the country for a long time.

In its zeal to kick out as many border-crossers as fast as possible, Title 42 scrapped all due process. It denied so much as a hearing to asylum seekers, a violation of their rights under both U.S. and international law. Trump even ejected pregnant women and children without exception. But this also meant that the legitimacy of their petitions could not be determined and repeat crossings couldn't be treated as felonies worthy of disbarment. Hence some migrants try crossing again and again, sometimes several times a day, artificially inflating the apprehension numbers. Indeed, if you subtract these repeat crossers from the total apprehensions, there is little difference between the number of migrants trying to enter in the first few months of 2019 and 2021. Trump resorted to Title 42 because he thought it would be the cheapest way to kick out border-crossers en masse. But what he saved in legal resources is being spent on snagging repeat offenders.

So the question is why didn't Biden scrap this order right off the bat along with Trump's "Muslim" travel ban and "Remain in Mexico" policy that warehoused Central American migrants in unlivable Mexican camps for years while their asylum petitions were considered? He quickly carved out an exception for unaccompanied minors, to be sure — which is why Central American migrants, especially those stuck in Mexico, are sending off their kids alone to join relatives in America. But otherwise Biden has refused to get rid of this order and, shockingly, is even defending it in court.

Part of the reason is that he wants to keep this tool at his disposal in case he needs to quickly clamp down on the border again in response to another Covid-19 wave. However, he does not intend to use it as Trump did to simply seal the country from immigrants. There is some evidence for that given that contrary to Biden's claim at his press conference that he is "sending back the vast majority of the families that are coming," he is letting half of the migrants actually in – which is up from about a quarter in February.

He needs to relax things even more, but why is he lying about his kinder, gentler approach instead of taking credit for it? Because he fears that if even a single migrant turns out to be a super-spreader or a violent criminal, he'll face a restrictionist-led political backlash.

But this represents a profound failure to set the terms of the debate that might also turn out to be a poor political strategy. The fact is that unless Biden doubles down on Trump's border cruelty, there will be no appeasing restrictionists. They'll find something to blame him for no matter what. However, pushing Trump-light policies will lose him the support of immigration advocates and his progressive base, which would be far more lethal to his presidency.

So Biden should announce a date for scrapping Title 42 and get to work rebuilding the physical infrastructure to relieve overcrowding in border facilities and the legal infrastructure to quickly process asylum claims. He's already fast-tracking the release of unaccompanied minors to their U.S. sponsors, even barring the Department of Health and Human Services, which is responsible for their care after the first 72 hours, from sharing information about the sponsors with ICE, a Trump-era policy that turned asylum into an enforcement tool. He's also slowly started processing the asylum petitions of the 25,000 families stuck in Mexico. But he needs to do more.

The measure that'll make the biggest difference is creating more avenues for low-skilled migrants to legally work in the United States. National Immigration Forum's Zak points out that there are far more single, Mexican men compared to Central American families and children in the current border surge. This represents a return to past patterns. So if Biden wants to prevent his presidency from becoming the source of a future undocumented problem, he has to go to bat for creating a usable guest worker visa program for low-skilled immigrants. And as I've previously written, this is something that his proposed immigration bill is particularly bad on.

Whether Biden likes it or not, immigration is going to define his presidency. The question is whether he sets his own narrative or lets restrictionists — and their media enablers — set it for him. He can fail on Trump's terms, or succeed on his own.