President Joe Biden’s executive order, blocking asylum-seekers from crossing the southern border between official points of entry, was characterized by the American Civil Liberties Union as the “same approach as the Trump administration’s asylum ban.” The New York Times headlined that the order “leans on Trump’s favorite immigration law,” and CNN said it “pulls from Trump’s immigration playbook.”
Such statements may be narrowly correct but ignore context. Fundamentally, Biden and Trump do not have the same approach to immigration because they do not share the same vision for America.
Trump wants to shut down our immigration system and literally wall off the country so far fewer people can become Americans. His policies sought to restrict not only illegal immigration—through brutal means such as family separation—but also legal immigration—severely limiting refugee resettlement and trying to restrict the issuance of student and work visas.
Biden wants to fix our immigration system to welcome those pursuing the American dream and to keep our economy growing. But he wants to do so in an orderly fashion so state and local government resources are not strained by large and sudden influxes of new residents.
While this week’s executive order dramatically shifts asylum policy, it does not depart from Biden’s strategic vision.
One year ago, I summarized the border reforms implemented by Biden and Homeland Secretary Alejandro Mayorkas:
The plan is not about slow-walking asylum cases while desperate people suffer but steering asylum-seekers to safer pathways to America—those less prone to exploitation by deadly smuggling operations.
In January, the Homeland Security Department launched a smartphone app so migrants outside the U.S. could apply for asylum and schedule appointments at ports of entry. In April, Mayorkas announced plans for migrant processing centers abroad, beginning with Guatemala and Colombia. And the administration has created “humanitarian parole” programs for those leaving Cuba, Haiti, Nicaragua, and Venezuela, allowing migrants with American financial sponsors to stay for up to two years.
All these programs providing orderly, legal pathways to America remain in effect. But on their own, they can’t stop the atypically heavy flow of asylum-seekers who cross the border unannounced and without financial sponsors.
Asylum is not supposed to be available for every person interested in coming to America for a job but for people threatened by persecution in their home countries. But under the law, your case must be adjudicated if you make it across the border and request asylum. Because of the enormous backlog and paltry number of immigration judges (1.3 million pending asylum cases, 682 immigration judges), adjudication can take years.
Biden’s executive order notes that “From 2014 to 2019 … less than 25 percent of cases ultimately resulted in a grant of asylum or other protection.” Yet immigration judges often make the compassionate decision to let migrants remain even if they aren’t eligible for asylum. That creates a huge incentive to pursue asylum.
That’s not completely bad, despite the bigoted rhetoric coming from Trump and his nativist allies. Immigrants have buoyed the Biden economy, spurring growth and cooling inflation by expanding the workforce and strengthening supply chains. But at the same time, in the short run, sudden increases in migrants strain cities’ capacity to provide shelter, schooling, and other services.
To effectively shut down asylum-seeking on the southern border is a harsh step. And the argument can be made that it’s harsher than necessary and politically motivated, especially since the flow of migrants has declined since a sharp peak in December.
But metropolitan areas such as New York, Seattle, Denver, and Chicago, as well as areas across Massachusetts, continue to struggle with shelter capacity. And even though Biden has increased the number of immigration judges by 40 percent, they haven’t been able to keep up with the pace of asylum applications and the case backlog has grown. Temporarily halting the flow of asylum-seekers is a reasonable way to relieve the pressure on overwhelmed cities and judges.
Whether Biden is on firm legal ground remains to be determined. He is basing his order on a provision of the Immigration and Nationality Act (INA) that Trump aggressively wielded:
“Whenever the president finds that the entry of any aliens or any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”
While that suggests expansive presidential powers, an American Immigration Council analysis notes that a Trump-era Supreme Court ruling concluded the provision “could not be used to ‘expressly override’ other provisions of the INA.” Moreover, the extent of the provision’s reach has not been fully tested in the courts and remains “legally uncertain.” Biden’s order will be challenged by the ACLU and may eventually get struck down. However, in March, his Justice Department managed to win a case in front of a Trump-appointed judge, preserving the president’s power to broadly grant humanitarian parole. Biden is wise to assert the power he needs and take his chances with the judiciary.
You may be unsettled that Biden cites the same clause once cited by Trump, but he is not exerting power to achieve the same ends as Trump. You may still be opposed to Biden’s order because it will lead to the denial of entry to some desperate people in the short run, but there is no perfect short-term solution, and there is the risk of Trumpian brutality in the long run.
