Ayyyeee… What’s Goodie Everyone. So I got some tea and it involves the Biden Administration and it’s battle to uphold some of the former administration’s immigration policies.
President Joe Biden promised to unravel the “moral and national shame” of the immigration policies enacted by President Donald Trump. But that wasn’t the position Biden’s lawyers took in a federal courtroom earlier this year. While appearing before a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit, government lawyers urged the court to Biden enforce a restriction imposed by Trump that allowed migrants to be quickly turned away at the border.
Judge Justin R. Walker, an appointee of Trump, was confused. The same lawyers had argued weeks earlier that enforcing a different Trump-era border rule would not “align with the administration’s” values. Now, they are saying the opposite. “What are we to make of this?” Judge Walker asked. The answer is found in the collision of Biden’s fervent campaign trail promises to undo Trump’s harsh immigration policies and the grim reality of trying to manage a surge of migrant crossings amid criticism from Republicans that the president is weak on border security.
The government lawyers in Judge Walker’s courtroom were fighting to uphold a Trump-era public health rule allowing the United States to turn away migrants without providing them an opportunity to ask for asylum. They have sought to defend the Biden administration and former Trump administration officials against lawsuits from parents who were separated from their children at the border, even after Biden called the separations “criminal.” And winners of a visa lottery, including those increasingly at risk in Ukraine, were surprised to see federal lawyers continue to delay the processing of their green cards.
Tension has also resonated within the White House, where senior officials have been anxious that unwinding the Trump-era border restrictions would open the United States to an increase in illegal crossings at the southern border and fuel Republican attacks that Biden is too lenient on illegal immigration. Biden has indeed taken steps to roll back much of his predecessor’s agenda on immigration, including sweeping bans on Muslim majority countries and a rule allowing officials to deny green cards to immigrants in need of public assistance.
According to the Migration Policy Institute; Biden has taken nearly 300 executive actions on immigration. Nearly 90 of them were to at least begin rolling back Trump administration policies, most of them technical rules that typically went unnoticed by the public. The administration has also allowed minors to cross the border. This weekend, the Centers for Disease Control and Prevention exempted children and teenagers from the Trump-era border rule, which justifies rapidly turning away migrants as a public health measure, minutes before a court order would have forced Biden to apply the rule to the minors.
Biden warned that he would need time to undo Trump-era rules, in part because he said unwinding them immediately could encourage migrants to journey to the border. While the administration declined to comment on continuing litigation, Vedant Patel, a White House spokesman, said, “We all agree that our immigration system is outdated and in bad need of reform.” But, he said, “Making the necessary changes isn’t going to happen overnight.”Still, many people, including some caught up in the Russian invasion of Ukraine, say time is running out for them.
While Biden had formed a task force last year to help unite minors who were separated from their parents under Trump’s “zero tolerance” policy, the government walked away from settlement negotiations late last year for the families of some of the 5,500 children. After it was revealed that the government was considering $450,000 payouts to families, which prompted quick backlash from Republicans and conservative outlets, Biden told reporters that the payouts were “not going to happen.” The president later said the families deserved some form of compensation. But the administration pulled out of the negotiations in December and has sought to get the courts to dismiss families lawsuits against not just the United States, but also the Trump administration officials involved with putting the policy in place.
During a hearing in January, a lawyer for the government, Sharon Swingle, said using Title 42 to keep asylum seekers south of the border was necessary to reduce the spread of the coronavirus in border detention facilities. Judge Walker reminded Swingle that the Biden administration had previously argued that forcing migrants back to Mexico while they await their asylum cases would not “align with the administration’s values” because of the risk of violence and sexual assault from cartel members south of the border. But Swingle once again pointed to the public health emergency as reason to continue using Trump’s border restriction. “I don’t believe,” she said, “there is a contradiction here.”