Biden Is Still Turning Away Migrants at the Border

Trump-era Covid-19 border policies are being carried over to the new administration. For weeks, pundits, conservative politicians, and anonymous Border Patrol sources have been warning of a crisis brewing at the U.S.-Mexico border.

They claim there’s a “surge” in migrant families and unaccompanied children arriving at the border each day and that the Biden administration — which promised to take a softer stance on immigration than its predecessor — is being overwhelmed by record numbers of unauthorized migrants.

But the real crisis at the border is that most people still aren’t being let in. Almost a year ago, the U.S. abandoned its legal responsibility to asylum-seekers using a little-known health statute called Title 42 to turn them away. And President Joe Biden has not reversed Donald Trump’s move, even as he has undone other policies implemented under the Trump administration. Biden has touted his commitment to reform the U.S. immigration system, but his reluctance to lift Title 42 points to a central contradiction underpinning his entire philosophy on immigration: justice for immigrants who are already here but not necessarily for those who want or need to come in the future.

Title 42 was invoked by the Centers for Disease Control and Prevention in March 2020 to shut down the border. The statute gives public health officials power to ban a person or groups of people from entering the U.S. if there’s “serious danger of the introduction of” a “communicable disease.” At the time, the U.S. already had more than 13,000 confirmed coronavirus cases. CDC officials tried to push back against Trump and resist his instructions to close down the border to unauthorized migrants, arguing that there was no public health justification for shutting down the border. But the president prevailed: The border was closed off to asylum-seekers, and it’s stayed shut since.

Since then, more than half a million people have been “expelled” from the U.S. under the authority of Title 42, according to Customs and Border Protection data. Under normal circumstances, migrants who arrive at the border would be processed by immigration authorities and put in deportation proceedings — a process that can take months or even years. Under Title 42, migrants are instead quickly removed from the U.S. without a hearing to argue their case before an immigration judge. Rather than being formally deported, they’re “expelled” without any semblance of due process.

But the CDC order didn’t protect Americans from the “introduction or spread” of the coronavirus; the virus was already here. By late March, the U.S. had more than 80,000 confirmed coronavirus cases. Mexico, where most asylum-seekers arrive before trying to enter the U.S., had 475. It’s possible that this was an undercount because testing was limited then. And yes, it’s possible that had asylum-seekers been allowed into the U.S., they could have contracted the virus and potentially spread it further. Some studies have found that the coronavirus has spread rapidly in immigrant communities. But that’s because immigrants, particularly those who are undocumented, often work jobs that put them at risk of being exposed to the virus — not because, as the CDC order implied, immigrants themselves are laden with the disease. Looking at the numbers, it’s clear that someone who crossed into the U.S. from Mexico would be at higher risk of getting the coronavirus from someone in the U.S. than they would be of infecting someone else.

The pandemic was a pretext for shutting down the border, but the Trump administration did little else to spread the slow of the coronavirus within the country. In the year since the border was sealed to unauthorized migrants, more than half a million people in the U.S. have died from Covid-19. At the same time that he characterized asylum-seekers as a threat to public health, Trump downplayed the seriousness of the pandemic, letting the virus spread rapidly across the country.

What Biden doesn’t seem to grasp, as Trump failed to before him, is that no amount of press conferences or restrictive immigration policies will stop people from coming to the United States.

What the border shutdown did succeed at was sending hundreds of thousands of asylum-seekers to countries where they’re likely to be put in danger. Some were expelled back to Mexico despite not being from there; others were put on flights to their countries of origin. A February report from the Department of Homeland Security obtained by BuzzFeed News acknowledged that Haitian migrants “may face harm” upon being expelled from the U.S. to their home country. Still, the expulsions have continued.

Biden could end the Title 42 border shutdown today. But at a press conference last week, Biden’s top immigration officials reiterated a message that began under Trump: The border is closed. “This isn’t the moment — at no moment is it appropriate — to come to the United States in an irregular manner,” Roberta Jacobson, a former ambassador to Mexico who’s now working on Biden’s border policy, said in Spanish. Jacobson was speaking to would-be migrants directly, and her message was clear.

What Biden doesn’t seem to grasp, as Trump failed to before him, is that no amount of press conferences or restrictive immigration policies will stop people from coming to the United States. Migrants are aware of the dangers of making the long, arduous trek to America. They’re aware of their slim odds of being granted asylum. But if what they’re fleeing — whether it be gang violence, climate change, poverty, or something else — is worse than what they face in the U.S., then they’ll try to come.

Biden said he’d undo Trump’s most harmful immigration policies, and in some ways, he has. He ended the Remain in Mexico policy, which required some asylum-seekers from Spanish-speaking countries to wait in Mexico while their immigration cases were processed in the United States. He rescinded the travel bans from African and Muslim-majority countries. He fully reinstated and committed to keeping the DACA (Deferred Action for Childhood Arrivals) program, which lets certain undocumented youth continue to live and work in the U.S. He sent a comprehensive immigration bill that would provide a path to citizenship for millions of undocumented immigrants to Congress. He attempted to put a moratorium on deportations. But the Title 42 order remains, and it doesn’t seem like it’ll be lifted soon.

Jacobson encouraged those who are interested in seeking asylum in the United States to wait for a more opportune time and added that the Biden administration is working on creating avenues to legal migration that could help them — for example, the recently-reinstated Central American Minors Program (CAM). Under CAM, children from El Salvador, Guatemala, and Honduras whose parents or guardians legally live in the U.S. can apply to migrate from their home countries. The goal is to prevent parents from sending their kids over unauthorized and unaccompanied, which would render them undocumented. Biden’s proposed immigration legislation would also expand access to asylum for migrants from Central America.

There are, of course, a few problems with this approach. There are plenty of children in El Salvador, Guatemala, and Honduras whose parents already live in the U.S. but lack legal status; the revived CAM would do little to help them. And Biden’s immigration bill faces slim odds in the Senate, where Republicans have already pledged to oppose it. Even if it were to pass in its current form, the bill is just as dedicated to limiting immigration as it is to fortifying asylum. There are entire sections dedicated to addressing “push factors” that drive migrants from Central America, and it even includes funding for an “information campaign” to warn prospective migrants about the “dangers of irregular migration.”

Earlier in the press conference, Jacobson accidentally said, “la frontera no está cerrada,” which translates to “the border isn’t closed.” This slip-up sums up Biden’s stance on immigration: a softer message than Trump’s, a few substantive yet limited policy changes, but otherwise much of the same.

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