By Lan Duong and Sabrina Pierre
From the early stages of his presidential campaign in 2016, former President Donald Trump made it clear that combating irregular migration would be a hallmark of his presidency. Once in office, he followed through on that promise.
Throughout his term, Trump implemented the Migrant Protection Protocols, authorized the expedited removal of thousands of migrants under Title 42, unlawfully detained migrants in overcrowded and unsanitary border facilities, rescinded the Deferred Action for Childhood Arrivals (DACA) program and lowered the U.S. annual refugee cap to unprecedented levels – all under the umbrella of what he called a “zero tolerance” immigration policy.
When President Joe Biden was elected in 2020, immigration remained one of the country’s most contentious issues. The COVID-19 pandemic exacerbated xenophobic sentiment, and climate change catastrophes displaced even more people from Central America. Framing himself as the polar opposite of Trump, Biden labeled Trump’s immigration policies harmful and pledged to reverse these policies in favor of a more “fair and humane immigration system.”
But now, more than one year after Biden’s inauguration, where does U.S. immigration policy really stand? To evaluate the state of the American immigration system, it is first important to compare Biden’s immigration policies to that of his predecessor.
Migrant Protection Protocols
In January 2019, the Trump administration enacted one of its most infamous anti-immigration policies, one that human rights groups are still fighting to this day: the Migration Protection Protocols (MPP). Under MPP, also known as the “Remain in Mexico” program, the United States can force asylum seekers to wait in Mexico until their immigration court dates, even if it takes years. Previous administrations typically allowed asylum seekers to stay with relatives or a sponsor in the United States while they waited.
MPP exempts migrants who may face greater threat of torture or persecution in Mexico due to their race, nationality, political opinion, or affiliation with a social group, but this determination is made at the discretion of individual Customs and Border Protection (CBP) agents. As a result, migrants with similar claims often see different outcomes. In some cases, agents only let in a few family members while sending the rest back to Mexico.
Regardless of identity or political affiliation, however, asylum seekers sent to Mexico are at great risk of experiencing violence. Many of the cities’ migrants are sent to have standing travel advisories issued by the U.S. Department of State. In a survey conducted in 2019, the U.S. Immigration Policy Center found that a quarter of respondents were threatened with physical violence; for half of those people, these threats became actual beatings and robberies.
Even if migrants endure their stay in Mexico and make it to the hearing, they are still extremely likely to lose their case, with less than 1% succeeding in their asylum claims. This low success rate is due in large part to inadequate access to legal representation, as only 4% of asylum seekers in MPP successfully find an attorney.
In March 2020, the onset of COVID-19 outbreaks led to the suspension of MPP hearings and left asylum seekers in Mexico in a state of uncertainty. Trump, however, continued to send more than 6,000 people to Mexico until the end of his presidency. Estimates project that by the time Trump left office, 70,000 asylum seekers had been affected by MPP.
Following Trump, the Biden administration attempted to terminate MPP as one of its first official acts. However, following this announcement, a district court in Texas ordered the administration to reinstate MPP.
With the reinstatement of MPP, Biden sought to differ from the previous version of MPP. The Biden model wants to lead by “making sure individuals are treated humanely,” one official claims. The administration plans to follow up on their claim by processing all asylum cases within 6 months. During the wait for those cases, instead of migrants being sent back to Mexico, migrants would stay in tent facilities set up by Trump in border-crossing towns in the U.
Unfortunately, this pledge is an oxymoron; humane treatment of migrants and reinstating MPP protocols cannot coexist. Since the program was reinstated, 86 migrants have been returned to Mexico, according to the International Organization for Migration. Despite Biden’s claims that the new MPP would be more humane, the return of migrants to Mexico tells another story.
Although the Biden administration originally wanted to remove MPP altogether, states like Texas and their policy-makers have not allowed this to happen.
The Trump administration has been able to keep policies like MPP in place through loyal state legislators. As long as courts prevent the removal of MPP altogether, the Biden administration will be unable to remove Trump’s policies without engaging in lengthy court battles..
With the implementation of Title 42 on March 20, 2020, the Trump administration successfully weaponized the COVID-19 pandemic to further its anti-immigrant agenda. Despite the lack of evidence about migrants having higher transmission rates of COVID-19, Trump framed immigration as a public health concern.
Title 42, a clause of the 1944 Public Health Services Law, permits the government to “prohibit, in whole or in part, the introduction” of people who might pose a danger to public health. Though Title 42 was intended to apply to all arrivals from a foreign country, including U.S. citizens, the Trump administration specifically used it to deny migrants their right to seek asylum.
Trump’s interpretation of Title 42 authorized CBP officers to immediately expel migrants in a process officially called “expedited removal.” Generally, officers turned away migrants without following the typical protocol for screening refugees and asylum seekers, and therefore sent many migrants back to countries where they faced life-threatening danger. Between March 2020 and September 2021, officers gave only 272 migrants the opportunity to apply for asylum.
There were 335,589 total border expulsions under Title 42 during Trump’s presidency, with the overwhelming majority of expulsions occurring at the southern border. In fact, Title 42 surpassed even the Migrant Protection Protocols as the leading justification for expelling migrants.
While MPP was a policy change the Biden administration sought to change after coming into office, Title 42 has been embraced with open arms. To this day, Title 42 has not been altered in the Biden administration as COVID-19 has continued to spread across the United States.
Using Title 42 as a public health emergency measure under Trump has continued under Biden. The White House continues to face criticism for its support for Title 42, especially because of unclear messaging used by the administration that implied immigration policies would improve.
Under the Biden administration’s enforcement of Title 42, thousands of migrants have now been prevented from the possibility of seeking asylum, a violation of both American and international law. Keeping Title 42 in place and the harm it causes does not go unnoticed; Harold Koh, now former Legal Adviser of the Department of State for the Biden administration, left his position in protest of the policy.
Despite this, the Biden administration continues to stand firmly behind Title 42. In a public statement, the Department of Homeland Security claimed that “Title 42 is a public health authority, not an immigration authority.” Yet, the true public health emergency is the fact that due to Title 42, migrants and their families are forced to stay at Customs and Border Protection facilities with no protective measures nor access to COVID-19 testing for days or weeks before being sent back to Mexico.
Title 42 is an immigration policy being masqueraded as a public health measure. Both the Trump and Biden administrations nurture Title 42 regardless of the immense harm it has done to migrants.
The deplorable conditions of U.S. Immigration and Customs Enforcement (ICE) detention centers is perhaps one of the most visceral examples of the human consequences of Donald Trump’s anti-immigrant policies. Although the practice of immigrant detention dates back to Reagan’s presidency, the scale of immigrant detention expanded tremendously under Trump. From 2017 to the end of 2020, over 40 new detention facilities opened.
Although the COVID-19 pandemic forced the Trump administration to reduce the populations of ICE detention centers to 75% or less, these facilities once held about 50,000 people. Several reports by the Department of Homeland Security (DHS) inspector general described cramped and unsanitary conditions in these detention centers, with one report finding 900 migrants held in a room with a maximum capacity of 125 people. Other visitors to the detention centers, such as journalists, lawyers and politicians, also found evidence of horrific human rights abuses: outbreaks of scabies and chickenpox, lack of access to soap and toothpaste, sexual assault of children, and invasive gynecological procedures performed on migrants without their informed consent.
In addition to the poor living conditions and physical abuse, many migrants also had to deal with the psychological trauma of being separated from their family members. Previous administrations typically detained families together, but under Trump, CBP officers forcibly separated more than 5,500 children from their parents. By detaining the parents, officers could classify the children as “unaccompanied minors” and place them in different facilities set aside for migrant youth.
The physical and mental strain that detainees endured took an extreme toll. During Trump’s presidency, fifty migrants died in detention, and at least twelve died by suicide. Fiscal Year 2020 alone saw the highest number of migrant deaths in ICE custody — 21 people — since 2005.
Even with the number of deaths and suicides from Trump’s presidency in detention centers, not to mention the media outcry at the sight of “kids in cages”, the Biden administration has stayed the course with detention centers. Biden claimed the population being held in detention centers would decrease, but this has not come to pass. If “migrants are suspected of terrorism or espionage, entered the country illegally after Nov. 1, 2020, or were convicted of an aggravated felony,” then they shall be held in detention centers according to the new measurements that Biden advised border agents to follow.
The number of migrants in detention centers has increased by 50% since Biden has taken office.
At the start of Biden’s presidency in January 2021, the number of migrants in detention centers went down to 15,000. That was the lowest number so far, as migrant numbers have only risen since then. In October 2021, the number of migrants in detention centers increased by 56% since January and reached 22,129. Clearly the criteria advised by Biden have not been translated into action to improve results.
Conditions at detention centers have also not improved under the Biden administration and facilities continue to lack COVID protection measurements, putting migrants at risk.
In September 2021, an ICE detention center in Torrance County, New Mexico failed its health inspection. This was due to its poor health conditions that contributed to a massive COVID-19 outbreak within the facility. It should be noted that no detention center would ever pass a regular health inspection, but instead, centers pass inspections based on detention center-specific standards. As one might expect, this standard is far lower than the typical level businesses are held to.
The abhorrent use of detention centers for migrants has not changed from the Trump Administration to the Biden Administration. They remain one of the most obvious and derided aspects of American immigration policy to this day
When Trump assumed office, DACA was one of his first targets. Created by former President Barack Obama, DACA granted deportation relief and work authorization to migrants without serious criminal records who came to the United States before the age of 16.
On Sept. 5, 2017, the Justice Department officially rescinded DACA and announced that although migrants whose DACA status expired before March 5, 2018, could still apply for a two-year renewal, the government would stop accepting new applications to the program. Jeff Sessions, the attorney general at the time, declared DACA unconstitutional and stated that DACA recipients took away jobs that rightfully belonged to American citizens.
After a series of legal challenges, the Supreme Court eventually reversed Trump’s order in June 2020. However, the Court only ruled that Trump’s specific order was unconstitutional – not that the act of rescinding DACA overall was unconstitutional. This loophole allowed Trump to make another attempt at rescinding DACA. Only a month after the Supreme Court’s decision, DHS announced that it would continue to reject new applications and only permit one-year renewals.
Through the end of Trump’s presidency, the threat to DACA never abated, and approximately 300,000 undocumented immigrants who built lives in the U.S and barely remembered their home countries had to live in fear of deportation.
Unlike the Trump administration, Biden has been in full support of DACA since his first day in office.
Biden was alongside Obama when DACA was first signed, and this is an immigration policy that Biden has kept his promise on. Under Biden, DACA has already seen changes, but at its core, DACA remains the same as it was during the Obama administration.
Biden’s rule change is mainly about making it “optional for DACA applicants to seek a work permit” but otherwise, no eligibility requirements would change if the rule would be enacted. However, according to the L.A. Times, some advocates have pushed back to the rule change, claiming that making work permits optional to DACA recipients does them a disservice.
Out of all the immigration policies, DACA has seen a better light under the Biden era. There will always be improvements that can be made to DACA that may never come under the Biden administration. Yet, compared to other immigration policies, DACA being reinstated and supported by this new administration is a big win for migrants.
Refugee admissions have been a staple of U.S. humanitarian foreign policy since the creation of the U.S. refugee resettlement program in 1980, but once Trump assumed office, he consistently slashed the annual refugee admissions cap to historic lows.
In 2017, Trump set the refugee limit at 50,000 people — a sharp decrease from the 85,000-person cap set by Obama the previous year. Trump capped admissions at 45,000 in 2018 – though his administration admitted barely half of that number, at 30,000 in 2019, and finally, at a mere 18,000 in 2020.
Though 18,000 already seems excessively low, admission was limited to certain refugees fleeing specific contexts. The administration reserved 4,000 spots for Iraqi allies, 1,500 spots for Central Americans, 5,000 spots for people escaping religious persecution, and 7,500 for those waiting to be reunified with family in the United States. There was little flexibility for migrants fleeing other circumstances, and that year, the United States ended up admitting only 11,814 refugees.
The low numbers set by the Trump administration did not leave much room for the Biden administration to make improvements. Trump set a low with 11,814 refugee admissions, yet in 2021, the record low was set in the era of the Biden administration with 11,445 refugees admitted into the United States.
While Biden is now the face of U.S. policy, many of his Democratic allies and others do not blame him for setting this low record. Many claim Biden should make bolder immigration policy moves, but refugee advocates confessed that this historically low admission number can be blamed on the measures set by Trump. It was a quick turnaround fromTrump to Biden, which therefore left little room to change refugee admission caps.
But the Biden administration is now in its second year and still moving at a slow pace on the issues.
For the current budget year, Biden has raised the refugee cap to be 125,000, yet to reach that goal, the administration needs to be more “aggressive and proactive” as Krish O’Mara Vignarajah, president of the Lutheran Immigration and Refugee Service, states.
Is Biden as different from Trump as he claims to be? Taking a look at immigration policies, the two are practically cut from the same cloth.
It is clear that Biden aims to raise the refugee admission cap from Trump’s record-low numbers, but does he care enough about this policy to take it head-on and move at a rapid pace to make it happen? Only time will tell.
Apart from DACA, the other 4 noteworthy policies highlighted did not differ enough from one administration to the next. MPP, while brought into policy by the Trump administration, continues in the Biden administration with its damaging effects. While Biden did attempt to terminate the policy, Trump loyalists in state offices ensured that MPP would stay in place and Biden seems to have given up on this policy.
Trump’s Title 42 used a public health emergency as an excuse for deportation that leaves migrants facing danger every step of their journey Despite this, Biden continues to use the same excuse as Trump in continuingTitle 42. It can be assumed that so long as COVID-19 poses a risk, Title 42 will be used as an excuse for administrations to come.
Detention centers populations soared while refugee admissions fell to all-time lows under the Trump presidency, and unthinkably, both became worse under the Biden administration. Inhumane detention centers put in place by Trump have persisted under Biden, who also failed to reverse the trend of refugee admissions, making 2021 a record low year in terms of the number of refugees entering the country.
No two administrations are ever completely the same, but for Biden — who painted himself as the “anti-Trump” on the campaign trail — many find it dissapointing to see that little has changed in American immigration policy. The belief that the Biden and Trump administrations are polar opposites should be reconsidered. They are alike in more ways than one.