Reuters ran an article recently captioned “Biden's immigration goals fade after setbacks at the U.S.-Mexico border”. Somewhat inconsistently, however, that piece suggests that the Biden administration is also doubling down on its aims to create what it terms “a fair, humane and lawful immigration system”. What that article really reflects is a disconnect between the president’s expressed policies and facts on the ground.
Chaos at the Border. “Setbacks at the U.S. Mexico border” is one way to describe the situation there. Border Patrol apprehensions at the Southwest border reached an all-time yearly high in FY 2021 and then set new monthly records for the months of October and November (and apparently December as well, although official statistics have yet to be released).
Why is illegal migration surging to historic levels? On January 3, the editorial board at Bloomberg Opinion argued: “Biden’s rush to undo any immigration policies associated with his predecessor has contributed to upheaval at the border and encouraged more people to risk their lives trying to reach the U.S.”
I concur with that assessment, but would have used a slightly stronger verb than “contributed”.
Biden’s Role. Just less than a month before he was sworn in as the 46th president, Biden promised to reverse Trump’s border policies, but incrementally: “The timeline is to do it so that we, in fact, make it better not worse ... I will do what I said. It’s going to take — not Day 1 — it’s going to take probably the next six months to put that in place.”
Despite that vow, the new president’s timeline quickly shrunk. As my colleague Rob Law explained in March, Biden had reversed almost all of Trump’s successful border policies less than two months after inauguration day. More than any other factor, Biden’s rescission of those policies without any enforcement enhancements to take their place is the reason why the Southwest border is in the shape it is today.
The one quasi-border policy that Biden left partially in place were expulsion orders issued by the CDC under Title 42 in response to the Covid-19 pandemic. I say “quasi-border policy” because those Title 42 orders are premised in public health, not border security per se.
That said, the president likely had no choice except to retain Title 42, as the pandemic rages on after almost two years. In any event, those orders — which mandate the expulsion of all migrants who have entered illegally or sought admission — are increasingly only honored in the breach. Of the almost 165,800 aliens apprehended by Border Patrol in November, just 85,004 were expelled under Title 42.
That is just over 51 percent of the total number of migrants apprehended that month. In November 2020, by contrast, more than 88.5 percent of those apprehended by Border Patrol were expelled under Title 42.
Do Shakeups in White House Personnel Presage Changes? As I did on January 10, Reuters posits that the departure of two key White House immigration aides — Tyler Moran (a senior advisor on migration) and Esther Olavarria (deputy director for immigration of the Domestic Policy Council) — “suggests planned reforms could be put on hold or abandoned altogether as power tips to more security-minded White House officials”.
Mayorkas Doubles Down. If such a policy shift is in play, however, the Reuters article does not offer any proof. Instead, it quotes DHS Secretary Alejandro Mayorkas, who trumpets the administration’s immigration “accomplishments”:
In this first year, we have been dedicated to rebuilding an immigration system that was dismantled, virtually in its entirety, by the prior administration. ... We have had to rescind cruel policies, bring offices back to life, issue new policies, and rebuild entire operations.
Reasonable minds can disagree as to whether Trump’s immigration policies were “cruel”, but they were reasonably effective. And though Trump may have rolled back some Obama administration immigration “reforms”, he certainly did not dismantle the system.
Rather, he left what former Border Patrol Chief Rodney Scott termed “arguably the most effective border security in” U.S. history. As the numbers above reveal, that security is now gone — for now.
Mayorkas continued: “We are not targeting non-citizens who have been contributing members of our communities for years and years”.
It goes without saying that the Immigration and Nationality Act does not distinguish whether an alien has been a “contributing member of our community for years and years” when it comes to removability. Such facts may come into play, however, when deciding whether a removable alien is eligible for relief from removal as a matter of discretion. Mayorkas’ immigration guidance now forces ICE officers to make such assessments before even questioning removable aliens.
That said, the underlying implications — that ICE enforcement under Trump broke some sort of precedent and that the agency then focused on long-term non-criminal aliens — is a canard.
At their peak in FY 2018, ICE interior removals were less than 42 percent of what they had been under Obama in FY 2010. Similarly, at the Trump high-water mark in FY 2018, ICE interior arrests were between 44 percent and 50 percent lower (depending on which numbers you use) than they were in FY 2011, again, under Obama.
Further, of the 95,360 aliens removed by ICE from the interior of the United States in FY 2018 (as noted, the high-water mark of ICE enforcement under Trump), 76.1 percent of them had criminal convictions and 14.8 percent had pending criminal charges (a combined 90.9 percent).
By FY 2019, removals from the United States in the interior fell further, and of the 85,958 aliens ICE removed who were not initially apprehended at the border, 75.6 percent of them had criminal convictions, and 15.7 percent had pending criminal charges — a total of 91.3 percent.
Despite these facts, my colleague Jessica Vaughan explained in December that the number of removals conducted by ICE has dropped even further from prior years under the Biden administration. And it is not just aliens “who have been contributing members of our communities for years and years” who are getting a pass.
Vaughan detailed how removals of aliens convicted of serious crimes — sexual assault, kidnapping, homicide — have tumbled under Biden.
Nonetheless, Mayorkas promises more of the same, telling Reuters that he has plans “to issue a memorandum that would similarly reform immigration detention practices” although he “did not provide details or a timetable.”
What’s Next? It is possible — if not likely — that the immigration-policy staff changes are a harbinger of some more sensible policies. As explained above, however, Mayorkas’ statements don’t suggest that to be the case, but the secretary’s public statements often don’t match up with real-world facts.
Many administrations fail to hit the reset button until they hit rock bottom, though, and that generally occurs only after the president’s party suffers a setback (or “shellacking”, in President Obama’s terms) in the mid-term elections.
Still, as it relates to the upcoming midterms, Reuters explains: “Another chaotic year at the border could provide ammunition to Republicans, who are expected to focus on immigration, an issue that strongly animates their supporters according to Reuters/Ipsos polling, in the run-up to November congressional elections.”
Even absent the disaster at the border, however, the omens are not good for Democrats in the upcoming 2022 elections.
Senate Majority Leader Chuck Schumer (D-N.Y.) and House Speaker Nancy Pelosi (D-Calif.) hold razor-thin margins in their respective chambers, and any setback would give control to the GOP.
Biden may have already concluded that an immigration reset would not be enough to save Democratic congressional control, and therefore he wants to make the most of the power that he has.
Although Congress makes the rules when it comes to immigration, the executive branch has outsized powers when it comes to enforcing those laws. Biden has been facing challenges in the courts to many of his immigration policies, but as Mayorkas’ list of “accomplishments” reveals, it has not slowed the administration up much.
Nonetheless, immigrant advocates are still not satisfied. Heidi Altman, policy director at the National Immigrant Justice Center, told Reuters that departing White House officials should be replaced by new ones “who are committed to making good on [Biden’s] campaign promises that have been broken”.
It remains to be seen whether the president wants to prop up his party by bolstering immigration enforcement, or whether he wants to placate advocates by pushing forward with his “goals”. His decision will determine whether the border disaster keeps getting worse and whether criminal aliens remain free on the streets of America.