Incoming Officials Reveal Biden's Plan for Undoing Trump Immigration Restrictions

'Guardrails' and the recipe for boiled frog

By Andrew R. Arthur on December 23, 2020

In a December 15 article captioned "Boiling the Frog Slowly on Immigration", my colleague Mark Krikorian explained that President-elect presumptive Joe Biden will undo the Trump administration's immigration policies, but "will ... try to hide the politically explosive consequences from public view" by rolling out those changes incrementally. On Tuesday, the former vice president, Susan Rice — Biden's choice to lead the Domestic Policy Council — and others gave hints as to the recipe that he will use to do so.

The reference in Krikorian's headline to the "boiling frog" is a common analogy for any action that is done slowly to hide true intentions and inevitable outcomes. It is based on the premise that a frog put in boiling water will jump out and save itself, but a frog put in room-temperature water that is slowly heated will not sense it is being cooked until it is too late.

Rice tweeted:

And, as the Washington Post reported on Tuesday, Biden has vowed to "keep his pledge to roll back the Trump administration's restrictive asylum policies", but will do so "at a slower pace than he initially promised, to avoid winding up with '2 million people on our border.'"

Biden's campaign website was fairly clear about the former vice president's intentions — when he was running for president. He promised that in his first 100 days in office, he would: "End Trump's detrimental asylum policies", as well as the Migrant Protection Protocols — MPP or "Remain in Mexico", under which asylum seekers from countries other than Mexico must await hearings on their asylum claims on the Mexican side of the border.

Now, however, Biden is seemingly backtracking on those vows. He claims that it will take six months to rev up his plans, asserting that it will take months to stand up the machinery by which asylum claims can be heard. He blames government bureaucracy and the appropriations process.

Specifically, the Post references Biden's statements to the effect that "creating a system to process thousands of asylum seekers will take months," as "the government needs funding to put staffers such as 'asylum judges'" — logically referring to asylum officers in U.S. Citizenship and Immigration Services (USCIS) — "in place".

As I have explained previously, government hiring takes time, and appropriations are usually a year-long process, while USCIS funding comes from those who are seeking benefits from the agency. Nonetheless, Biden expects to have all of this done in "six months".

The Post continues: "Biden said he was not dragging his feet but 'setting up the guardrails' to find a solution to the immigration issue, instead of creating a crisis 'that complicates what we're trying to do.'"

The "crisis" that Biden is referring to is a rush of illegal migrants at the border, which is "bad optics" in Washington parlance — that is, a scenario that reveals the deleterious effects of governmental action, and which provokes a backlash in the electorate.

Rice, for her part, suggests that Biden will not immediately end the use of Title 42 authority to expel aliens who have entered illegally or without proper documents back across the border to Mexico in response to the current pandemic.

She blames "processing capacity at the border". That said, both Rice — former national security advisor and ambassador to the UN under the Obama-Biden administration — and Biden — as Obama's vice president — had to have been aware of CBP resource and infrastructure limitations during the campaign.

It is those limitations that resulted in the segregated detention of aliens at Border Patrol stations and processing centers based on age and gender — the "kids in cages" trope that has been hung around President Trump's neck, but a situation that had predated his administration, as I explained last December.

Jake Sullivan, Biden's choice for national security adviser, has indicated that the new administration will not halt MPP right away. Claiming that "MPP has been a disaster from the start and has led to a humanitarian crisis in northern Mexico," Sullivan nonetheless admits "putting the new policy into practice will take time."

That is likely because, "disaster" or not, MPP was a needed stopgap to staunch a flood of migrants — and in particular unaccompanied alien children (UAC) and adult migrants travelling with children (family units or FMU). That flood of UACs and FMUs, in particular, led to a humanitarian and national security disaster at the Southwest border in FY 2019, as I explained last Thursday.

The Post reports that the Biden administration will, however, halt deportations in the interior (as then-candidate Biden vowed on the campaign trail) and craft amnesty legislation for 11 million aliens in the United States, as his website promised.

Whether the "optics" on those proposals are as bad as pictures of thousands of migrants rushing the border on a daily basis remains to be seen.

There are some seriously bad people who are in detention facing removal, but their stories are likely to be buried by what is — by all objective standards — a press that is largely sympathetic to the incoming administration. Nonetheless, their stories will inevitably leak out as they seek release from ICE custody through the judicial process — or as ICE agents themselves tell their stories.

And halting deportations will mean halting the arrest of those removable criminal aliens. Under the Immigration and Nationality Act, aliens generally can only be held for removal for 90 days. That is 10 days less than the 100 days during which Biden has promised to halt deportations.

Even then, Biden officials assert that it needs the moratorium to "'sort[] out' new policies for" ICE to follow in removing aliens. How will ICE officers know what, exactly, those new policies will be, in order to arrest the appropriate criminals in the interim?

Law enforcement officers sitting around twiddling their thumbs on the taxpayers' dime is likely to go down badly with those who are paying their salaries.

And, if amnesty were really as popular as many claim, why didn't the Obama administration pass one when it held the House and a veto-proof majority in the Senate, as I asked last January?

In any event, the Post states that Rice and Sullivan told a Spanish-language wire service that the incoming administration "would redouble efforts to stem emigration from Central America by creating jobs, battling corruption and improving security."

Respectfully, politicians in my erstwhile hometown of Baltimore have been attempting to achieve those laudable goals for the last half century — with poor outcomes and diminishing returns. If such proposals have failed 34 miles from the Capitol in the last 50 years, what makes anyone think they will be more successful in countries thousands of miles away in six months?

Plainly, the Biden administration wants to avert another flood of migrants at the border, at least initially. If it occurs, the images of detained migrants and stories about strained government resources to deal with them will belie claims about the harsh nature and corrupt animus behind Trump's immigration initiatives, and in so doing, could derail the president-elect presumptive's immigration proposals.

As boxer Mike Tyson famously stated: "Everybody has a plan until they get punched in the mouth." Whether the Biden team's immigration proposals suffer that metaphorical "punch in the mouth" depends on what happens at the Southwest border.

Foreign nationals considering illegal migration — and the smugglers who are encouraging them — are more likely to believe the campaign rhetoric than the current statements of would-be officials. And they are likely to be bolstered in this belief by any proposed amnesty, which would reveal that U.S. immigration laws do not mean what they say. Certainly, when locals see that their neighbors are not being returned home, it would only buttress that conclusion.

The pot at the border may heat up more quickly than the Biden administration would like, "guardrails" or none.