Trump vs. Biden: Border Control

Two very different agendas, likely with two different outcomes

By Andrew R. Arthur on October 14, 2020
  • Until Congress acts to plug the loopholes that encourage migrants to enter the United States illegally (including a weak "credible fear" standard; 2008 legislation that facilitates the entry of unaccompanied alien children (UAC) into the United States; and the Flores decision, which all but guarantees adults entering the United States illegally with a minor — family units or "FMU" — release within 20 days), executive action will be necessary to prevent a migrant surge on the same level (or higher) of what occurred in FY 2019 — with its attendant deleterious consequences.
  • The Trump administration has proposed a regulatory Flores fix that would remove incentives for UAC and FMU to enter this country illegally. Those regulations are currently enjoined, and Biden opposes and vows to end them. Neither Trump nor Biden has a legislative plan to plug the other loopholes.
  • In response to the FY 2019 surge, the Trump administration has undertaken a number of initiatives (including the Migrant Protection Protocols, the third-country transit bar to asylum, and third-country asylum agreements) to reduce the incentives for migrants — including and especially FMU and UAC — to enter this country illegally.
  • Former Vice President Biden has vowed to end those initiatives, and to institute policies that will instead further encourage foreign nationals to enter this country illegally by giving them expanded opportunities to file asylum claims — regardless of their validity.
  • Coupled with Biden's promise to remove only those aliens who have committed felonies in the United States, and limit the use of detention, the vast majority of aliens who enter illegally will be allowed to remain indefinitely — if not permanently. This will encourage other foreign nationals to enter the United States illegally.
  • Biden's response to illegal migration — convening a meeting of regional leaders (including from the major source countries of illegal immigration) to respond to the factors driving migration and to attempt to craft "a regional resettlement solution" — is unlikely to make much of a difference in either the short or long term.
  • Absent a continuation of the Trump initiatives (and full implementation of the Flores regulations), or practical and effective administrative actions from a Biden administration that would reduce illegal migration, there is likely to be a significant surge of aliens across the Southwest border — which will overwhelm CBP's limited resources, and strain the resources of the federal government as a whole.

In the run-up to the 2020 presidential election, I am comparing the positions of the two major candidates, President Donald Trump and former Vice President Joe Biden, on immigration, and in this post, on control of the flow of illegal migrants across the Southwest border. (My previous post was on border barriers specifically; this one is on the policies relevant to border control.)

Trump has a campaign website, but as it has the URL "promiseskept.com", it mostly discusses his accomplishments as president (including on immigration), and so I will primarily be examining the president's actions and initiatives to control illegal immigration, particularly over the past two years. He has given no indication that he plans to end those initiatives.

Biden's positions on immigration are contained in two different documents: his campaign website page on immigration ("The Biden Plan for Securing our Values as a Nation of Immigrants"), and a "Unity" document that was agreed to by the campaign and progressives in the Democratic Party (the "Biden-Sanders Unity Task Force Recommendations"). He has also made public statements on the issue, so I will base my assessments of the former vice-president's proposals on each.

Introduction

In a prior post, I examined how in response to the president's immigration enforcement actions, Biden has vowed to ensure that CBP personnel (including CBP officers at the ports and Border Patrol agents) "abide by professional standards and are held accountable for inhumane treatment."

To do this, he proposes a number of actions and initiatives.

First, he promises to appoint Senate-confirmed "professionals" to lead the agency (a change from Trump's current practices, at least with respect to confirmation). Those professionals, he asserts, will be answerable to him for any abuses that occur.

In addition, he wants to create an "Ombudsman for Immigration and Border Enforcement Related Concerns" that is independent of DHS. The ombudsman would respond to complaints about CBP, and also appoint "border community liaisons" for each of the 20 Border Patrol Sectors.

Biden also wants to establish a "Border Oversight Panel" of 30 members to propose changes to current border policies, some of which would inevitably limit enforcement.

In that earlier post, I explained how these and other open-ended proposals would have a "chilling effect" on legitimate border enforcement, and potentially impede and endanger Border Patrol agents in carrying out their duties.

More saliently for purposes of this post, however, DHS, under Trump, has implemented a number of administrative actions to stem the flow of immigrants entering the United States illegally, in response to a massive migrant surge in FY 2019. Biden, explicitly or implicitly, has promised to undo those actions, and institute changes that would encourage additional illegal immigration.

Absent substituted policies to discourage illegal immigration, Biden's elimination of Trump's initiatives would likely lead to a significant increase in the number of migrants entering the United States illegally, which in turn would again "overwhelm[] the entire government and bring our border security and immigration management systems to the point of collapse", as a bipartisan panel described the situation at the border during the FY 2019 surge.

Biden's proposed responses to stem illegal immigration, however, are unlikely to deter foreign nationals from entering the United States in violation of the law — certainly in the short term, and more likely than not in the long term, as well.

Background

Some facts are in order to frame the two positions. Trump promised during the 2016 campaign to beef up border security, and apparently by dint of rhetoric alone, those promises had some effect — for a while. In October 2016, just before the presidential election that year, 66,708 migrants were apprehended by CBP at and between the ports. By April 2017 (just over two months after Trump's inauguration), that number had dropped to 15,766.

As migrants (and more importantly smugglers) realized that the administration alone was not able to plug the loopholes that drew migrants to enter illegally (especially a weak "credible fear" standard, 2008 legislation that facilitated the entry of unaccompanied alien children (UAC)) into the United States, and a 2016 Ninth Circuit decision in Flores v. Lynch that all-but guaranteed adults entering the United States illegally with a minor — family units or "FMU" — release within 20 days, what the president had derided as "catch and release" resumed, and illegal entries surged.

Consequently, by May 2019, CBP apprehensions surged to 144,146, and there was a humanitarian and national-security disaster at the border.

Trump Administration Actions

In response, the administration implemented a number of actions to discourage illegal entry, which I described in detail in a February 2020 post.

The three best known are the third-country transit bar to asylum (which limits asylum claims from non-Mexican foreign nationals (OTMs) who have not applied for protection abroad), third-country asylum agreements (under which aliens are sent to regional partners to seek protection), and the Migrant Protection Protocols ("MPP" or "Remain in Mexico", which allows DHS to return OTMs who entered across the Southwest border to Mexico to await their removal proceedings).

The Trump administration also issued regulations that would replace the Flores settlement agreement, but those regulations have been permanently enjoined by a federal district court judge in California. That litigation is ongoing, but is unlikely to reach a quick resolution.

As my colleague Mark Krikorian recently noted, the administration also reached an agreement with the Mexican government to beef up its enforcement of its own southern border, which further limited the number of OTMs seeking illegal entry.

Due in large part to these initiatives, by January 2020, CBP apprehensions along the Southwest border had dropped to 36,581.

Shortly thereafter, the pandemic hit, and CDC suspended the introduction into the United States of aliens who had entered illegally or without documentation at the ports of entry under authorities in Title 42 of the U.S. Code — leading to their quick removal from the United States. CBP apprehensions consequently dropped to 17,086 by April, since rebounding to 46,564 in August.

Title 42 is a short-term measure, though, which will last only as long as the pandemic. That said, Trump has given no indication that he plans on ending MPP, the third-country transit bar, or any of his other border initiatives (unless forced to do so by the courts), so they would likely continue unabated in a second Trump administration.

Biden's Response to Trump Immigration Initiatives

Biden, for his part, explicitly states on his website that he wants to end MPP and revoke the Flores regulations. The Biden-Sanders Unity document also calls for the end of the Title 42 bar, the third-country transit bar, and third-country asylum agreements, as well as implementation the court-ordered Flores rules on release of UAC (and consequently, FMU) — negating the Flores regulations.

With respect to Flores, Biden has stated that he wants to speed the release of "children" who are subject to that court-ordered settlement agreement, which would necessarily require the release of the adults travelling with them in FMUs to prevent "family separation" (which Biden explicitly opposes).

In addition, Biden implicitly suggests that he would end the other initiatives that Trump has put in place to deter migrants, and in particular those claiming credible fear.

Instead, he vows to: "Surge asylum officers to efficiently review the cases of recent border crossers and keep cases with positive credible-fear findings with the Asylum Division."

In this vein, he asserts that under his administration: "Migrants who qualify for an asylum claim will be admitted to the country through an orderly process and connected with resources that will help them care for themselves." The effect of that proposal is more significant in proposed implementation than it sounds in the abstract.

Specifically, Biden proposes (by reference) to give asylum officers the authority to directly grant asylum to arriving aliens found to have credible fear, as proposed in September 2018 by the Migration Policy Institute (MPI). This is a radical change from current procedures, whereby aliens determined by asylum officers to have credible fear are referred to immigration judges (IJs) to make their asylum claims. Under the MPI proposal, if those aliens were denied asylum by asylum officers, they could then renew their claims before an IJ.

Consequences of Biden's Proposals

The ending of the Trump administration's current border initiatives, negation of the Flores regulations, and the implementation of MPI's proposals would likely provide a significant number of foreign nationals abroad considering illegal entry strong incentives to do so, particularly coupled with Biden's promise to "[e]nd prolonged detention" (and the Biden-Sanders "Unity" document's expressed disapproval of immigration detention in almost all cases).

Read as a whole, aliens apprehended after entering illegally would quickly be given credible fear interviews. Based on past history, most of them would be found to have credible fear, regardless of the strength of their asylum claims. Specifically, according to DOJ, 83 percent of aliens who claimed credible fear between FY 2008 and FY 2019 received positive credible-fear assessments, though few (about 14 percent of aliens claiming credible fear) were ultimately granted asylum.

Returning to MPI's proposal (coupled with the Biden plan and past practices in the Obama-Biden administration), those aliens found to have credible fear would then be released into the United States to apply for asylum with USCIS — a process that could take months if not longer.

If denied, those aliens would receive "a second bite at the apple" by applying for asylum from an IJ — a process that could take "several years". After that, if their claims are denied, those aliens would be eligible to appeal to the Board of Immigration Appeals (BIA), extending their illegal presence even longer.

In other words, the vast majority of aliens who are caught entering illegally could remain in the United States for up to a decade. Even then (given Biden's proposed restrictions on interior enforcement, including his promise to remove only aliens who committed unspecified "felonies" in this country), if those aliens were denied asylum after MPI's three-step process (before the asylum office, IJ, and BIA), they still would likely be able to avoid removal forever.

Even though Biden promises to double the number of IJs, that hiring takes time (and congressional funding). The immigration courts would likely be swamped with such claims for decades, which would incentivize untold numbers of foreign nationals to enter illegally.

Biden's Proposal to Reduce the Incentives for Illegal Migration

To limit the incentives for foreign nationals to migrate to the United States illegally, Biden asserts that he will "[c]onvene a regional meeting of leaders, including from El Salvador, Guatemala, Honduras, Mexico, and Canada, to address the factors driving migration and to propose a regional resettlement solution."

Such proposals are common in Washington, but rarely result in concrete solutions. There is no reason to believe that Biden's plan would be any different.

Poverty, crime, and insecurity are the main factors that drive foreign nationals — primarily from Guatemala, Honduras, and El Salvador (which made up the majority of illegal migrants — and particularly FMU and UAC — to the United States in FY 2019) to enter this country illegally.

Those are long-term, systemic issues in those countries, however, which successive administrations have attempted to respond to, unsuccessfully. Respectfully, there is no reason to believe that Biden will succeed where his predecessors have failed.

As for a "regional resettlement solution", that sounds similar to the third-country asylum agreements that the Trump has brokered, and that the "Unity" document (in particular) decries. That document specifically states that Democrats will end policies that force "asylum seekers ... to apply from 'safe third countries,' which are far from safe."

No specific mention is made in the "Unity" document of requiring migrants to apply for asylum in Mexico — with which the United States has no third-country asylum agreement, but which has beefed up its capacity to process asylum seekers in response to Trump's immigration policies — but I would question whether the drafters of that document would consider Mexico to be "safe" by their (unspecified) standards, either.

What Biden is proposing is a long-term solution, not one that will result in any reduction of illegal immigration in the short term, or even in the long short term. Given that the factors driving migration from Central America are entrenched, it is extremely doubtful that this initiative would result in any reduction in illegal immigration in the next four years, or even eight.

No mention is made in either the Biden immigration proposals or the "Unity" document of the diplomatic efforts that the Trump administration has utilized to encourage the Mexican government to enforce its southern border, limiting the number of OTMs seeking illegal entry into the United States. That said, NPR has reported that: "Federal border officials are worried what would happen if Biden cancels bilateral agreements with Mexico that have dramatically slowed the migrant flow."

Assessment

Until Congress acts to plug the loopholes that encourage migrants to enter the United States illegally, executive action will be necessary to avoid a migrant surge on the same level (or higher) of what occurred in FY 2019 — with its attendant deleterious consequences.

The Trump administration has undertaken a number of initiatives, including MPP, the third-country transit bar to asylum, and third-country asylum agreements, to reduce the incentives for migrants — including and especially FMU and UAC — to enter this country illegally.

It has also promulgated regulations to replace the Flores settlement agreement (which requires the release of migrant children, both UAC and in FMU, and therefore usually results in the quick release of the adults in those FMU as well). Those regulations are currently enjoined, with no quick judicial resolution in sight.

Former Vice President Biden has vowed to end those initiatives (including the Flores regulations), and to institute policies that will instead encourage foreign nationals to enter this country illegally. His response to illegal migration — convening a meeting of regional leaders (including from major source countries of illegal immigration) to respond to the factors driving migration and crafting "a regional resettlement solution" — is unlikely to make much of a difference in the short or long term.

Neither Trump nor Biden, however, has a legislative plan to plug those loopholes. Absent a continuation of the Trump initiatives (and implementation of the Flores regulations), or concrete executive solutions from a Biden administration to address illegal migration, there is likely to be a significant long-term surge of aliens across the Southwest border, which will overwhelm CBP's limited resources, and strain the resources of the federal government as a whole.