Today, January 20, 2022, marks one year since Joe Biden was inaugurated as the 46th president. He entered office with an approval rating around 60 percent, which was lower than Barack Obama’s but noticeably higher than Donald Trump’s approval rating upon assuming the Oval Office. Biden has steadily lost the support of the American people since, with most recent polls showing him at 38-42 percent approval, and much of that disapproval is attributable to his administration’s immigration policies.
Immigration was Donald Trump’s signature issue in 2016 but the issue was largely ignored during the 2020 campaign despite its being the policy area with the greatest philosophical divide between then-President Trump and then-candidate Biden. The Center has been extensively analyzing Biden administration immigration policies since Day One, beginning with the new president’s rescission of the so-called "Muslim ban". President Biden swiftly issued a series of executive orders that undid Trump administration policies, ranging from canceling the building of a wall at the southern border (which Biden voted to authorize as a senator) to eliminating various programs that streamlined the asylum process by discouraging aliens from filing fraudulent, frivolous, and otherwise nonmeritorious claims as a precursor to being released into the interior of the country.
The first comprehensive look at a new administration’s policies for most media outlets and policy organizations occur at the 100-day mark, an unofficial benchmark for measuring accomplishments since Franklin D. Roosevelt’s first term. As the Center noted in its first 100 days report:
The policy changes between administrations have had immediate impact since Inauguration Day, resulting in a crisis at the southern border. In its haste to undo the policies of its predecessor, the Biden administration has created enormous pull factors that are encouraging illegal aliens — single adults, family units (FMUs), and unaccompanied alien children (UACs) — to surge across the border in record numbers. The situation continues to worsen as the new administration searches for answers to regain control of the southern border.
Bizarrely, Biden administration officials, most notably Department of Homeland Security (DHS) Secretary Alejandro Mayorkas, refused to call it a “crisis’, instead opting to wordsmith the matter as a “challenge”. Yet, even White House allies in the media started to push back on this narrative as the crisis at the southern border continued to worsen throughout the year. The Center also looked at Biden’s second 100 days (covering April 30 to August 7), writing at the time:
Remarkably, the crisis has worsened during Biden’s second 100 days in office. In fact, CBP encounters at the Southern Border have continued to climb each month of the Biden presidency.
That trend finally stopped in August, when there was a slight dip from the record number of aliens encountered in July. In total, U.S. Customs and Border Protection (CBP) encountered 1.7 million aliens at the southern border in fiscal year 2021, the highest number ever recorded.
The root causes for the historic border crisis are obvious to everyone save the senior leadership of the Biden administration. As the Center wrote in its “second 100 days” report:
In short order, President Biden stopped the construction of any physical barrier along the southwest border; suspended new enrollments in the Migrant Protection Protocols (MPP, or also known as “Remain in Mexico”); terminated Asylum Cooperative Agreements (ACAs) with Guatemala, Honduras, and El Salvador; and ended streamlined, expedited credible fear screenings known as “Prompt Asylum Case Review” (PACR) for non-Mexicans, and “Humanitarian Asylum Review Program” (HARP), for Mexicans. And, despite continued concern about stopping the spread of Covid-19, the Biden administration is not fully utilizing the Centers for Disease Control and Prevention’s emergency health authority under Title 42 of the United States Code to turn away all aliens at the border.
In August 2021, federal district court Judge Matthew Kacsmaryk enjoined the termination of MPP, finding that the memo failed to address DHS’s original October 2019 assessment of MPP. Complying with the courts, the Biden administration resumed MPP in November, a move required by law, that nonetheless angered migrant advocates. As a result of this limited application of Title 42 and reinstating MPP (required by the courts while the Biden administration appeals), advocates of unlimited immigration are characterizing Biden’s first year as furthering "Trump's worst immigration policies".
A more accurate assessment is offered up by the Migration Policy Institute, describing Biden’s first year as “a greater change in direction on immigration than is recognized”. While the Biden administration has published very few proposed regulations (more on that below), it has worked throughout the year with favorable judges to eliminate Trump-era regulations without adhering to the notice and comment requirements under the Administrative Procedure Act (APA). This new side-door strategy involves a special interest group favorable to the current administration bringing a lawsuit against a Trump regulation and Biden’s Department of Justice capitulating and refusing to defend it. Instead of going through the years-long process required under the APA to rescind (or revise) a regulation, this novel (read: illegal) approach has expedited the Biden administration’s ability to undo numerous regulations, including the first-ever definition of the public charge ground of inadmissibility and a merit-based H-1B reform.
The most substantive proposed regulation offered up by the Biden administration would significantly change the process by which protection claims raised by aliens subject to expedited removal are heard. Specifically, the proposed rule would allow U.S. Citizenship and Immigration Services (USCIS) asylum officers to hear claims for asylum, withholding of removal (statutory withholding), and withholding and deferral of removal under the Convention Against Torture. The proposed rule would also expand the definition of parole under section 212(d)(5) of the Immigration and Nationality Act (INA) to allow for the release of any alien subject to expedited removal simply due to lack of detention space. In an 83-page public comment, the Center provided a detailed analysis as to why nearly every proposal is ultra vires, meaning unlawful. In our conclusion, the Center wrote:
If finalized, the [proposed rule] will promote fraud and encourage increased numbers of foreign nationals to enter the United States illegally to live and work in this country, indefinitely.
The final rule is still being drafted but sources tell me that the Biden administration is close to completing it.
Less covered by the media has been the near-complete abandonment of interior enforcement. While President Biden’s 100-day deportation freeze was blocked in court, that was mostly a symbolic victory. New enforcement guidance largely mirrors what was espoused in that executive order, which my colleague Jon Feere described as “a truly disturbing development” that “prohibits even basic surveillance of a criminal alien suspect who happens to be in or near so-called ‘protected’ areas. These locations are mini sanctuaries for criminal aliens who are now ‘protected’ from federal law enforcement officers at U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP).” Feere, a former senior ICE official during the Trump administration, explained that the
scope is virtually limitless and undefined, and Mayorkas explains the goal is to limit immigration enforcement’s “impact on other people and broader societal interests”. While there may be instances where ICE and CBP’s missions are not an immediate priority — say, perhaps, at a triage center immediately following a natural disaster — this policy was written with the perspective that nearly all functions of society are more important than DHS’s immigration enforcement mission. This is the natural result of having a DHS secretary who is not a champion of the agencies he oversees.
In a helpful visual, Feere produced a map of part of the Northwest quadrant of Washington, D.C., showing that nearly all of it is off-limits for any level of enforcement under Biden administration policy.
With the Biden administration’s push for a legislative amnesty deal (thrice over), some are pushing for an expansive use of amnesty lite (read: work permits) for illegal aliens. DHS Secretary Mayorkas has already shown a proclivity for granting (or extending) Temporary Protected Status (TPS), which allows illegal aliens in the country to obtain work permits, Social Security numbers, and driver’s licenses because a catastrophic event occurred in the alien’s home country. The statutory requirements for TPS have largely been ignored by recent administrations (save Trump) and the Biden administration has awarded almost 500,000 work permits to illegal aliens from six countries through TPS designations, plus an unknown number to Hong Kong residents (or those who pose as one) through Deferred Enforced Departure, another amnesty-lite program similar to TPS. The latest push, led by 33 Senate Democrats, is for Mayorkas to grant TPS for a number of Central American countries due to Covid-19. In short, Covid-19 is not a legitimate ground for TPS for any country.
As the first quarter of President Biden’s term is in the books, my colleague Andrew Arthur ponders whether there will be a pivot in Biden's immigration policies this year as we approach the 2022 midterm elections. Historically, the president’s party loses congressional seats during the midterms but polling has consistently looked bleak for the president’s party, including the possibility of Republicans taking charge of both the House of Representatives and Senate. In recent weeks, several high-profile Biden administration officials with anti-borders reputations have departed but plenty others still remain, mainly at USCIS. It remains to be seen if the Biden administration will recalibrate its immigration policies to regain support from American voters or if the White House has decided that the midterm election outcome is inevitable and that it will “go for broke” by pushing as many policies as possible that favor (illegal) aliens over American workers.