Today, Explained - Biden’s border orders

Episode Date: February 28, 2023

President Biden promised a more humane approach to immigration when he entered office. After two years and a flurry of activity on asylum policies, the Washington Post’s Nick Miroff explains whether Biden has delivered. This episode was produced by Hady Mawajdeh, edited by Jolie Myers, fact-checked by Laura Bullard, engineered by Patrick Boyd, and hosted by Sean Rameswaram. Transcript at vox.com/todayexplained Support Today, Explained by making a financial contribution to Vox! bit.ly/givepodcasts Learn more about your ad choices. Visit podcastchoices.com/adchoices

When Joe Biden was running for president, he said he wanted to be more humane than his predecessor when it came to immigration and policies at the U.S. border with Mexico. My father would say it's all about dignity, granting them the dignity and respect they deserve. He's had two years to deliver on that promise with Democrats in control of Congress. I want to be clear to folks in this region who are thinking about making that dangerous trek to the United States-Mexico border. Do not come. And an especially eventful two months with Republicans in control of the House. Do not, do not just show up at the border.

It seems like as good a time as any to assess how President Biden's doing on his pledge, and that is coming up on Today Explained. Get groceries delivered across the GTA from Real Canadian Superstore with PC Express. Shop online for super prices and super savings. Try it today and get up to $75 in PC Optimum Points. Visit Superstore.ca to get started. Today Explained, Sean Ramos from here with the Washington Post's Nick Miroff. He covers the Department of Homeland Security and Immigration. So he's the right kind of person to ask how decent a job Biden's been doing on the humane treatment of migrants front.

Nick said we got to start with the last guy. Build that wall. Build that wall. Build that wall. And so, you know, as many listeners will remember, immigration, the border, the border wall, these were red meat fundamental issues for the Trump administration. Immigrants with criminal records ordered deported from our country are tonight roaming free to threaten peaceful citizens. And so when Biden runs for office, he wants to cut a clear contrast right to the Trump administration. promises to restore, you know, the idea that immigration is central to America's identity, that people need to be treated, you know, more humanely, with a greater dignity. My father would say it's all about dignity, granting them the dignity and respect they deserve. And he wants to capitalize on a lot of the anger that had built up during those years, people disgusted by the family separation episode. They separated them at the border to make it a disincentive to come to begin with. Their kids were ripped from their arms and separated. And now they cannot find over

500 sets of those parents and those kids are alone, nowhere to go, nowhere to go. It's criminal. But many other things that I think they saw between the kind of some of the ugly rhetoric, the symbolism of a border wall, all of these things that were so key to Trump's presidency, Biden really wanted to repudiate that and move things in a completely different direction. And so, you know, the main thing that you hear Biden administration officials say now is he wanted to create an orderly, humane system at the border. So how does he put that into action the second he sits down in the

Oval Office? Because I remember the shooting off of just dozens of executive orders, it seemed like. That's right. And so on day one, I mean, there were more executive orders related to immigration on the border than anything else. Right. Halting, you know, construction on the border wall. A big one was ordering like a pause on interior enforcement from ICE on, you know, on deportations. Immigration and Customs Enforcement officers will reportedly be given new guidance that will lead to fewer arrests and deportations. The policy change would mean ICE agents no longer seek deportations for immigrants convicted of drunk driving and assault. It also weakens ICE's ability to arrest wanted immigrants at correctional

facilities. And so, you know, you just saw this flurry of activity. And I think that a case could be made that many of the challenges that the administration has faced since then were set into motion. And that just in that initial period, when there was a real need to again, repudiate the Trump administration by taking these moves. But the signal that it sent, I think, particularly throughout Latin America, was that there'd been a major change in policy and that the administration in the United States was going from a more closed approach to border enforcement to a more open one. And I mean, you saw Biden figures continuing to say the border is not open. Don't come to the border. I want to be clear to folks in this region who are thinking about making that dangerous trek to the United States-Mexico border. Do not come. But by then, I think there had been a change in perception.

And what people were hearing from their friends and their family members who were here is that there were a lot of jobs and that things weren't as restrictive now that Trump was gone and that this was a good time to come. And so that precipitated some very, very challenging and politically damaging scenes at the border for the president. The southern U.S. border is being tested in ways never before seen. In the last fiscal year, federal officials say there were more than 2.7 million undocumented border crossers, beating the previous record by more than a million. Does Biden see this coming, this transition to a more humane policy at the border leading to more people showing up at the border? Does he know that's going to happen? I think he does. And that's one of the incredible things about this is that right

before he took office and he was talking about his agenda and he said, the last thing we need is to say we're going to stop immediately the access to asylum the way it's being run now and end up with two million people on our border. And sure enough, they, U.S. Customs and Border Protection, has recorded basically two million arrests per year during the first two years of his presidency. So that did happen. This has inflamed an already explosive issue. Republican lawmakers started busing and flying migrants to Democrat-run cities, while Democrats are openly critical of the Biden administration, urging the president to demonstrate this is a priority for him.

Just show up. It doesn't take much to just show up at the border. What he wanted to avoid ended up happening. And I mean, people who have followed his career and particularly his sort of origins of his identity as a kind of, you know, law and order guy. I mean, they think that this kind of thing is very, you know, painful to him or difficult. He doesn't like the perception that something that he's responsible for is out of control and is in disorder, and that there's like a lot of law breaking going on. So I think there's a possibility, you know, that this bothers him and it probably took him beyond his comfort zone as a politician. So what does he do about it in his first two years in office?

So, you know, the one Trump era policy, enforcement policy that the administration held on to is the Title 42 pandemic emergency restrictions. Title 42 is simply a public health rule that allows Border Patrol to immediately expel migrants back to Mexico once they have crossed illegally. And they're allowed to do that on the basis of public health because we're in a pandemic. By the end of the Trump administration, the pandemic was in full swing. And Trump's immigration advisors, led by Stephen Stephen Miller realized that they had this tool, Title 42, which is, you know, in the U.S. public health code and basically allows U.S. authorities at the border to expel, to quickly turn back somebody who comes across the border either to their home country or to Mexico. And Mexico put limits on exactly who it was going to take back and when, and over time put more and more limits on that. But the basic principle was that you can't have all these people in custody along the border, you can't be holding them in detention. And so what we have to do is just send them back and

send them out as quickly as possible. As the country's pandemic restrictions fall off, this one particular restriction for immigrants stays in place at the border. Yeah. And the way they handled it and the way they managed their relationship to immigrant advocacy groups and the humanitarian groups that work with immigrants was to make more and more exceptions to Title 42 expulsions, right? So whereas Trump was really intensely enforcing Title 42 during those last months of the presidency. And he said that pretty much every

undocumented immigrant in the U.S. without legal status was subject to arrest and deportation. Biden, little by little, starts to expel fewer and fewer, lower and lower percentage of people who are coming across. Officials are letting in families who have children under the age of six and then releasing them into border towns like McAllen, Texas. The Biden administration is also no longer using the Trump era policy of expelling migrant children because of health concerns created by the pandemic. So little by little, Title 42 ceases to be as relevant or as rigorously enforced at the border so that after they get to say, you know, I think it was after about a year, Biden administration starts to prepare to end it.

Of course, we are planning for multiple contingencies and we have every expectation that when the CDC ultimately decides it's appropriate to lift Title 42, there will be an influx of people to the border. And so we are doing a lot of work to plan for that contingency. By then, they're already seeing record numbers of people coming across, and they're getting kicked in the teeth politically for it by the Republicans. They try to lift it, but then they're sued and they lose. And that's the last they ever hear from Republicans. Not quite.

The federal government was sued over the use of Title 42, and a federal judge in Washington, D.C. recently ordered the government to stop using the measure. Fifteen conservative states, including Texas, are now asking the judge to reverse his ruling. Once this authority goes out the window, and that appears to be imminent, the situation is going to get much, much worse. And it goes all the way to the Supreme Court. And so they had scheduled hearings for the next phase of that case for March, but they have canceled them. And that is because the White House has come out and said that they are going to end the public health emergency related to the pandemic on May 11th, therefore eliminating basically the underlying basis for the Title 42 border restrictions. And the Supreme Court has removed that hearing from its calendar

without saying why. And now the question is, does that mean that they have endorsed the White House's position on this? We know that the states plan to keep pressing and they want to keep Title 42 in place. How do you keep that in place? That is about COVID. That is about public health risk. Whether it's COVID or some other issue, when you have people coming across the globe without knowing at all what their health status is, that almost by definition is a public health risk. There's every reason to keep that in place. The cynical interpretation of why they're doing that at this point is that they believe that keeping Title 42 in place will prolong chaos at the border,

will prolong a state of affairs that we have seen with very high numbers of people coming across, attempting to enter, the administration really struggling to manage it, and being saddled with the perception that they can't manage and control the border. What a mess. It is a mess, but that's immigration in the United States.

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They'd heard about a country where life might let them win. They paid the fare to America and there they melted in. All right, today explained we are back with The Washington Post's immigration and homeland security reporter, Nick Miroff, who in the first half of the show walked us through the first two years of Biden immigration policy. We talked a lot about Title 42. But now I want to talk, Nick, about the last two months, the two months since Republicans have taken control of the House of Representatives, it feels like it's been very eventful. Yeah, there's been a lot going on. So I think what we've seen since the midterms is the administration attempting to pivot maybe more toward the center, more toward a more enforcement-minded approach to the border. In December of last year,

they had more than 250,000 encounters, you know, basically arrests along the southern border. That was the highest level we've ever seen. And that, you know, I think was for the administration, at least a tipping point. And immediately in the beginning of the year, we saw them try to roll out what's going to be their new border strategy. And that is going to be a combination of tighter enforcement with using executive authority to create what they would call legal pathways, more channels, more opportunities for migrants to enter the United States legally. What does that look like? So it's a two-pronged approach. The legal avenues are mostly created through what's called parole. What they're doing is they are going to allow up to 30,000 migrants

from Cuba, Haiti, Nicaragua, and Venezuela. It requires migrants from those countries have a sponsor in the U.S., undergo rigorous background checks, apply from outside the U.S., and not cross illegally. Do not, do not just show up at the border. And they will apply through a mobile app. And if approved, they can enter the United States like, you know, by air, they can land at

an airport, they'll get a fast track to a work authorization, the potential to adjust their status to a more permanent status once they're already here. Why those four countries? Well, those four countries were Well, those four countries were really driving this huge increase in the numbers at the border. You know, when we got to 250,000 monthly in December, that was when people were like sleeping on the streets of El Paso because there was no more space for them in shelters, when really the system had just, you know, was on the brink of collapse. One-year-old Brenda has no shoes. Her tiny feet bear on the cold pavement of an El Paso parking lot.

Are you going to sleep outside again? What are you going to do? Her parents, Anthony Blanco and Glenda Matos, say they wrapped this rosary around her ankle for protection when they left Venezuela four months ago. She says that she thought that her daughter was going to die overnight because it was so cold. They had just crossed the river. They were wet. And those four nationalities were driving it in large part because the United States basically can't deport or return migrants from Venezuela, Cuba, and Nicaragua because of our strained relations with those nations. They're basically not accepting deportees from the United States.

And so because we can't deport them, most of the, they have been released into the interior of the United States after their process at the border. And that invites more and more illegal crossings. And so that situation was really kind of spiraling. And so they come in and they say, we're going to create this program admitting up to 30,000 a month from these countries, but we've also worked out a deal with Mexico. Mexico is now going to start taking back up to 30,000 a month from these countries

if people cross illegally, if they don't follow the legal process that we are creating through this parole program, right? So it's classic carrot stick approach. What we see almost immediately is a massive change at the border, right? The number of people being taken into custody after crossing illegally from those four nations drops 97%. Wow. Yeah. So effective. Super effective, but with some caveats, namely whenever the government takes some kind of drastic enforcement measure at the border, we typically see everyone kind of stand back, pause, the smugglers sort of step back, try to assess how the landscape has changed, then they adjust, then they try to work around it. Yeah.

And I should also say, of course, they get sued, right? Uh-huh. Classic. course, they get sued, right? Ah, classic. Ken Paxton, the Texas Republican Attorney General, leads a group of 20 states led by Republican officials that are suing, trying to block the parole program, saying it's an abuse of executive authority. Why are these Republicans mad if it worked and it slowed immigration at the border? That is the administration's argument. The states are saying these people are not authorized to come to the country. You're creating a parallel visa system. This far exceeds the authorities that are given to the executive branch by Congress under the Immigration and Nationality Act.

I see. And so that is the legal matter at dispute there. Okay. Now, prong two. This is very important. It's the thing that we just saw rolled out last week, and that is the more rigorous enforcement element, which is a new proposal, a proposed rule, they call it, that will effectively punish any asylum seeker who enters the United States illegally or doesn't seek protection in another country they transit en route to the U.S. border. It really shows how this administration has become a little harder on immigration than what a lot of these groups expected from President Biden and what

he campaigned on when he said he wanted to go back to a safe, orderly and humane immigration policy. So the U.S. immigration law is very clear on this. It doesn't matter how you come to the United States, whether you cross illegally or come to enter legally, you have the right to seek protection from persecution back in your home country. And so what the administration is trying to do is to say that if somebody enters illegally, then we're going to give them a, what they call a rebuttable presumption of asylum and eligibility that is going to weigh heavily on their claim.

That means when they go to try to make their case for asylum, they are going to hit this, you know, they would call it a bar, but it would basically, they would have to overcome it by saying, you know, there were extraordinary circumstances that prevented me from applying through your legal channels. I was fleeing for my life or there's some medical exception or something like that. But basically, they would have to overcome that very high hurdle in order to qualify for asylum. candidate versus what he's done as president, or even the fact that at the time when the administration is fighting Title 42's use in court, they're also expanding it. We saw the announcement. The reason you're seeing so many immigration advocates and many Democrats up in arms is

that this would be a major change to the way asylum claims are processed at the border. Now, they are also going to be on shaky legal ground. And the ACLU has said that they're going to sue the Biden administration to prevent this policy from taking effect. Wow. So basically, from the right and from the left. That's right. The administration's taking heat. Exactly. They're going to be fighting on both fronts. And again, this is very shaky ground because, you know, U.S. immigration law is clear that asylum is supposed to be open to anyone no matter how they arrive. Thinking back to where we started in this conversation, Nick, where, you know, Biden wants to set a more humane tone than the previous administration. I'm just,

from everything you just said, it sounds like at least the previous administration only got heat from one side of this fight. But Biden's actually taken heat from both. Has he at least been more humane? Did he deliver at least that part of his pledge? I think that they have. And I think that any serious examination of what they have done over the past two years shows that they completely changed the way the government talks about migrants and immigrants. They have removed many of the policies put in place by the Trump administration that were designed to punish or deter migrants through

harsh treatment. If we think about interior enforcement in the United States by ICE, the number of people who are being arrested and deported by ICE is at like a multi-decade low. And you have an administration that is closing ICE detention centers and has very, very, very restrictive directions to ICE officers about who they can arrest and when. Another thing that has Republicans up in arms. And we've seen them, you know, halt construction on the border wall and President Trump's signature project and a number of other measures. I mean, for the things that readers will be familiar with, there are dozens of other little things that they have done to reverse restrictive measures that Trump had taken.

And just in the way this White House is clearly very anguished about the way they talk about new enforcement measures shows a sensitivity to this criticism. But again, this is the challenge for any democratic administration at the border and on immigration enforcement specifically, right? Which is that you have to walk this very narrow tightrope between this core part of your base for whom almost any restrictive enforcement measure is unacceptable and Republican Party that is very much united on this issue and loves to beat you over the head with it and is going to beat you over the head with it heading into next year's re-election campaign. Nick Miroff, Immigration, DHS, at The Washington Post.

Our show today was produced by Hadi Mawagdi. It was edited by Jolie Myers, fact-checked by Laura Bullard, and mixed by Patrick Boyd. It's Today Explained. Субтитры подогнал «Симон» you