Border crisis discourse continues to dominate—03-26-21

Immigration news, in context

This is the seventy-third edition of BORDER/LINES, a weekly newsletter by Felipe De La Hoz and Gaby Del Valle designed to get you up to speed on the big developments in immigration policy. Reach out with feedback, suggestions, tips, and ideas at BorderLines.News@protonmail.ch.

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This week’s edition:

  • In The Big Picture, we look at the continued border “crisis” rhetoric and its impact.

  • In Under the Radar, we discuss a recent Biden legal move on TPS. 

  • In Next Destination, we examine the potential that the U.S. is tying border enforcement to the possibility of vaccine distribution to Mexico.

The Big Picture

The news: The southern border has continued to loom large over the Biden presidency, dominating most of the immigration conversation and boxing out dialogue on internal enforcement and legislative proposals on paths to regularization of status.

What’s happening?

The notion of painting yourself into a corner is an evocative one; it’s easy to imagine yourself absent-mindedly finishing up a coat of varnish on some floor and realizing you’re surrounded, with nowhere to step without getting paint on your shoes. That feeling must be pervasive now in the White House, as the Biden administration finds itself consumed with border crisis discourse. As we explored a couple of weeks ago, the president decided to keep in place the Title 42 order that (the government believes) permits the quick and relatively automatic expulsions of would-be asylum seekers.

The position has triggered steady backlash from pro-immigrant and progressive groups, but predictably won him zero points among right-wing critics who—despite Biden having kept in place what amounts to a discretionary and near-total bar to asylum, the longtime dream of Stephen Miller—continue to claim that Biden is both abandoning enforcement and has single-handedly created a humanitarian crisis among migrants, which is something they suddenly seem to care about. The first part is obviously false, while the second is just incomplete; Biden certainly has caused suffering to asylum seekers by keeping Title 42 in place and failing to adequately prepare for the predictable consequence of a growth in the number of minors attempting entry alone, leading to prolonged stays in Border Patrol cells.

Yet this situation didn’t suddenly emerge when he took office: it was Donald Trump, as supported by many of these same right wingers, who introduced Title 42 and a raft of other policies, including the Migrant Protection Protocols, that kept thousands of people at the border waiting for a chance to seek protections. This makes it all the more surreal to watch now as Trump—Trump!—goes on Fox News to accuse Biden of having an “inhumane” policy at the border.

Today, a group of Senate Republicans are planning to travel to the border to keep press attention focused on the supposed crisis and blame Biden for it. They held a press conference earlier in the week to spout laughably transparent lies like the idea that it’s more difficult for U.S. citizens to cross the border than it is for migrants (in actuality, citizens have never faced any Covid-19 restrictions on entry, and hundreds of thousands of them have crossed the border daily without the requirement of so much as a screening). Sen. John Thune of South Dakota expressed concern for “migrant families and unaccompanied children who are stranded at the border at overcrowded facilities,” but apparently the legislators will examine these humanitarian issues by riding down the Rio Grande river on gunboats with mounted machine guns.

The bad-faith attacks were obviously always going to happen, but the administration has hamstrung its ability to respond by throwing its weight behind Title 42, a policy that is already crumbling as Mexico increasingly refuses to take expelled families and which the ACLU appears ready to resume a lawsuit against. It already burned through the goodwill of advocates, but now any voluntary easing or termination of the policy—which will undoubtedly trigger the entry of large numbers of adults and families who’ve been waiting or been already expelled—will further inflame critics, who will say that the administration is responding to the “crisis” by exacerbating instead of, presumably, somehow ending asylum altogether.

The noise and the narrative aren’t just ending up with torrents of misinformation being spread by talking heads and TV news, warping the public’s worldview, but threatening to torpedo legislative discussions in Congress. We’ve covered both the wide-ranging U.S. Citizenship Act that was drafted as an encapsulation of Biden’s aspirations on immigration reform, as well as the latest version of the Dream and Promise Act, which passed in the House last week. Neither bill had a particularly smooth road to passage in the Senate anyway, but the story of a crisis at the border provides an easy out for moderate Republicans and even some Democrats to throw up their hands and give up on the immigration legislative conversation altogether.

Sen. Lindsey Graham, who has swung back-and-forth between fringe right-wing positions and a willingness to negotiate and pass pathways to citizenship, said recently that he is “not in support of legalizing one person until you’re in control of the border.” Instead, he is introducing his own bill in an effort to essentially terminate the asylum system. This bill has no chance of becoming law, but is illustrative of the fact that the perception of a border surge is a straightforward way for opponents to tank any hope of advancing the conversation on immigration reform and potential measures to improve asylum.

How we got here

We’ve covered Title 42 in the past (including just two weeks ago, when the “crisis” rhetoric began intensifying) but here’s a quick recap. 

In March 2020, when anxieties about the coronavirus pandemic were escalating, President Donald Trump’s administration used an obscure provision of the public health code to shut down the border to unauthorized migrants. That provision, Title 42—which is now being discussed by pundits who we can assure you had never heard of it a couple months ago—lets the government prevent the entry of specific people or groups of people if there is concern about the introduction or spread of a communicable disease in the U.S. By the time the administration invoked Title 42, coronavirus was surging in the U.S.—in fact, top experts at the CDC tried to push back against the policy, telling Trump it had no public health justification. Since then, almost all migrants encountered at the border have been “expelled” either to Mexico or to their countries of origin. Title 42 has effectively shut down asylum for more than a year now, and has done nothing to slow the spread of Covid.

We’ve noticed a lot of misconceptions about what “closing” the border means. Before Title 42, the border was by no means open: it was heavily militarized and continues to be. Even authorized travelers, such as cross-border commuters, often have to wait hours in line to be processed. Unauthorized migrants—those without visas allowing them to enter the U.S.—aren’t granted free entry into the country. Under normal circumstances, those people are put in expedited removal proceedings, through which they can be quickly deported. Since many of those migrants seek asylum, these turn into standard deportation proceedings, where they can argue their case before an immigration judge in hearings can occur over months or even upwards of a year.

Under Title 42, none of that happens. Instead, migrants—including those who say they fear persecution in their country of origin—are turned away, or detained for a brief period of time before being sent back across the border or put on “expulsion” flights. Expulsions are legally different from deportations in that there’s usually no real record of the person expelled, and migrants who are expelled aren’t granted any degree of due process. 

All of which brings us to where we are now. Title 42 is still in place, and the Biden administration has made it clear that it’s not going to lift the policy in its entirety any time soon. At the same time, the Biden administration has voluntarily continued following a previous court-ordered policy of not expelling unaccompanied minors, and been letting in more families even as it has continued turning away single adults. Most families encountered at the border are now processed and admitted into the U.S. (it bears repeating that these families are admitted and immediately put in deportation or asylum proceedings). This doesn’t mean that Biden is embracing some kind of open-borders policy. The vast majority of single adults are still being turned away regardless of any asylum claims they may have, and Biden and his staffers have exhorted migrants to not come, emphasizing that they’ll likely be turned away.

Still, the talk of a “crisis” resulting from a “surge” in new arrivals has not only continued but intensified. Congressional Republicans—and some conservative Democrats, including Texas Rep. Henry Cuellar—are the ones stoking the flames. A potentially staged video of migrants being smuggled across the border recently circulated among right-wing media (and, eventually, CNN). A spokesperson for Cuellar later told Marcia Brown, a reporter at The American Prospect, that Border Patrol agents sent the congressman the video. 

Border Patrol’s role in the crisis narrative is important and has been under-discussed. On Friday morning, Maine Sen. Susan Collins said she spent three hours with Border Patrol during a night shift in McAllen, Texas. “Agents took us through a dangerous path to the Rio Grande where we could hear the Cartel members taunting us across the river,” she tweeted. “Human trafficking, child abuse, & drug smuggling are rampant. This is a crisis.”

Even if the smuggling video was staged, it’s undeniable that migrants pay thousands of dollars and often take out high-interest loans to get to the U.S. This doesn’t happen because they’re trying to “skip the line.” It’s because visas are difficult—if not flat-out impossible—for most people to obtain, and because the militarization of not only the U.S.-Mexico border but of Mexico’s southern border with Guatemala has created increased demand for smugglers. Over the last few decades, the U.S. has pushed its “border” further and further outward. In order to make it to a U.S. port of entry, migrants must pass through Mexico without being detected and turned away by Mexican immigration agents essentially working on behalf of the U.S. And in order to do that, they turn to smugglers who know what routes to take.

Put simply, the militarization of the border and the implementation of punitive policies meant to deter migration are to blame for the rise in smuggling. This didn’t begin with Biden, nor did it begin with Trump. For the last several decades, the U.S. policy on unauthorized migration has been “prevention through deterrence.” This began in 1994 under the Clinton administration and has continued to some degree since then. The goal was to make crossings more difficult near big cities, which would push migrants into more remote regions that were more difficult to cross, supposedly because the difficulty of the journey would deter people from coming. Instead, border crossings continued, and migrant deaths along the border increased. The emphasis on keeping the border “shut” is similarly encouraging migrants to take more dangerous routes and hire smugglers in order to prevent detection. 

What’s next?

Border Patrol will probably continue its campaign to influence public perception and public policy through the selective representation of the facts at the border, helped along by Republican legislators and credulous journalists. The Biden administration is at this point moving reactively, attempting to deal with the logistical, policy, and communications issues simultaneously and as they arise. For this reason, it’s unlikely to move to terminate Title 42 at the risk of being bashed as open borders and enabling the “surge.” However, the fact that there are thousands of people waiting to make legally protected asylum claims isn’t a reality that’s going to change just because the president fears a PR problem.

As we’ve pointed out before, there’s never been any indication that an administration’s immigration rhetoric has really factored into migrants’ decisions, for the simple reason that the circumstances they’re fleeing tend to be dangerous enough so as to render the ever-shifting U.S. legal landscape a relatively minor consideration. They just want to reach safety.

Perhaps the administration’s strategy will be to wait until it is forced to allow everyone, including all families and single adults, to make asylum claims, either through court action or changing policies in Mexico. That way, it can somewhat credibly claim that it’s not its “fault” that migrants are newly able to seek protections without being shut out. 

In the meantime, the Biden administration needs to figure out the logistics for effectively processing these people into the country once this happens. A number of people will screech about this being a crisis, but it must ignore that and ensure that it doesn’t actually trigger a humanitarian crisis by not having the infrastructure in place, as it did with its failure to find ways to safely accommodate the thousands of unaccompanied minors who have recently entered.

The notion that these migrants are bringing Covid-19 into the country, which has already emerged to an extent, is likely to intensify during this period, and while it is not really a critique made in good faith, Biden’s team can help head off foreseeable attacks by having a safe and orderly process for families and adults to be tested, processed, and quickly released as they await the outcome of their asylum processes.

Under the Radar

Justice Department argues against letting formerly undocumented TPS holders get residency

The Biden administration filed a brief with the Supreme Court arguing that people with Temporary Protected Status who entered the U.S. unlawfully shouldn’t be able to obtain legal permanent residency. 

The case involves a husband and wife from El Salvador who entered the U.S. without authorization in the late 1990s and received TPS in 2001 after El Salvador experienced three earthquakes. The couple applied for adjustment of status to permanent residency in 2014 and were being sponsored by an employer, but U.S. Citizenship and Immigration Services denied their application because they admitted to having entered the U.S. unlawfully and working without authorization while here.

The Biden administration’s position is that anyone who entered the U.S. without inspection shouldn’t be able to adjust their status from TPS to that of permanent resident. In other words, while Biden doesn’t want to get rid of TPS, this position would keep people with TPS in perpetual limbo.

Next Destination

Is the U.S. sending vaccines to Mexico in exchange for border enforcement?

The New York Times reports that the Biden administration plans on sending 2.5 million vaccine doses to Mexico Biden is also attempting to negotiate transnational immigration policies with the Mexican government, which has been forced to bear the brunt of many of the Trump administration’s policies, including metering, Title 42 expulsions, and the Remain in Mexico program. 

The Biden administration has denied that discussions over vaccine distribution and border enforcement are related, but says they have been “overlapping” and that there are “several diplomatic conversations—parallel conversations—many layers of conversations” happening between the U.S. and Mexico. 

Either way, it’s undeniable that the U.S. has for years relied on Mexico to help keep migrants from making it to the two countries’ shared border. Trump threatened to issue tariffs on Mexican products in 2019 unless the Mexican government took additional measures to prevent Central American migrants from reaching the U.S. Vaccines are more of a carrot than a stick, but the question is worth raising regardless.