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30 September 2021

Why does Joe Biden’s immigration policy look so much like Donald Trump’s?

If little has changed, it’s in part because the problem is not simply who is running the immigration system. It is the system itself.

By Emily Tamkin

On 27 September, Joe Biden’s Department of Homeland Security (DHS) secretary, Alejandro Mayorkas, was grilled at a Migration Policy Institute conference. He defended the President, claiming that Title 42, which effectively allows the United States to expel asylum seekers because of the pandemic, should not be viewed as the administration’s position on immigration policy and humanitarian relief.  

It was an echo of his statement from the previous day, when he told NBC’s Meet the Press: “The pandemic is not behind us. Title 42 is a public health policy, not an immigration policy.” 

Title 42 is part of the 1944 Public Health Service Act, and allows the US to stop individuals from entering the country during certain public health emergencies. However, when it was first implemented by Donald Trump’s administration in March 2020, it was reported that a White House adviser, Stephen Miller – architect of some of Trump’s most draconian immigration policies – had been looking at using disease as a pretence for tightening border controls even before the pandemic began. It was also reported that the use of the policy during the Covid pandemic was driven by the White House despite objections from the Centers for Disease Control and Prevention.  

By continuing to use the Title 42 clause, Biden is not keeping a health policy in place; he is keeping an immigration policy in place. His administration is actively using Title 42 to expel Haitians, denying them their lawful right to seek asylum in the US, and is fighting in court to keep the policy in place. Some DHS officials say the policy is inhumane.  

Title 42 is not the only issue. Activists note that the number of detentions has risen since Biden came into office. Biden also hasn’t made significant cuts to the funding of Immigration and Customs Enforcement (ICE) or Customs and Border Protection, though his administration has narrowed the scope of the kind of people ICE agents can target, and where they can make arrests. ICE is, at present, only meant to focus on those who represent a “significant threat” to public safety as opposed to those with minor criminal records, for example. 

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Mayorkas has tried to shift the blame for this course of action on to Biden’s predecessor. While speaking at the Migration Policy Institute, he implied that the Trump administration was at fault for green card backlogs, noting that the agency in charge had limited funds.

That may be true. But there are broader issues: namely, that immigration has become a major campaign issue, and the system that has grown out of this.

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First, Republican have for years campaigned on the idea that a border crisis could threaten the security of the nation. Currently, Republicans insist Biden has left an “open border” that has resulted in a crisis. This is not based in fact – Title 42 is still in place – but has nevertheless led some Democrats to argue Biden has given Republicans ammunition. Previous reports have suggested that Biden doesn’t want to be seen as too soft on immigration. If anything, though, that he is accused of this even as he keeps a harsh Trump policy in place should make one thing clear: there is no policy Democrats can pursue that will convince Republicans they are tough on immigration.   

This brings us to immigration policy itself. For the past 20 years, the immigration system has been run out of the Department of Homeland Security. That means that, for the past 20 years, immigration has been addressed first and foremost as a national security issue. This colours the manner in which we speak and think about immigration, and it informs the way policy is enforced in the US. 

For much of the past two decades, local law enforcement has also been used to implement immigration law: traffic violations can turn into potential deportations. It doesn’t matter when or how a person arrived in the US. A new movie, Blue Bayou, explores how transnational adoptees, who grow up believing they are Americans, face deportation as adults because their parents did not apply for adjustment of their immigration status before they turned 18. The film is fictional, but informed by real life: a law passed in 2001 granted automatic citizenship to most transnational adoptees, but it only applied to those age 18 or younger. 

Mayorkas is not the same as the former adviser Stephen Miller. By his own admission, Miller considered curbing immigration to be a preoccupation. But, under the current system, there is only so much room for Mayorkas to reverse Miller’s policies. Biden put Mayorkas – an immigrant who fled to the US with his family and later served on the board of an organisation dedicated to helping refugees – in charge of the DHS. If little has changed under his direction, then the problem is not simply who is running the system. It is the system itself.

To put it another way, Biden’s immigration policy looks much like Trump’s because Biden’s immigration system is the same as Trump’s. And it’s still not working. For the sake of those trying to come to this country and the many who have already arrived, it is not enough to elect the right person to the White House, or even to repeal Title 42. The country needs to seriously question whether the DHS, established post-9/11, is doing more harm than good, and whether immigration should not once again be under the justice department’s purview. Beyond that, the way the country views immigration – and the way it views immigrants – needs to change.  

[See also: Why Afghan refugees in the US deserve more]