Biden’s Border Actions: How Much of Trump’s Policies Have Actually Been Changed?

Trump’s Legacy

President Trump campaigned on the promise to construct a massive border wall, a project that has failed to meet expectations, with only 47 of the promised 800 miles built during his four years in office. Research on the effectiveness of border walls in deterring migrants has been largely inconclusive, yet as of October 2020, the Department of Homeland Security maintained that a physical barricade at the border works. According to the department, infrastructure added to the border wall during the Trump administration included internally hardened steel-bollard barriers, new and improved all-weather access roads, perimeter lighting, enforcement cameras, and other related technology to effectively control crime at the border and aid U.S. Border Patrol officers in its maintenance. Additionally, President Trump’s February 2019 declaration of a national emergency concerning the southern border cites “a humanitarian crisis that threatens core national security interests” and increasingly worsening unlawful migration. This declaration permitted the use of the armed forces at the border and the diversion of billions of dollars from other federal programs to construct the wall.

Biden’s Actions

On his first day in office, President Biden signed a proclamation terminating President Trump’s 2019 emergency declaration, arguing that the construction of a border wall was “not a serious policy solution” and a misuse of U.S. taxpayer dollars. In his action, President Biden paused both the construction and funding of the border wall as well as the repurposing of contracts with private contractors. However, as of March 2021, the president’s decision to freeze funds is currently under investigation, as the Government Accountability Office reviews whether or not President Biden violated congressional budget rules. Recent press reports of remarks by DHS Secretary Alejandro Mayorkas indicate that some unfinished portions of the wall may yet be constructed, but the administration’s recently-released discretionary budget proposes to rescind (send back to Congress) unused funding previously appropriated for the wall. The future of the border wall is therefore unclear.

Trump’s Legacy

The Migrant Protection Protocols (MPP), also referred to as the “Remain in Mexico” program was established in December 2018. While the MPP program was in effect, roughly 65,000 asylum seekers were sent back to Mexico to await their U.S. immigration court hearing. Migrants were provided a list of pro bono legal service providers specific to the court where their hearing would take place, but were required to independently arrange any outside counsel and transportation to their removal hearings. Although certain groups, such as unaccompanied minors and those with credible fear of persecution in Mexico, were technically exempted from the MPP process, the decision on which migrants would be returned to Mexico was at the discretion of the U.S. Customs and Border Protection or Border Patrol officer who apprehended them. This discretion led to different outcomes even for migrants who arrived together.

Biden’s Actions

The day after President Biden’s inauguration, DHS suspended new enrollments into the MPP program. In addition, a February 2021 executive order directed the DHS secretary to review and determine whether to terminate the MPP program. Roughly a week later, DHS announced that it would begin processing the approximately 25,000 active MPP cases, allowing the migrants to re-enter the United States to await their hearings. DHS is also requiring these individuals to register online with an international organization, be tested for COVID-19 in Mexico, and then arrive at a U.S. port of entry on a specific day to be readmitted to pursue their asylum claims.

Migrants accepted for return are being processed in small numbers: roughly 300 per day at each port of entry. They will not be held in detention facilities in the United States, but rather be allowed to travel to their destination and monitored through alternative technologies such as ankle bracelets.

Trump’s Legacy

In March 2020, the Trump administration implemented the so-called “Title 42 program” which sought to expel arriving migrants from the U.S.-Mexico border during the coronavirus pandemic. Citing the Public Health Service Act (Title 42 of the U.S. Code), which establishes the Department of Health and Human Services’ legal authority for responding to public health emergencies, the Centers for Disease Control and Prevention released an order suspending the entry of certain persons from countries where a quarantinable communicable disease exists. A report, updated by CDC Director Robert Redfield in October 2020, justified the order due to the increased danger of accepting new arrivals during a state of public health emergency. Because of the extreme nature of the pandemic, the order claimed that it is not subject to the Administrative Procedures Act and will remain in effect until COVID-19 is deemed to no longer be a serious danger to public health.

Biden’s Actions

As of March 2021, the Biden administration has kept the Title 42 program in place, allowing authorities to expel most migrants encountered at the border, except for unaccompanied children. Children are being allowed to enter and are processed by CBP and HHS’s office of refugee resettlement. Due to the ongoing threat of COVID-19, almost a year after Title 42’s introduction, the White House has made clear that it has no plans to revoke this order soon.

Trump’s Legacy

Two concurrent programs, the Prompt Asylum Claim Review (PACR), which applied to non-Mexican nationals, and the Humanitarian Asylum Review Process (HARP), which applied to Mexican nationals, placed individuals not subject to MPP into an expedited removal process. Under PACR and HARP, migrants were detained in CBP facilities, and according to advocates, could not adequately prepare for their credible fear interviews beyond a brief phone call. Critics also decried the conditions of the facilities in which migrants were held. Additionally, advocates point to the dramatic drop in successful asylum screening interviews (from 74% pre-PACR/HARP down to only 23%) as evidence that migrants were not receiving due process or a fair chance to present their asylum claims in these programs. As recently as November 2020, a federal judge upheld the programs, ruling for the government in a lawsuit filed by the ACLU.

Biden’s Actions

A DHS Office of Inspector General report of PACR/HARP released January 25, 2021 noted problems in implementation including: access to counsel, representation, and facility conditions. Under a February 2, 2021 executive order, DHS was to cease the administration of these programs and to rescinding any orders, rules, regulations guidelines or policies implementing those programs.

Trump’s Legacy

In 2019, the Trump administration signed three Asylum Cooperative Agreements with Guatemala, Honduras, and El Salvador, the so-called Northern Triangle countries, which accounted for 72% of arriving migrants in fiscal year 2019. According to DHS, these agreements sought to expand asylum capabilities and improve safety, security, and prosperity throughout the region through a collaborative relationship. In practice, the agreements allowed the United States to return asylum-seeking migrants back to these countries rather than processing their cases domestically. However, only the Guatemalan ACA was implemented, and transfers to that country have been on pause since March 2020 due to COVID-19. These agreements have been heavily criticized, with a Senate report noting that zero migrants have successfully received asylum in Guatemala.

Biden’s Actions

A press statement by Secretary of State Antony Blinken on February 6, 2021 announced the suspension and termination of all three agreements. According to Sec. Blinken, the Biden administration’s new priorities will be to address the root causes of migration, protect refugees, and maintain a collaborative relationship with regional partners. However, in April 2021, the Biden Administration announced new agreements with the countries to “put more troops on their borders” to tighten them up against migration.

Trump’s Legacy

In the final weeks of his presidency, the Trump administration rushed “midnight regulations” to implement several asylum-related policies. Of these, several have been enjoined by courts including a DHS-issued omnibus final rule significantly restricting asylum protections, as well as a third country asylum rule which established a mandatory bar to asylum eligibility for those travelling through a third country to the United States. Another December 16, 2020 rule published by the Executive Office of Immigration Review tightened procedures for asylum applications and has been finalized but was enjoined by the D.C. District Court in January. Lastly, a Trump-era final rule adding public health-related security restrictions to eligibility for asylum has been delayed until December 31, 2021. Although the courts have taken action to block some of these regulations, the Biden administration has not yet indicated how it intends to proceed with the litigation it inherited or if it will rescind the regulations.

Biden’s Actions

In his February 2 executive order on immigration, President Biden announced his plan to review additional agency regulations and policies enacted under the Trump administration. Of the actions enumerated in this order, only the Asylum Cooperative Agreements have been definitively terminated. The others, which include previous agency actions like “Termination of the Central American Minors Parole Program” and the “Order Suspending the Right to Introduce Certain Persons from Countries Where a Quarantinable Communicable Disease Exists” (Title 42) have been restarted or are currently up for review. The Biden administration plans to work with respective agency heads to determine the fate of these regulations.

The U.S. Citizenship Act of 2021, introduced by Sen. Robert Menendez (D-NJ) and Rep. Linda Sánchez (D-CA) is based on the Biden presidential campaign’s promise to introduce comprehensive immigration legislation early in its administration. While the centerpiece of the bill is a broad legalization program, it also tackles the border, seeking to overhaul the current legal immigration system by addressing the root causes of migration from Central America via foreign aid and investment. The bill would prioritize smart border controls by investing in new surveillance technologies to screen for and address drug smuggling, particularly at ports of entry. According to Title II of the legislation, a continued effort against crime would confront violence, extortion, money laundering and trafficking (Title II, Subtitle A, Sec. 2101).

Additionally, the Biden administration’s proposal claims to offer a more humanitarian approach towards border communities, oversee administrative conduct of border officials, and ensure adequate protocols for individuals and families in CBP custody. The bill specifically requires proper development and training of protocols regarding appropriate use of force and human rights (Title II, Subtitle A, Sec. 2103). Recent oversight of DHS, CBP, and Immigration and Customs Enforcement has resulted in numerous critical reports from NGOs, DHS’s own inspector general, and lawsuits over conditions in CBP facilities. The bill’s provisions are meant to realign border policies to focus less on punishment and deterrence and more on legal and orderly processing.