During the 2020 campaign, President Biden sought to differentiate himself from his opponents on the issue of immigration, promising to “restore our moral ground” while criticizing former President Trump’s policies as cruel and inhumane.
The number of migrants crossing the border has fallen but remains at record highs, and with immigration a central issue in the 2024 presidential election, Biden has evolved his approach, embracing a hardline platform that incorporates elements of his predecessor’s.
President Biden’s latest executive order is one example, limiting asylum protections for people traveling between ports of entry if the average daily crossing rate exceeds 2,500.
While using border standards as the basis for processing asylum claims is new, the restrictions on protection are borrowed from policies first adopted by Trump. Asylum advocates argue that the restrictions are unlawful under Biden, just as they were eliminated under his predecessor, and they have vowed to sue.
Many immigrant rights groups cited Trump in condemning Biden’s latest policies.
“We’ve been in this situation before. The policy announced today is nearly identical to the Trump-era asylum ban — but it comes from an administration that has vowed to protect the right to seek asylum and support immigrant communities,” the National Center for Immigrant Justice said in a statement after the executive order was announced.
While some have criticized the executive order as one of Biden’s toughest immigration policies, it is one of several efforts aimed at curbing the number of border crossings, which have soared from pandemic-era lows seen under the Trump administration.
“President Biden came into office on a promise to restore the asylum system, and while his administration has taken some positive steps, including significantly expanding access to asylum at ports of entry, it’s clear that this administration no longer believes in the universal right to seek asylum that it asserted when it began its administration,” said Aaron Reichlin-Melnick, policy director at the American Immigration Council.
“It’s clear that the administration considers reducing contacts at the border to be more important than the abstract principle of preserving asylum, and I think a lot of people find that very disappointing.”
During his campaign, Biden said he would put forward policies that contrasted with Trump’s, and his early days in the White House reflected that pledge.
On his first day in office, Biden lifted the Muslim ban. Shortly thereafter, his administration rescinded the “Remain in Mexico” policy, which required asylum seekers to wait their applications on the other side of the border, and created a family reunification task force to reunite children separated from their parents under the Trump administration.
But he also hesitated to lift Title 42, which used the pandemic as a pretext to deny asylum claims. Biden ultimately expelled more people from the U.S. under the policy than Trump did, and he reversed it more than a year after taking office.
The Biden administration has The approach to immigration is a mix of carrots and sticks.
U.S. immigration enforcement guidelines prioritize deportation of those with serious criminal records over undocumented immigrants who are not deemed a threat. The administration also launched a program to allow temporary entry to immigrants from Cuba, Haiti, Venezuela and Nicaragua if they can secure a sponsor living in the U.S. The administration has also invested heavily in Latin America to stem the flow of immigrants.
But Biden administration officials are borrowing from another Trump administration policy in limiting asylum to people who pass through other countries without seeking protection, a policy known under Trump as the transit ban.
“These are different tentacles of a significant rightward shift, and frankly I don’t think it’s surprising because Biden himself is a politician from the 1980s and 1990s, when Democrats were pretty aggressively trying to attack Republicans from the right on a number of issues,” said César Cuauhtémoc García Hernández, an immigration law professor at Ohio State University.
“They have a different political sensibility on immigration than we do today. But it’s hard to move away from what you grew up in. I think the Joe Biden of 2020, who was very critical of the Trump administration, was a far greater departure than the Joe Biden we’ve seen over the last 12 months.”
Biden and White House officials have been adamant about distinguishing the president’s latest policies from Trump’s record and rhetoric on immigration.
“There are several differences between the steps we are taking now and the policies of the Trump administration, which has attacked nearly every aspect of our immigration system and done so in a shameful and inhumane manner,” the administration official told reporters, listing a range of the Trump administration’s immigration policies.
“This action does not ban people from entering the country because of their religion. It does not separate children from their mothers. And there are limited humanitarian exceptions to the asylum ban, such as for people facing acute medical emergencies or immediate, extreme threats to their life or safety. And the Trump Administration’s action did not include these exceptions.”
“President Trump is not someone I want to equate with President Biden,” said Lee Gerentz, an attorney for the American Civil Liberties Union, which has vowed to sue to block Biden’s order.
But while polls show voters want action at the border, that doesn’t mean they like the strict measures pushed by President Trump, he said.
“The fact that people say immigration is an important issue to them doesn’t mean they want to go to either extreme,” Gelendt said.
The order underscores the tricky nature of immigration policy for President Biden, who said on Tuesday that “American patience has now reached its limit” and that “inaction is not an option.”
The order and accompanying rules are also packed with complaints about Congress’ inaction.
Republicans were united in opposition to a bipartisan Senate bill that contained measures similar to those included in Biden’s executive order, but GOP support all but evaporated when Trump voiced his opposition to the measure.
A senior administration official told reporters that Trump was trying to thwart Biden’s legislative victories.
But polls also show that voters support Trump when it comes to who would do a better job of controlling the border.
A Marquette University survey of registered voters nationwide conducted last month found that 52% said Trump did a better job on immigration and border security, while 25% said Biden did a better job.
“Some interest groups and progressives on the left are outraged by Biden’s actions. Biden should capitalize on their opposition and emphasize that he is governing from the center,” said Jim Kessler, co-founder of the left-leaning think tank Third Way.
“Nothing will scare Trump more than Biden taking the lead on border security,” he added.
“The death of the border bill clears the way for President Biden to hold new hearings on the border. An executive order is the next step, but it will only be effective if President Biden makes the border a daily priority.”
But few on the left see it as moderate, and Rep. Joaquin Castro (D-Texas) warned that the policy will surely become the new default.
“Immigration and the border are perhaps the most troubling issues in American politics, and Republicans are using immigration as a political scarecrow to scare voters in an attempt to stoke fear. If this executive order goes into effect, it is likely that future presidents, particularly Republicans, will use and expand it to thwart immigration and asylum rights,” he said in a statement.
“The political pressure to maintain the ban will be too great.”
