Who exactly does Joe Biden think he is, Donald Trump? The question probably sounds ludicrous on its face. Trump is a known bully. But folksy Uncle Joe – with his big, toothpaste smile – is supposed to care about the little guy and do the right thing. On immigration, for example, candidate Joe took a stand in 2019 in direct opposition to his opponent, whom he accused of waging “an unrelenting assault on our values and our history as a nation of immigrants”. That same year, Biden also said that if people are coming to the country “because they’re actually seeking asylum, they should have a chance to make their case”.
So why is Biden now laying down yet another set of rules to the asylum system on the nation’s southern border that looks ominously like Trump’s?
Expanding on rules announced in January that controlled how people from Cuba, Haiti, Nicaragua and Venezuela could apply for entry to the United States, the Biden administration is now proposing a new set of policies that would make all people ineligible to claim asylum at the nation’s southern border unless they follow a strict set of guidelines.
For one thing, those seeking asylum must now use a smartphone app called CBP One to schedule an appointment to enter the US at an official border crossing. And asylum seekers must prove that they have sought asylum in another country before arriving at the US border. This is often called a “transit ban” and the same strategy was adopted by Trump. It led to widespread human rights abuses in countries such as Guatemala and El Salvador and was ultimately struck down by the courts on procedural grounds.
Here’s the thing, US law clearly states that “an alien physically present in the United States or at a land border or port of entry, irrespective of such alien’s status, [can] apply for asylum”. In other words, you can apply for asylum even after crossing into the United States without authorization. You don’t have to cross only at a designated port of entry. You don’t have to prove that you’ve applied elsewhere first. And you don’t have to make a reservation to save your life like you’re making a reservation for dinner.
Speaking of the smartphone app, CBP One – which has been in operation since mid-January – is also riddled with problems, according to immigration advocates. Several reports indicate that the app’s facial recognition software has a hard time registering people with darker skin. (The administration rejects the claim, saying that 40% of people using the app last week for a public health exemption were Haitians.) In one case, the app rejected identical twins, believing they are the same person.
Needless to say, not everyone has a smartphone with internet access. And even if you do, reservations are scarce, especially for families. “The biggest headache is that there are too few spots, so people are trying every morning to enter the app,” an immigration attorney told the Washington Post. “It’s like trying to get tickets for a Taylor Swift concert, only it’s not a concert, and you’re trying to save your family’s life.”
Senator Ed Markey has called on Homeland Security to cease using the app. “This expanded use of the CBP One app raises troubling issues of inequitable access to – and impermissible limits on – asylum, and has been plagued by significant technical problems and privacy concerns,” he wrote.
And Biden is facing more opposition from within his own party on the “transit ban” portion of this proposal. Senators Bob Menendez, Cory Booker, Ben Ray Luján and Alex Padilla issued a joint statement decrying the transit ban. “We are deeply disappointed that the administration has chosen to move forward with publishing this proposed rule, which only perpetuates the harmful myth that asylum seekers are a threat to this nation,” they wrote. “In reality, they are pursuing a legal pathway in the United States.”
So why is the Biden administration rolling out these policies if they’re so unpopular with members of Biden’s own party? The administration argues these changes are necessary to manage the unprecedented numbers of people who are arriving daily at the southern border. The number of encounters officials have had with people crossing at the southern border was well over two million last year, a steep increase from years past, due in large part to the climate emergency and political instability.
The numbers were already rising when Trump was in office, and Trump, being Trump, amped up the racism with all his talk of “migrant caravans” and pleas for Norwegian immigrants. He slashed refugee admissions and pushed asylum seekers to remain in Mexico. He unconscionably separated families and, when the pandemic hit, exploited a little-used public health law known as Title 42 to summarily expel most people arriving at the border. Every step was calculated to show his followers that he would keep the country as white as possible for as long as possible.
Yet, the sad truth is that, at various times during his administration, Biden has also relied on the “Remain in Mexico” policy, has locked up migrant children, and has kept the border closed by invoking Title 42. Now that the White House is on track to announce the end of the pandemic on 11 May, Title 42 can no longer reign and the administration is gearing up for increased attention at the border. Hence, their proposed new rules.
But here’s the heart of the problem. While the number of people seeking help is certainly an issue, the real problem is that Trump-era thinking still frames our debate on immigration. And this is true not just at the level of the imagination. The Trump administration enacted over 400 executive actions on immigration while in office and opportunistically used the racist fear of black and brown immigrants to shape American attitudes about immigration policy.
The Biden administration needs to stop recreating Trump-era policies on the border. Instead, Biden must demonstrate to the American people, loudly and forcefully, how the Republicans continue to block meaningful reform and how our ageing nation is in clear need of expanded immigration. In fact, as argued in Foreign Affairs, the Washington Post, the Economist and many other places, the health of our economy depends on it. (By the way, decades of economic research will also tell you that immigrants complement rather than depress the native labor force.)
As a singularly powerful nation, we have the unique opportunity to marshal the resources needed to address today’s border situation correctly. And if we do it right, we can honor our traditions of receiving the needy and strengthen our nation simultaneously. That’s the better option. The worse option caves in to our fears and lets a transit ban become the rule today. But then what will happen to our immigration policies tomorrow? And, more to the point, what exactly is it that we are so afraid of?
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Moustafa Bayoumi is the author of the award-winning books How Does It Feel To Be a Problem?: Being Young and Arab in America and This Muslim American Life: Dispatches from the War on Terror. He is Professor of English at Brooklyn College, City University of New York
