Biden’s Border Dilemma

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Immigration is a hot-button issue. Former President Donald Trump wanted to deal with it by erecting a wall and locking everyone out. Trump never quite succeeded in that effort.

But the combination of his rhetoric and stricter (and sometimes problematic) enforcement of border rules along with some COVID-related restrictions known as Title 42 – which allowed the U.S. to quickly turn back migrants at the Mexico border in the name of protecting public health — gave the impression that the problem was subsiding.

The issue of illegal immigration has been a challenge for President Joe Biden. He struggled with it during his presidential campaign and continued to struggle with it when he assumed office. No one expected Biden to continue constructing the Trump wall. And, of course, he didn’t.

But with his decision to end the Title 42 coronavirus restrictions on asylum, Biden needed to develop a plan to deal with the anticipated flood of asylum seekers who threaten to overwhelm border resources.

Under the new Biden team approach, migrants who enter the United States illegally or who fail to seek asylum in another country on their way to the U.S. are automatically ineligible for asylum here.

Reaction to the new rule was mixed, with particular concern raised with the practice of treating asylum seekers like any other unauthorized border crosser, who could then be deported and barred from reentering the U.S. for five years.

To the surprise of some critics – particularly those on the right — the new rule contributed to a nearly 42% drop in illegal border crossings in June, which was the first full month that the policy was in effect. And the Border Patrol reportedly made fewer arrests in June than in any month since Biden took office. So, it seemed that Biden had solved his border protection challenge.

But there was a problem. Federal law provides that anyone fleeing persecution may request asylum once they reach U.S. soil, no matter how they got there. The Biden team knew that a federal court had struck down similar restrictions on those seeking asylum under the Trump administration because the rule ignored a clear command from Congress to allow foreigners to apply for protection.

Biden’s team claimed that their rule was different from Trump’s because they included multiple legal pathways for asylum seekers to enter the country, including a smartphone app. But that was a distinction without a difference.

The challenge to the Biden migrant asylum rule was heard last week by the same federal judge who heard the challenge to the Trump migrant asylum rule. And his ruling was the same. The U.S. Court of Appeals for the Ninth Circuit and the Supreme Court refused to stay the Trump case ruling, and they will likely do that again.

That leaves the Biden administration with a serious border challenge. Migrants who enter the country by any means will now be free to apply for asylum and it will take years for their cases to be decided. And suddenly, border politics once again has become a campaign issue.

We have seen this movie before. ■

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