News Analysis: Why the border may ‘never go back to what it was before Trump’

U.S. immigration politics have shifted on their axis over the last 10 days.

Former President Trump and his administration spent years arguing that people who cross the border without permission should not be able to easily apply for asylum in the United States. That decades-old practice no longer works, Trump and his team insisted.

On Feb. 21, President Biden proposed a plan that amounts to an endorsement of his predecessor’s position.

International and U.S. laws have long allowed people who cross borders to seek protection from persecution at home. But Biden’s proposal would make it very difficult for migrants to win asylum here if they travel through a third country and cross the border into the U.S. without permission. The policy would roll back America’s longstanding commitments to people seeking asylum, placing strict limits on where and how those who flee persecution can apply for protection.

“We are moving toward a system where it is going to be much more difficult for anyone who crosses the border without authorization to get asylum,” said Yael Schacher, director for the Americas and Europe at Refugees International.

“We will never go back to what it was before Trump,” she said. “That’s what it feels like.”

Public outcry about the new policy has been muted, even among Democrats. Most of the public opposition to the plan has come from immigrant advocates who have consistently criticized Biden’s moves at the border. Some Republicans have backed the proposal.

But the significance of the shift is not lost on Biden administration officials, some of whom privately acknowledge the demise of the pre-Trump asylum system.

“Asylum at the border no longer exists as we previously thought of it,” said one Biden administration official who, like others, spoke anonymously to discuss the issue freely.

A second Biden official echoed the comment, explaining that “the state of asylum is badly damaged.” A third lamented that Title 42, a Trump-era measure that gutted asylum access in the name of public health, made any return to the pre-Trump status quo at the border appear to be “additive.”

“Once we weren’t accepting asylum seekers, then it was as though there had to be an affirmative decision to admit asylum seekers. Prior to that, it was a given that asylum seekers would be admitted,” the official said, citing international and U.S. law. “When the status quo changed, it shifted the foundation assumptions. Suddenly, it was a choice. Status quo was to keep them out, and the status quo is always easier.”

Under Biden’s proposal, migrants who cross the southern border without authorization would be presumed ineligible for asylum if they were not denied asylum in another country they traveled through on their way to the U.S.

Overcoming such a presumption is extremely difficult.

Homeland Security officials want migrants to schedule appointments with border officials at a port of entry or seek another legal pathway, rather than crossing the border first. If finalized, the new policy will be in place for two years.

The proposal essentially makes the place where migrants apply for asylum more important than the merits of their claims, said Stephanie Leutert, director of the Central America and Mexico Policy Initiative at University of Texas at Austin and a former Biden administration official who served in the State Department.

“To make that even clearer, you may have fled thousands of miles, but those last steps — at a paved port of entry, on desert dirt, or on the Rio Grande’s muddy bottom — are now what is determining your protection claim in the United States,” she said.

Government officials have defended the proposed rule by explaining that it is not a categorical ban. The officials also point to programs that allow migrants from Venezuela, Cuba, Nicaragua and Haiti to seek entry to the U.S. if they have a financial sponsor. Another process allows those who cross without authorization to challenge the presumption that they are ineligible for asylum in certain cases, such as medical emergencies.

Administration officials who spoke with the media last week said they would not allow disorder or chaos on the border, and that the policy was not their first preference.

The asylum system has been in crisis for years: Backlogs of claims have grown exponentially, and Congress has no clear solutions. Biden has repeatedly called on Congress to pass comprehensive immigration reform.

But some Biden administration officials privately acknowledge that the new strategy was driven by politics.

“Electoral politics trump values when it comes to access to asylum. The desire to keep the border quiet resulted in compromising what I previously thought were deeply held Democratic beliefs,” said the second Biden official. “The Democrats have lost the ability to, with a straight face, criticize Trump or the next Republican administration’s approach on immigration.”

The Biden administration had long been under fire from Republicans over high numbers of arrests at the southern border. In January, the administration launched an effort to bring down those numbers by using Title 42, the Trump-era public health measure, to turn back to Mexico any Venezuelans, Nicaraguans and Cubans — whose nationalities previously made it difficult to deport them to their home countries. At the same time, Biden officials created a program to allow migrants from those countries to seek entry to the U.S. with a financial sponsor.

After that January announcement, the numbers of unauthorized border crossings declined to their lowest levels in almost two years.

The administration celebrated this downturn in public statements, and referenced it last week in the over 100-page document that lays out the new border policy proposal. According to that document, officials were worried that the expiration of pandemic-era border measures in May could drive border apprehensions as high as 13,000 a day.

That number, the administration judged, would be a disaster that would strain resources, lead to overcrowding at border facilities, and pose safety concerns. To avoid it, they decided, the asylum process had to be restructured.

“Between Congress and an outdated immigration system and unabating high numbers, [plus] the specter of much higher numbers, we were sort of painted into a corner,” a fourth Biden official explained.

But the biggest problem, a fifth Biden official argued, was the focus by the news media and the government on the number of border crossings — which are up all over the world as migration surges everywhere — rather than on how the U.S. treats migrants.

“The fundamental problem is that the entire focus and the entire concept of controlling the border means reducing numbers. If you think that’s what it means, it is a losing battle,” the official said. “The public measurement [of success] is how to lower numbers, so policies get written to lower numbers. That’s what everyone is looking for.”

If the Biden proposal is finalized, the administration will likely face lawsuits from the American Civil Liberties Union and other nongovernmental groups that fought to block the Trump administration’s immigration policies. The public also has 30 days to offer comments on the proposal before officials finalize it.

With the new policies on the horizon, some asylum officers are beginning to openly consider leaving their jobs, said Michael Knowles, spokesperson for the American Federation of Government Employees Council 119, the union that represents them.

“The anxiety meters are soaring,” said Knowles, a 30-year veteran of the asylum officer corps, who says some are wondering: “Am I going to have to make a choice between my calling, my livelihood to be a refugee protector, or leaving as a matter of conscience?”

He said that the last time he witnessed so many asylum officers consider leaving the job was years ago, during the Trump administration.