Biden Has Only Difficult Options For Dealing With Migration

The crowd of migrants gathering at the southern U.S. border has been swelling with the growing anticipation of the end of a Trump-era policy that allows the government to turn away asylum seekers.

The challenge for President Biden was underscored last week when dozens of migrants died in a fire at an immigration detention center across the border in Ciudad Juárez.

Mexican authorities say the migrants lit the fire in protest after being told they would be deported. But advocates and even former U.S. government officials say that's far from the full story.

They argue the deadly fire should never have happened and are placing at least some of the blame on the Biden administration and its expansion of the policy, known as Title 42.

Its use forces the migrants into dangerous, overcrowded conditions in Mexico, they say.

"Exploiting a human tragedy to illustrate the 'risks' of irregular migration ignores the fact that the Guatemalan victims of this fire had no viable legal pathways and the Venezuelan victims were detained as a result of the Biden Admin's expansion of Title 42," Andrea Flores, a former member of Biden's National Security Council who handled border policy wrote on Twitter.

The Trump-era policy gives border agents the power to turn away migrants without a legal process. It's set to end on May 11 when the administration allows the public health emergency for COVID-19 — the basis for Title 42 — expire.

Homeland Security Secretary Alejandro Mayorkas has been under fire from House Republicans because of the influx of migrants at the border. Mayorkas told CBS' 60 Minutes Sunday that the U.S. is "in discussions with Mexico with regard to how they will handle any increase in the number of individuals seeking to migrate north."

He added that there are "all sorts of contingencies" if Mexico doesn't accept migrants who are sent back.

"It is going to be complicated," Mayorkas acknowledged. "It is going to be expensive. This has been complicated, expensive, and challenging for decades."

In reality, the Biden administration has few options to deal with migrant families at the border when Title 42 lifts. It's likely to be one of Biden's biggest policy challenges of the year and a potential political vulnerability as he launches his campaign for reelection.

"The issue for me and for this administration, and frankly, for everybody who's talking about the border is this is a complex phenomenon that doesn't have simple solutions," said Theresa Cardinal Brown, a former senior adviser on immigration in both the George W. Bush and Obama administrations.

A comprehensive immigration overhaul has eluded Congress for decades. Former President George W. Bush, a Republican, pushed for one, but was met with opposition from immigration hard-liners in his own party.

President Obama, a Democrat, also made an effort to get one passed — and it nearly did. Sixty-eight senators voted for sweeping legislation in 2013, but it died in the Republican-controlled House.

Former President Trump's "build the wall" hard-line stance discouraged any sort of negotiations to make way for a path to citizenship for the million in the country, who crossed the border illegally.

All of it has led to this point.

The Biden administration had already been struggling to lower the number of crossings at the border. The number of undocumented immigrant crossings at the southwest border for fiscal year 2022 topped 2.76 million, breaking the previous annual record by more than 1 million, according to Customs and Border Protection data.

Government officials warned that border apprehensions could surge higher with the end of Title 42 — to as many as 13,000 a day.

Reviving a policy of detaining children with their parents

The administration has since launched a series of steps to try to address the flows, including restructuring asylum.

Compounding the challenges Biden faces, most of those steps already, or are expected to, face court challenges or other stiff opposition.

One idea the Biden administration is considering is detaining migrant families who cross into the U.S. without permission. Such a move would be a significant reversal from late 2021, when Biden stopped holding families in detention facilities.

Former Presidents George W. Bush, Obama and Trump also used family detention to control migration surges, but a decades-old court settlement blocked the detention of children in unlicensed facilities for more than 20 days.

Leon Fresco, a former deputy assistant attorney general under Obama who defended that administration's use of family detention in court, said family detention won't work if the Biden administration tries to employ the practice the way the Obama administration did.

"The only way to survive a court challenge is if they can get the cooperation of the state of Texas to issue licenses," Fresco said.

The two facilities set up to hold families, the South Texas Family Residential Center in Dilley, and the Karnes County Family Residential Center near San Antonio, do not have licenses to hold children and their families.

Advocates threaten to sue over a proposal they call a 'transit ban'

Another Biden initiative that immigration lawyers have pledged to fight is one they describe as a "transit ban."

The Biden administration announced the policy that would block most asylum request from migrants who cross into the U.S. without authorization and fail to apply for protections in countries before arriving in the United States.

Immigrant advocates blasted the idea, charging that it's a variation on a transit ban that former President Trump sought to apply. That proposal was blocked in federal court.

"These are really not only terrible policies that have real implications for the safety of families and kids, but they're things that the president, of course, was against during his 2020 campaign," said Sergio Gonzales, a former adviser to then-Sen. Kamala Harris who's now director of the advocacy group Immigration Hub.

Organizations like the American Civil Liberties Union had been in negotiations with the Biden administration about ending various Trump immigration policies.

Lee Gelernt, an attorney at the ACLU who led the legal challenges against Title 42 in federal court, said they gave the administration the benefit of the doubt and held off on certain lawsuits.

"But at this point," he said, "I think it's clear the politics are significantly driving their decisions at the border and with respect to asylum."

The White House says it has created more legal pathways for migrants to enter and work

The White House rejected any blame for the fire in Mexico and said it was the Trump administration that forced asylum seekers to remain in Mexico while their claims were being processed.

John Kirby, a spokesman for the National Security Council, said the Biden administration is providing more avenues for migrants to live and work in the United States.

"The policies that the president put in place in January are encouraging migrants to seek more legal pathways in the United States and avoid crossing through Mexico altogether," Kirby said. "We're allowing up to 30,000 migrants with a sponsor each month."

President Joe Biden walks along the US-Mexico border fence in El Paso, Texas, on Jan. 8, 2023.

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Jim Watson

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AFP via Getty Images

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Preparing for a reelection bid, Biden confronted the politically-charged stakes earlier this year when he visited the U.S.-Mexico border the first time.

While toughening up enforcement, he also offered up some more legal pathways for migrants.

In January, he announced plans to accept 30,000 people per month from Haiti, Cuba, Venezuela and Nicaragua.

But that policy also has come under legal threat.

Twenty Republican-controlled states filed a lawsuit soon after the policy was announced asking a federal judge in Texas to halt the program.

Brown, who is now the managing director of immigration and cross-border policy at the Bipartisan Policy Center, said the legal challenges illustrate the limitations of the executive branch.

Congress needs to act, she said.

She said there is only so much the Biden administration can do without Congress putting together some kind of "responsible, pragmatic policy for the government."

"If you're hearing from me that I can't yet see how these individual pieces will work together to actually climb out of the problem we're in, that's exactly where I'm at," she said. "I don't yet see how all of this will work together to really manage things in a substantial way better than we have now."