Biden administration fights in court to uphold some Trump-era immigration policies
By Zolan Kanno-Youngs
President Joe Biden promised to unravel the “moral and national shame” of the immigration policies enacted by President Donald Trump. But that was hardly the position Biden’s lawyers took in a federal courtroom this year.
Appearing in January before a three-judge panel of the District of Columbia U.S. Circuit Court of Appeals , government lawyers urged the court to let Biden enforce a restriction imposed by Trump that allowed migrants to be quickly turned away at the border.
Judge Justin Walker, an appointee of Trump’s, was confused. The same lawyers had argued weeks earlier that enforcing a different Trump-era border rule would not “align with the administration’s” values. Now, they were essentially saying the opposite.
“What are we to make of this?” Walker asked.
The answer is found in the collision of Biden’s fervent campaign trail promises to undo Trump’s harsh immigration policies and the grim reality of trying to manage a surge of migrant crossings amid criticism from Republicans that the president is weak on border security.
The government lawyers in Walker’s courtroom were fighting to uphold a Trump-era public health rule allowing the United States to turn away migrants without providing them an opportunity to ask for asylum.
They have sought to defend the Biden administration — and former Trump administration officials — against lawsuits from parents who were separated from their children at the border, even after Biden called the separations “criminal.” And winners of a visa lottery, including those increasingly at risk in Ukraine, were surprised to see federal lawyers continue to delay the processing of their green cards.
The gulf between Biden’s words and his government’s legal arguments is testing the patience of some of his supporters, including top Democrats in Congress. They say the administration is not only moving too slowly on promised reforms but also is far too willing to use — and defend — Trump-era policies in the meantime.
“The only way I know if I’m reading a Biden or Trump administration brief is by looking at the signature block,” said Lee Gelernt, a lawyer with the American Civil Liberties Union. “There’s simply no daylight on the legal positions.”
The tension has also resonated inside the White House, where senior officials have been anxious that unwinding the Trump-era border restrictions would open the United States to an increase in illegal crossings at the southern border and fuel Republican attacks that Biden is too lenient on illegal immigration.
Gelernt cautioned that the similarities between the approaches of the Biden and Trump administrations extended only to Biden’s defense of certain immigration restrictions. Gelernt acknowledged that the Biden administration had worked to unwind other policies and help unite minors who were separated from their parents.
“Are Biden and Trump the same on immigration? No,” said Gelernt, who is representing families who were separated at the southern border in 2018. “Has Biden lived up to his campaign rhetoric? Also no.”
Biden has indeed taken steps to roll back much of his predecessor’s agenda on immigration, including sweeping bans on Muslim-majority countries and a rule allowing officials to deny green cards to immigrants in need of public assistance.
He has taken nearly 300 executive actions on immigration, according to the Migration Policy Institute. Nearly 90 of them were to at least begin rolling back Trump administration policies, most of them technical rules that typically went unnoticed by the public.
The administration has also allowed minors to cross the border. This weekend, the Centers for Disease Control and Prevention exempted children and teenagers from the Trump-era border rule, which justifies rapidly turning away migrants as a public health measure, minutes before a court order would have forced Biden to apply the rule to the minors.
Weeks before he came into office, Biden warned that he would need time to undo Trump-era rules, in part because he said unwinding them immediately could encourage migrants to journey to the border. Although the administration declined to comment on continuing litigation, Vedant Patel, a White House spokesperson, said, “We all agree that our immigration system is outdated and in bad need of reform.”
But, he said, “Making the necessary changes isn’t going to happen overnight.”
Still, many people, including some caught up in the Russian invasion of Ukraine, say time is running out for them.
Iryna Bohdan, a 50-year-old Ukrainian, won a green card lottery in May 2019 through the diversity visa program, which prioritizes countries with low levels of immigration to the United States. But she was barred from entering the United States because of the Trump administration’s pandemic restrictions.
She got her hopes up when Biden took office because he had celebrated the visa lottery during his campaign and even proposed expanding the program by about 25,000 visas. In the fall, two judges ordered the Biden administration to process the backlogged visas this year.
But Justice Department lawyers have appealed the court orders, saying the government still lacks the resources to process the visa applicants without delaying future winners of the lottery.
Immigration lawyers and other Democrats, including Sen. Chuck Schumer, majority leader from New York, have been increasingly outspoken about Biden’s continued use of Title 42, the emergency public health order that the government has said allowed border agents to turn away migrants at the nation’s borders to prevent the spread of the coronavirus pandemic.
A federal appeals court dealt a blow to the rule this month when it said the administration could no longer use the rule to expel migrant families to places where they would face persecution or torture.
Even though the court allowed Biden to keep the rule in place, some immigration advocates said the decision could be the beginning of the end of the border rule, and the administration has drafted plans to lift it by April, according to officials.
During a hearing in January, a lawyer for the government, Sharon Swingle, said using Title 42 to keep asylum-seekers south of the border was necessary to reduce the spread of the coronavirus in border detention facilities.
Walker reminded Swingle that the Biden administration had previously argued that forcing migrants back to Mexico while they await their asylum cases would not “align with the administration’s values” because of the risk of violence and sexual assault from cartel members south of the border.
But Swingle once again pointed to the public health emergency as reason to continue using Trump’s border restriction.
“I don’t believe,” she said, “there is a contradiction here.”