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Biden Border Policies Face Challenges From Left and Right

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A group of people including children stand in line as people wearing camouflage clothing observe them.
Federal law enforcement agents and officers keep watch as immigrants line up to be transported from a makeshift camp between the US and Mexico border walls on May 13, 2023 in San Diego. (Mario Tama/Getty Images)

In San Francisco, immigrants’ rights lawyers are preparing court filings this month in a legal fight to end the Biden administration’s border policies, which they say are too restrictive and violate the rights of asylum seekers.

In Los Angeles, migrants keep arriving on buses sent from Texas by Republican Gov. Greg Abbott, who says President Joe Biden’s policies are not restrictive enough and create chaos at the border.

Asylum and border politics are playing out across California and, as the presidential election season begins to heat up, the rhetoric — and the stakes — are likely to get more intense in coming months.

With the ending in May of pandemic border restrictions known as Title 42 that first allowed former President Donald Trump and then Biden to expel migrants without a legally required asylum screening, the Biden administration is trying to thread the needle with an approach to border management that officials describe as both secure and humane.

But at a time of high migration globally, including at the U.S.-Mexico border, the administration is facing criticism from both the left and the right.

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On the one hand, progressives accuse the president of caring more about the political optics of border control than respect for the legal duty to provide refuge. On the other, Republicans see a political advantage in portraying the border as out of control and are denouncing what they call the “Biden Border Crisis” in campaign material, Congressional hearings, conservative think tanks and right-wing news outlets.

“[Americans] say, ‘We’d like to admit legitimate refugees,’ but there’s political pushback due to the high numbers and the perceived disorderliness,” said Theresa Cardinal Brown, an immigration expert at the Bipartisan Policy Center in Washington, D.C. “It’s clearly an issue Republicans want to hammer Biden over… It’s highly motivating for the Republican base.”

In California, the dynamics may be a little different. Two-thirds of Californians overall believe immigrants are a benefit to the state, though only a quarter of Republicans do, according to polling by the Public Policy Institute of California.

Biden’s new border management rule

Just as Title 42 lifted on May 11, the Department of Homeland Security put in place a new rule aimed at deterring unlawful border crossings, anticipating a surge in the number of asylum seekers trying to come to the U.S.

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Under the rule, migrants are required to make an appointment, using the Biden administration’s CBP One smartphone app, to be screened at an official port of entry. People caught entering the country illegally — even those with an asylum claim — face swift deportation and a five-year bar to reentry, unless they can show they were turned down for asylum in another country on the way here, or unless they face an acute medical emergency or an imminent threat to their safety.

To further reduce the number of people waiting at the border, the government is granting up to 30,000 people a month from Cuba, Haiti, Nicaragua and Venezuela a two-year humanitarian parole — similar to programs for Ukrainians and Afghans.

It’s too soon to tell whether these policies will reduce illegal border crossings. In June, the first month after the border rule took effect, the number of people encountered by the Border Patrol dropped dramatically — by more than 40% — to just below 100,000 arrests. But preliminary numbers for July, first reported in The Washington Post, were ticking back up again, though they are still lower than in recent months.

First stop: shelter in San Diego

Many migrants in Tijuana and other border cities report frustrating challenges with the government’s app and months of failed attempts to get an appointment — and some still try to cross illegally. But nationally, nearly 1,500 people a day are getting access to the U.S.-Mexico border using the app, officials say.

Those who cross into San Diego — roughly 250 a day, advocates say — are met by representatives from the San Diego Rapid Response Network and taken to the network’s shelter, operated by Jewish Family Service of San Diego. There they can rest for a couple of days and get a health screening, legal orientation and help with travel arrangements to their destinations.

After three years in which Title 42 gave asylum seekers no way to cross the border legally, the new system is safe, humane and orderly, said Kate Clark, who runs the immigration program at Jewish Family Service.

“I am absolutely supportive of the port of entry processing,” said Clark. “Also I’m very keenly aware of the challenges that non-citizens in very vulnerable circumstances are having in getting appointments… I think that there has been significant progress and we have some more work to do.”

But a federal lawsuit filed by the East Bay Sanctuary Covenant and other immigrant advocacy groups charged that the administration’s rule violates U.S. immigration law — which says anyone on U.S. soil may request asylum, regardless of how they entered the country.

Late last month, U.S. District Judge Jon Tigar in Oakland agreed. The Biden administration appealed the ruling to the 9th U.S. Circuit Court of Appeals, in San Francisco, with a hearing likely in late September.

Homeland Security Secretary Alejandro Mayorkas has said the administration is working with limited resources and a dysfunctional immigration system that Congress has not updated, but he defends the legality of the asylum rule.

Lawsuits make it more difficult for officials to implement a coherent border policy — and they send mixed messages to migrants and smugglers, said Doris Meissner, a senior fellow at the nonpartisan Migration Policy Institute, in Washington, D.C.

“I give the administration credit for trying to cobble together legal pathways and a humanitarian dimension to a more orderly border regime, in the face of no help from Congress, and litigation that could stop the initiatives,” said Meissner, who was the commissioner of the former Immigration and Naturalization Service under President Bill Clinton.

But to Nicole Elizabeth Ramos, director of the border rights project at the immigrant advocacy group Al Otro Lado, the Biden administration’s restrictions on access to asylum are no different than more sweeping rules imposed by former President Trump.

Ramos works in Tijuana, where many thousands of migrants are still waiting for slots to seek asylum in the U.S., and becoming increasingly desperate. She described one family who spent four months trying to make an appointment through the app and were only allowed into the U.S. after the father in the family was murdered.

“People are dying that don’t have to die because they don’t want to process people,” she said. “This is not a capacity issue,” she said. “This is a lack of willingness.”

Al Otro Lado filed suit last month in federal court in San Diego to prevent the government from requiring asylum seekers to use the app.

Bussing migrants to California to make a political point

Meanwhile, Republicans have sought to keep the spotlight on what Abbott has called an “invasion,” at the border.

Florida Gov. Ron DeSantis has made headlines by flying migrants from Texas to Martha’s Vineyard, and to Sacramento in June — in an incident that California Attorney General Rob Bonta vowed to investigate. And Abbott is waging a campaign of bussing migrants from Texas to Democratic-led cities, including Los Angeles, saying Texas border towns are “overwhelmed and overrun” because Biden is failing to enforce the law.

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The latest of eight buses to Los Angeles arrived today. City officials have coordinated with faith and human rights groups to welcome the 323 asylum seekers who’ve come so far.

In a statement, Los Angeles Mayor Karen Bass called the practice a “despicable stunt,” adding it’s “abhorrent that an American elected official is using human beings as pawns in his cheap political games.”

As California’s Democratic leaders push back against Republicans, Biden’s team is conscious that public perception of his border management could sway independent voters next year — and that’s led to a tougher border policy with the 2024 election in mind, says Meissner, of the Migration Policy Institute.

“If what they’ve done can hold, so the ‘chaos at the border’ narratives are off the front page, that’s the best they can hope for,” she said. “If the Abbott/DeSantis rhetoric can start to ring hollow, [Biden and his advisors] don’t mind pressure from the left. They want to be positioned as taking a tougher stance.”

But advocates like Kate Clark, who works with asylum seekers in San Diego every day, says what’s often missing in the political conversation is empathy for migrants as human beings.

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“It’s about centering humanity,” she said. “If there was more of a focus on the humanity behind this issue, maybe others would better understand the challenges that are faced and be more comfortable with moving forward with [welcoming] policies.”

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