Joe Biden Offers Bold Talk, Timid Action on Immigration

During the final presidential debate last fall, Donald Trump touted what he considered his biggest immigration accomplishment. “We got rid of catch and release,” he boasted. Joe Biden could have easily let the wonky phrase slide past him, focusing on poll-tested attacks of Trump’s policy of punitively separating immigrant families at the border. But in a move that undoubtedly stunned the consultants who had carefully coached him on messaging, Biden took the bait.

The former vice president launched into an extended defense of “catch and release”—a policy of allowing vetted asylum seekers to remain at liberty in the U.S. while awaiting a hearing, rather than languishing in jail at the border. He even counterattacked, explaining that Trump had made the situation worse by forcing families to wait in Mexico. “They’re sitting in squalor on the other side of the river,” he said passionately. 

This highly unexpected exchange was Biden’s final pitch to Americans on immigration, and it was the culmination of 18 months in which Biden adopted the opposite position from Trump on nearly every immigration issue. But putting out a position paper for journalists is one thing. Volunteering a defense of a controversial policy on a national debate stage with the presidency at stake is another. It was as clear a statement as you could get: Here was a candidate who was ready to reopen the country to immigrants, especially to asylum seekers and legal applicants. 

Or at least, that’s what Biden was saying in 2020.

Biden has been in politics long enough to have been on every side of practically every immigration debate. In the 1970s, he was reticent about paying to evacuate and resettle South Vietnamese anti-communist refugees. But by 1980, he was a leading proponent of the Refugee Act, which led to a massive increase in refugee resettlement from Vietnam and around the world. 

In 1986, Biden voted to legalize 3 million unauthorized immigrants. In 1996, he voted for the harshest crackdown on unauthorized immigrants in U.S. history. In 2006, he voted to build a fence along the southern border. In 2020, he campaigned to end funding for Trump’s border wall.

Biden is the Democratic Party’s rusty weathervane, and in 2020 he was following the prevailing winds. Not only did a supermajority of Democrats favor legalizing immigrants in the country illegally, Gallup found that for the first time in its 65 years of asking the question, most Democrats wanted to increase legal immigration from abroad as well. They even wanted more refugees and more asylum seekers. 

Biden campaigned accordingly. His platform was probably as pro-immigrant as any winning candidate since Lincoln. No category of immigration wouldn’t see a bump on his watch, he promised, and all of Trump’s “shameful” policies would immediately end. He promised to send a comprehensive immigration bill to Congress on day one. He would accomplish what all Democratic presidents before him had failed to deliver: real change.

During Trump’s four years in office, America saw more families, unaccompanied children, and other immigrants travel up through Mexico to cross the U.S. border than during all eight years under Obama combined. The vast majority came to request asylum, a legal status for those fleeing violent persecution in their home countries. They arrived primarily from Central America’s Northern Triangle—Guatemala, Honduras, and El Salvador—but also from Cuba, India, Africa, and dozens of other places. 

Stopping this flow became the focus of Trump’s immigration policy. Asylum seekers’ first choice would be to apply at one of the ports of entry where hundreds of thousands of visitors cross from Mexico to the United States each day since U.S. law explicitly allows anyone arriving in the United States to apply for asylum. But in 2018, the Department of Homeland Security (DHS) blockaded the legal crossings, stationing agents at the exact border line to push anyone who said they wished to apply for asylum back into Mexico. The policy (dubbed metering) allowed agents to accept only a token number to cross each day, but the goal was to deter people from coming at all. 

Unable to reach family and jobs arranged north of the border, even immigrant families who arrived with a game plan suddenly faced homelessness, hunger, and crime in dangerous neighborhoods within eyeshot of U.S. inspectors. New York Times reporters described the “grim sight” of destitute families sleeping on pizza boxes in the doorways of public restrooms, surrounded by piles of donations of diapers and baby formula.

Human Rights First, a watchdog group, maintains a database on crimes committed against migrants who have been forced to wait in Mexico. As of December 2020, it contained 1,314 crimes since 2018, including assaults, rapes, and murders, against migrants blocked by U.S. agents. Jasson Ricardo Acuna Polanco and Jorge Alexander Ruiz Duban—two Honduran teenagers—were stabbed and choked to death by thieves in December 2018 while waiting to cross after port inspectors sent them away. 

These dangers inevitably lead many immigrants to cross around the ports of entry. Pre-Trump, those who crossed illegally and requested asylum would be held in temporary Border Patrol facilities and transferred to Immigration and Customs Enforcement (ICE) detention centers. Asylum officers would interview them to determine if they had a “credible” claim, evaluating whether their claims matched the legal requirements of the law, were internally consistent, and matched other known facts or evidence. If they failed to meet that threshold or had committed any serious crimes, they were placed on the next ICE plane home. If they did, they were usually released to await a final asylum hearing many months from then. 

After briefly trying a policy of separating undocumented parents from their children, Trump officials settled on a more politically palatable backup for deterring comers: If immigrants fear being in Mexico so much that they’ll risk crossing illegally and being arrested, why not send them back to Mexico to await their hearings? Given the dangers, they figured, people will abandon their applications and go home.

A “remain-in-