Opinion: Biden is taking a page out of Trump’s immigration playbook

Opinion by Raul Reyes

(CNN) — In his administration’s most restrictive immigration policy to date, President Joe Biden announced a new executive order Tuesday that prevents asylum seekers from crossing the Southern border when a daily threshold of unauthorized crossings is exceeded.

The plan will take effect once daily border crossings number 2,500 people, meaning it could be instituted immediately, since daily totals already exceed that number.

The border would only reopen to asylum-seekers if the average number of unauthorized crossings remains below 1,500 for seven consecutive days — and it would reopen to migrants two weeks after that.

It’s easy to see why the president felt he needed to act: Biden has faced intense pressure from conservative Republicans — as well as some moderate Democrats — to take action on immigration. And a February Gallup poll found that his approval rating on immigration was only at 28%, suggesting a majority of Americans do not like what he is currently doing — or not doing — at the border.

But make no mistake: This executive order is a step backwards. The plan is unlikely to have much of an impact solving our border crisis, and runs the risk of alienating some of Biden’s political allies.

Biden’s executive action rests on shaky legal grounds — it is based on Section 212(f) of the Immigration and Nationality Act, which allows the president to suspend entry into the country of “aliens” who would be “detrimental to the interests of the United States.”

But existing law allows anyone who is physically present in the country, “whether or not at a designated point of arrival,” to apply for asylum. And when courts have weighed similar conflicting measures, they have decided that asylum law overrides any such executive action.

Consider that former President Donald Trump relied on Section 212(f) for several immigration actions (most notably his so-called “asylum ban” in 2018). Those proposals were struck down in the courts for violating asylum law. Biden’s executive order is sure to face legal challenges as well in the coming months — and the administration will probably lose.

It is an open question as to whether Biden can lawfully close the border to asylum-seekers and this latest crackdown will almost certainly put more migrants in harm’s way. Many potential migrants will be forced to wait in dangerous conditions in northern Mexico, where threats of kidnapping, sexual violence and even murder are not uncommon, exacerbating suffering along the border. Some migrants will turn to smugglers and traffickers to get them illegally into the country, which is hardly a desirable outcome for any policy decision.

It’s ironic that Biden, who once denounced many of Trump’s immigration measures, now embraces them. While candidate Biden pledged to restore asylum protections in 2019, the president rolled out a new rule last year presuming migrants ineligible for humanitarian relief unless they had first applied for asylum in another country on their way to the US.

With his new executive order, Biden is again contradicting his stated principles. In 2019, Biden said, “The idea that a country of 330 million people cannot absorb people who are in desperate need and who are justifiably fleeing oppression is absolutely bizarre.”

How unfortunate that the same president who championed the rights of asylum-seekers seems to be willing to toss aside their legal and human rights so easily.

In January, the president told reporters that he had “done all [he] could do” on the border and that he needed help from Congress. So why take this unilateral action now?

It’s not because border apprehensions are increasing. For the last three months, illegal crossings at the Southern border have fallen, plunging by 54% from December’s record highs.

The answer is politics — and it’s the reason why Biden’s executive order presents an unwise risk. By taking a page out of Trump’s immigration playbook, the president, who already faces an enthusiasm gap among voters, could potentially alienate many Latinos, progressives and immigrant advocates.

While the Biden administration understandably feels the need to address the border crisis, the president may well be misreading the public’s views on immigration. In a Pew survey this year, majorities of Americans said that border solutions should focus on increasing the number of immigration judges to speed up asylum decisions and creating more opportunities for legal immigration.

On a broader level, Biden’s action is disappointing because it plays to misguided fears that asylum-seekers and migrants are a threat to the most powerful nation in the world. And it potentially represents an overreach by the executive branch (the president) into the authority of the legislative branch (Congress). While the former can set some immigration policies, only the latter can make immigration law.

Restricting asylum at the border was bad policy under Trump and it is bad policy now. Vulnerable migrants deserve the right to claim asylum, not to be sacrificed for political expediency.

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