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Biden administration’s contradictions on immigration overshadow his achievements

U.S. Border Patrol agents apprehend a migrant illegally crossing over the Mexico and U.S. border in Calexico, Calif., on Jan. 4, 2022. (Eric Thayer/Bloomberg)

D.C. Circuit Judge Justin Walker struggled to pin down the Biden administration’s approach to the border Wednesday. In one lawsuit, he said, government officials argue that a Trump-era program that sends asylum seekers into Mexico to await a hearing is too dangerous.

Yet government lawyers are defending a separate policy that is expelling far more migrants to nations such as Haiti, despite the dangers they might face there. He called their position, a “self-contradiction.”

“So what are we supposed to do with this?” Walker asked the Department of Justice lawyer at a hearing Wednesday, after she asked a panel of judges to let the expulsions continue for now.

The appeals hearing over a lawsuit seeking to end the expulsion of migrant families unfolded as the Biden administration is hitting the one-year mark, with mixed results on President Biden’s pledge to create a far more humane immigration system than did President Donald Trump, who sought to deport as many immigrants as possible. Supporters say Biden has made great strides: He has shielded millions of immigrants from deportation, ended family detention, halted the border wall, scrapped Trump’s travel bans, welcomed tens of thousands of Afghans and raised the annual refugee cap to 125,000, which the White House said is the highest since 1993.

His administration has also granted “temporary protected status” to approximately 430,000 additional undocumented immigrants from countries such as Venezuela, Yemen and Haiti, allowing them to apply for work permits as long as they were already living in the United States.

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White House immigration policy adviser Esther Olavarria said at a panel discussion Wednesday hosted by the nonpartisan Migration Policy Institute (MPI) that more countries are under “active consideration” for temporary protected status.

But the administration has also expelled hundreds of thousands of migrants who attempted to cross the border illegally, federal records show, as they grapple with a record influx at the southwest border. U.S. Customs and Border Protection made 1.7 million apprehensions last fiscal year, which ended Sept. 30, up from nearly 460,000 the year before.

About 27 percent tried to cross more than once, MPI found, a much higher share than in previous years.

Apprehensions rose again last month — though they usually drop in December — to more than 170,000, the highest December since the agency was created, after the Sept. 11, 2001, terrorist attacks.

Democrats have been unable to leverage their slim majority in Congress to secure permanent residency and a path to U.S. citizenship for the 11 million undocumented immigrants who have lived here for years, even decades, as Biden hoped.

“It has been a challenge,” Olavarria said. “It has been frustrating to all of us on the inside and personally to me.”

She paused and added, “There’s much more that we need to be doing and could be doing, and the building blocks for that are also underway.”

Doris Meissner, a senior fellow with MPI and a Clinton administration immigration commissioner, said the institute counted 296 executive actions on immigration as of this week, compared with 86 executive actions during Trump’s first year.

“That outpaces the Trump record,” she said. “However, the news reporting and the public perception have been almost entirely on issues at the border and on Congress, for paralysis in Congress on immigration legislation.”

MPI also found that the drop in interior enforcement has had “perceptible effects,” according to a new report. The Biden administration has ended worksite raids and declared that merely being in the United States illegally is not a reason to deport someone, as it was under Trump. Immigration arrests in the interior of the country dropped to 3,000 a month, half the number during the last administration. Deportations from the interior have plunged.

Republicans have assailed the Biden administration for unwinding Trump-era policies and blamed that effort for the mass migration to the border, adding to the already bloated immigration-court backlog of nearly 1.6 million cases.

Sen. Ron Johnson (R-Wis.) called the administration’s policies “disastrous” this month, and Republicans have been eager to highlight them as they head into the November midterm elections that could shift the balance of power in Congress.

Lorella Praeli, co-president of Community Change, an advocacy organization, said at the MPI panel that the administration “has indeed made progress” on immigration, ending worksite raids, rescinding a “public charge” rule that sought to bar low-income immigrants and promoting citizenship or legal residency — something she is still hopeful would materialize.

But she said it is “shameful” that officials are still expelling migrants to nations such as Haiti, and urged them to stop.

Biden says separated migrant families deserve compensation. But in court, the Justice Dept. says they’re not entitled to it.

Biden ended Trump’s “Migrant Protection Protocols” program, which required migrants to await their asylum hearings in often-dangerous border cities in Mexico, where they have been targets for kidnappings and assaults. But the federal courts ordered the government to restart the program while they fight to end it in court.

The Biden administration has not ended Trump’s policy of expelling migrants under Title 42 of the public health code, saying the Centers for Disease Control and Prevention has maintained its order.

While covid is rampant in the United States, a Department of Justice lawyer said the “staggeringly high” influx of migrants at the border cannot be safely detained and processed in the United States during covid.

“Obviously, the government’s goal is to get back to a state of orderly immigration processing for everyone,” DOJ lawyer Sharon Swingle told the judges Wednesday. “But currently, in CDC’s view, the public health realities don’t permit that.”

It remained unclear at the hearing when that might change. Olavarria and other Biden immigration officials are soon to leave the White House, and she said Wednesday that there was “a lot of work that I am very, very proud of,” and more that needs to be done.

“I’ve worked in this area for now over 30 years, in and out of government. And when I have been out of government, I have always wondered, ‘Why is it taking so long? Why don’t they change policies faster?’” she said. “When I have been in government, and that has been now more than 18 years, I realize every day how difficult it is to enact change.”