Posted on March 15, 2022

Biden Administration Fights in Court to Uphold Some Trump-Era Immigration Policies

Zolan Kanno-Youngs, New York Times, March 13, 2022

President Biden promised to unravel the “moral and national shame” of the immigration policies enacted by President Donald J. Trump. But that was hardly the position Mr. Biden’s lawyers took in a federal courtroom earlier this year.

Appearing in January before a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit, government lawyers urged the court to let Mr. Biden enforce a restriction imposed by Mr. Trump that allowed migrants to be quickly turned away at the border.

Judge Justin R. Walker, an appointee of Mr. Trump, 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.


The answer is found in the collision of Mr. Biden’s fervent campaign trail promises to undo Mr. 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 Judge 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 Mr. 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 Mr. 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 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 Mr. Biden is too lenient on illegal immigration.


Mr. 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. {snip}


While Mr. Biden formed a task force last year to help unite minors who were separated from their parents under Mr. Trump’s “zero tolerance” policy, the government walked away from settlement negotiations late last year for the families of some of the 5,500 children.

After it was revealed that the government was considering $450,000 payouts to families, which prompted a backlash from Republicans and conservative outlets, Mr. Biden told reporters that the payouts were “not going to happen.”

The president later said the families deserved some form of compensation. But the administration pulled out of the negotiations in December and has sought to get the courts to dismiss families’ lawsuits against not just the United States, but also the Trump administration officials involved with putting the policy in place.


Immigration lawyers and other Democrats, including Senator Chuck Schumer, the majority leader, have been increasingly outspoken about Mr. 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.

During his presidential campaign, Mr. Biden did not specifically say that he would rescind the rule, but he committed to restoring the asylum process — an opportunity denied to many migrants subject to the public health order. Vice President Kamala Harris went further when she was a senator, criticizing the Trump administration for misusing a limited public health authority as a sweeping immigration tool.

Critics, including multiple former Biden administration officials, say the government is using the rule as an easy way to quickly remove migrants who are gathering at the southern border — and to fend off Republican attacks.

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.