The centerpiece of former President Donald Trump’s immigration plan — the infamous wall on the border with Mexico — never came to pass. But the physical wall was never the only component of his war on immigrants. He and his staff still managed to erect an intangible dam of sorts at the border, constructed out of a slew of policies meant to hinder, discourage and otherwise bottleneck the progress of hundreds of thousands of migrants seeking to legally settle in the United States.
Since Joe Biden took office, his administration has been faced with a choice: Dismantle the blockages Trump erected in favor of either a new system or the pre-Trump status quo; or maintain the dam out of fear of what would happen if it came down. That this has even been a question for Biden and other Democrats shows that Trump’s most lasting policy legacy was his assault on legal immigration.
Trump and his main immigration policy adviser, Stephen Miller, spent four years crafting as many ways as possible to limit immigration, from the so-called “Muslim travel ban” to the “Remain in Mexico” policy. Under the latter, applicants for asylum in the U.S. — which is protected under domestic and international law — were forced to await their immigration court hearings in Mexico rather than the United States.
Those policies have created an ethereal barricade that has caused an immense buildup of pressure at the border.
“Remain in Mexico” was implemented in 2019, the same year Trump’s administration issued the “third-country asylum rule,” which denied entry to asylum applicants who hadn’t applied for asylum in any of the countries they’d passed through on their way to the U.S. The backlog these policies created were only exacerbated by the Covid-19 pandemic and the use of Title 42, a public health rule Trump created that lets the U.S. immediately turn back asylum at the border.
Those policies have created an ethereal barricade that has caused an immense buildup of pressure at the border, pressure that the Biden administration is now left trying to relieve. Given the strain that the U.S. immigration system was already under, after years of neglect in favor of a militarized hardening of the border, it’s easy to presume that a sudden massive uptick of applicants would overwhelm it. (I’m doing my best to avoid metaphors that dehumanize immigrants, likening them to destructive floods or deluges, but in this case the comparison to fluid dynamics seems apt.)
But Trump’s changes are proving difficult to roll back: practically, legally and politically. Biden ordered the “Remain in Mexico” policy rescinded on his first day in office, but a federal judge forced its reinstatement. It was only in June that the Supreme Court finally ruled the program could end, and the Department of Homeland Security began winding it down in August.
Though Title 42 is due to end this month, the Biden administration, wary of the political mess that will likely ensue, has been loath to let it go. Republicans have been adamant that the restriction remain in place, even as they’ve eschewed any other form of Covid-era pandemic mitigation and, at the same time, they have been eagerly awaiting the chance to blame Biden for a “new surge of border crossings” that will happen if Title 42 ends. So, until the court-ordered deadline of Dec. 21, border officials will continue to turn back asylum-seekers, only delaying the inevitable.
NBC News reported Monday that Biden’s team is looking into trying to mitigate the predicted increase of asylum-seekers at the border by limiting who qualifies for asylum. Asylum officers would be “instructed to let migrants enter the U.S. to pursue protections if they qualify under the international Convention Against Torture, a much higher bar than previously required for asylum.” If they can’t meet that bar, asylum-seekers would “have to show they first sought and were denied asylum in a country they passed through on their way to the U.S. border.”
Immigration rights advocates are already incredulous that Biden’s team would look to Miller for ideas. For those keeping track, that last part is remarkably similar to the transit ban that Miller and Trump instituted in 2019 and was overturned by a federal judge in 2020. Immigration rights advocates are already incredulous that Biden’s team would look to Miller for ideas. “If the Biden administration simply substitutes the unlawful and anti-asylum Trump transit ban for Title 42, we will immediately sue, as we successfully did during the Trump administration,” ACLU lawyer Lee Gelernt told The New York Times. As the end date for Title 42 approaches, we’re already seeing more migrants crossing the border, which is providing fodder for Republicans to further criticize Democrats. But those same Republicans are unlikely to support DHS’s request for an additional $3 billion to handle the uptick without corresponding investments in border security. “If Republicans in Congress are serious about border security, they would ensure that the men and women of the Department of Homeland Security have the resources they need to secure our border and build a safe, orderly, and humane immigration system,” a White House spokesperson told NBC News. To recap, that means that even as Trump-era restrictions are about to fall, new Trump-like restrictions are being prepared to replace them. At the same time, Republicans won’t support any additional resources or support to address the inevitable increase in border crossings. They will, however, happily demonize migrants for their own political gain. It’s a rough place for the Biden administration to be, especially absent an actual change in immigration laws meant to actually support asylum-seekers. It’s a win-win situation for Trump: Either Biden keeps the limits on immigration in place, or he risks the system being overwhelmed as those limits are lifted. Trump, who prefers flashy stunts over long-term strategic planning, wanted a wall because it would be an imposing, if ineffective, monument of his rule. He didn’t get that wall, but what he and Miller put into place instead is proving much, much harder to tear down.
Hayes Brown is a writer and editor for MS NOW. He focuses on politics and policymaking at the federal level, including Congress and the White House. 
