(Bloomberg) -- This is the fourth story in the series Courting Injustice, which reveals how US immigration courts deny many deserving asylum seekers a fair hearing.
President-elect Donald Trump’s vow to deport millions of migrants and dramatically restrict the US’s asylum program will get help from an unlikely source: President Joe Biden, the man whose immigration record Trump lambasted on his way back to the White House.
After an unprecedented number of asylum seekers sought entry at the southern border in the second half of 2023, Biden this year stretched the use of executive power to restrict access to asylum. His administration also persuaded more countries to accept deportees, and in recent months has sought to expand immigrant detention capacity, according to federal contracting records.
Despite such efforts, Trump successfully used Biden’s immigration policies to put first the president and then Democratic nominee Kamala Harris on the defensive during the campaign. Yet Trump is now expected to build on those same Biden policies to make good on his promise of mass deportations.
“The Biden administration has absolutely paved the way for this,” said Lisa Koop, legal director for the National Immigrant Justice Center. “They’ve served up asylum seekers on a silver platter.” Neither the White House nor a spokesman for the Trump campaign responded to a request for comment.
Both presidents have been hampered in their policy goals by the right to claim asylum — and both have sought creative ways to try to get around it. Enshrined in both international and US law, the program is designed to protect those persecuted in their home countries because of their race, religion, political opinions or membership in an oppressed group.
During Covid-19, Trump used a World War II-era health regulation to deny millions of border crossers the chance to file for asylum, a policy the Biden administration extended. After the pandemic waned, Biden enacted sweeping rules that essentially froze all asylum applications during times when border crossings surge, regardless of the strength of an applicant’s case.
He allowed one important exception: Before arriving at the border, asylum seekers can download a smartphone app to schedule an appointment — after a waiting period that can take months — to present themselves to a border control agent and formally apply.
Experts say Trump could retain Biden’s current asylum restrictions and simply get rid of the exception for those who apply through the app before they reach the border. That move would save the months it would otherwise take the incoming administration to craft an entirely new rule.
This seemingly arcane change in procedure has big implications: Asylum seekers have to use the app in order to get the exception, so eliminating it would shut down the last remaining way to seek an asylum hearing when border crossings exceed the threshold.
Such crossings plummeted this year after implementation of the rule, which kicks in anytime encounters at the border reach a seven-day average of 2,500; that prohibition remains in place until encounters drop below 1,500 for 28 consecutive days.
“They definitely could keep Biden’s rules, but try to make them even more restrictive,” said Jean Reisz, co-director of the Gould School of Law Immigration Clinic at the University of Southern California.
Such a move would likely be challenged in court by those who interpret it as an outright asylum ban, which only Congress can impose.
Trump’s promised deportation push also could affect millions of people who have made an asylum claim already. When Trump left office, America’s immigration courts were backlogged with 1.4 million pending cases; that number has soared to about 3.7 million, about 1.5 million of which involve people requesting asylum.
The Biden administration has increased the number of immigration judges, but it has had little effect on reducing that backlog. Whether Trump will try to deport those still waiting for a final asylum decision is unclear, but such a move likely would trigger a fierce response from immigrant advocates and human rights organizations, who argue that officially applying for asylum should protect them from deportation until their cases are adjudicated.
“That is going to be litigated immediately, and there will likely be a major effort to pour legal resources into that, which could stymie what the administration is trying to do,” said Doris Meissner, who in the 1990s headed the Immigration and Naturalization Service, the precursor to the Department of Homeland Security.
One of the most powerful tools Trump could use to kickstart mass deportations, experts predict, would be a change in the terms of a process known as “expedited removal.” Created by Congress in the 1990s, it allows officials to quickly deport border crossers who have been apprehended within 100 miles of the border and who have been in the country fewer than two weeks.
Trump could apply it to the entire US and extend the eligible time window to include any undocumented people who’ve been in the country for up to two years. This would make it easier to deport perhaps millions of undocumented migrants living and working in cities across the nation.
Those rapid deportations could even apply to people who are essentially victims of a paperwork error, according to Koop, of the Immigrant Justice Center. When entering the immigration court system, migrants receive a document called a “notice to appear” in front of a judge. Multiple courts have ruled that specific times and dates for an initial court appearance must be listed on these documents. But many of those so-called NTAs are never actually entered on court dockets, leaving people in a legal limbo.
“We see in Chicago, for example, a lot of people coming to court on the date that’s on their notice to appear, only to learn the NTA wasn’t actually filed with the court,” Koop said. “This is definitely not unique to the Biden administration, and we saw it under Trump as well. But there are people that can have an NTA for years before it ever gets filed with the court.”
Another group that potentially could be targeted for deportation includes almost 300,000 asylum seekers whose cases Biden officials removed from dockets by citing “prosecutorial discretion” because they weren’t considered a threat to public safety — a tool his administration used more than previous ones.
The status of those migrants — unless they have reapplied for asylum — remains unclear. “I think a lot of people whose cases were terminated are just living in the US undocumented, without any other form of immigration relief or benefits available to them, so they would definitely be at risk,” Reisz said.
Under Biden, the US has deported almost as many people as Trump’s first administration did — about 1.48 million compared with 1.5 million, according to the Washington, DC-based Migration Policy Institute.
During Trump’s first term, numerous countries either refused to accept deportees or “slow-rolled” them, requiring extensive documentation and paperwork. But Biden’s team smoothed the process with countries hesitant to accept deportees, said Kathleen Bush-Joseph, a lawyer and policy analyst with the Migration Policy Institute.
“The Biden administration deported people to 170 countries last year — the result of a concerted diplomatic push,” she said. “That may do a lot to help Trump.”
Worried that Trump could exploit Biden policies to supercharge deportations, immigration advocates are lobbying the lame-duck administration to erect obstacles.
Since the November election, they’ve urged the Biden administration to rescind a provision passed under Trump that made asylum off-limits for certain groups, including those citing fears of domestic violence or gangs. Biden Attorney General Merrick Garland, who is in charge of the immigration courts, reversed decisions based on those restrictions. But the Trump provision remains on the books.
More than 300 civil rights and immigrant advocacy groups also have signed a series of letters to Biden officials asking that the president finally uphold a promise he made during his campaign to end the use of detention centers run by for-profit companies, which are often criticized by advocates for providing substandard care to detainees. Today, a greater share of immigrant detainees — nearly 90% of them — are held in privately run detention facilities than were during Trump’s term.
“Now is the time to take decisive action to prevent catastrophe for millions of people and avoid handing the keys to an expanded and inhumane detention and deportation system to the next president,” stated one of the letters.
Biden’s team has quietly been pushing to increase capacity in those same centers. According to federal contracting proposals and documents obtained in a lawsuit filed by the American Civil Liberties Union, Biden’s Homeland Security Department this year has sought to expand existing ICE detention facilities in as many as 16 states.
In August, ICE sought to add 850 to 950 detention beds each in El Paso, Phoenix, San Francisco and Seattle, according to an agency contracting proposal. Three months earlier, the agency sought proposals from private contractors to add almost 1,000 new beds serving ICE field offices in Chicago, Salt Lake City and Harlingen, Texas. A third ICE proposal revealed a plan to add 600 beds in New Jersey.
Such expansion plans would provide a boost for the incoming administration, allowing them to hold more people destined for deportation, said Eunice Cho, a senior staff attorney for the ACLU’s National Prison Project. “In essence, the Biden administration was laying down a runway for the Trump administration to come in and support ICE’s plans for mass deportation,” she said.
Read next: Justice Is Beside the Point in America’s Immigration Courts
--With assistance from Sinduja Rangarajan and David Voreacos.
©2024 Bloomberg L.P.