On Tuesday, President Biden issued a proclamation that gives the Department of Homeland Security the authority to temporarily block migrants from seeking asylum between ports of entry at the United States-Mexico border. This means that the only people who are able to apply for asylum at the border are those who can secure an appointment through the government’s CBP One app, in flagrant violation of immigration law.
The president’s decree echoes a 2018 Trump-era policy that invoked the same powers to deny protections to people seeking asylum between ports of entry. That one was blocked by the federal courts. The American Civil Liberties Union has said it will challenge this ban as well.
Mr. Biden may think that shutting the border to asylum seekers will improve his standing with voters. But he is falling into the trap of believing that the only way to counter Republican criticism and appeal to voters for whom immigration is a top concern is to restrict asylum even further. Rather than reduce unauthorized migration, his policy will likely push people to cross at more dangerous areas along the border.
Though there’s little to be done now about this recycled immigration policy, Mr. Biden has a moral obligation to use his legal authority to protect the communities he promised to defend four years ago while on the campaign trail. That would be a smart political move.
When the immigration fight is only about fear mongering around the border, Donald Trump wins. But our nation’s immigration challenges transcend the border. The president can set himself apart by taking a more holistic approach. To do so, he can enact policies that benefit immigrants and Americans alike.
Only Congress can create a path to citizenship for the 11 million undocumented immigrants living in the United States. But Mr. Biden could use his executive power to shield immigrants from deportation and allow them to work legally. Even temporary protections of this kind could have a profound effect on people’s lives.
Democrats have moved to protect undocumented immigrants in the past. After trying and failing in 2010 to get Congress to pass the DREAM Act — which would have created a path to citizenship for some undocumented youth brought to the United States as children — President Barack Obama explored every legal option he had to protect Dreamers.
In June 2012, he announced the creation of the Deferred Action for Childhood Arrivals, or DACA, program. DACA’s temporary shield from deportation and the provision of work permits were life changing for many people who were able to enroll in school and start businesses. When Mr. Trump tried to end the program in 2017, businesses and policymakers from both parties applied legal pressure on his administration to reverse course.
It can be hard to see a path forward in today’s polarized immigration debate. But both George W. Bush and Mr. Obama used their executive power to protect the undocumented family members of military service members and create a policy that grants undocumented immigrants parents, spouses and children temporary permission to work and stay in the United States.
A similar program could shield the undocumented spouses of American citizens, particularly those who have lived in the country for many years, from deportation and grant them the right to work legally, and remove a hurdle blocking them from becoming U.S. citizens. It should require family members to undergo a background check, pay a fee and meet strict eligibility requirements. Mr. Biden can rise to the moment by leveraging the parole power to fulfill his promise to keep families together.
Mr. Biden could also extend Temporary Protected Status to more people, which he has already done for some immigrants to great success. Under the law, Mr. Biden has the discretion and power to give temporary legal status to people fleeing their homes because of natural disasters and conflict.
His Department of Homeland Security could expand the protections to include additional countries — like the Democratic Republic of Congo, Ecuador and Guatemala — if the agency determines they meet the requirements of the T.P.S. statute. That would allow people to work legally, giving beneficiaries living in cities that have been overwhelmed by new arrivals the ability to support themselves and fill critical labor shortages. T.P.S. has the added benefit of reducing unauthorized migration to the border. When people can legally work and send money home, remittances become a tool that can prevent further economic displacement.
In the last decade, the vast majority of immigration policies issued by the executive branch have been challenged in court. But the risk of litigation should not be an excuse for inaction. Millions of people in our communities still live without a work permit or protection from deportation, and Mr. Biden has the power to help them.
Fortunately, unlike this week’s proclamation, these proposed policies have strong legal footing. Parole has been used to protect broad groups of immigrants since the 1950s; even recently, litigation against Mr. Biden’s parole pathways for Cubans, Haitians, Venezuelans and Nicaraguans withstood a legal challenge from Texas.
If elected to a second term, Mr. Trump has promised to crack down on immigration. Should he try to end T.P.S., he would have to overcome the same legal hurdles he faced when he attempted to suspend the program for several countries during his first term.
As long as both parties keep fighting over the border — rather than looking at the bigger issues facing immigrants in America today — they will fail to build the immigration system that our country needs. Our economy has always relied on immigrants, but we are far from building a bipartisan consensus to modernize our immigration system, which has not been meaningfully reformed since the Immigration Act of 1990.
Rather than playing into the hands of Mr. Trump on border politics, Mr. Biden should be pursuing policies that help people come to the United States legally, which could help relieve the nation’s worker shortage, reverse rural population decline and give us a competitive advantage over every other aging nation.
Congress needs to provide a permanent path to citizenship. But in the meantime, it’s critical that the president takes seriously the urgency of protecting longtime undocumented people in the United States and continues to build political momentum for sensible immigration laws.
Mr. Biden can and should lead his party back to a time when fighting for the undocumented was a major policy priority alongside border security. It worked for him before, and it can work for him again. But to do so, he must act now.
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