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‘Ad hoc responses’ take toll on US immigration policy, Meissner says

Former INS commissioner on the challenges facing Biden administration and need for action from Congress

Immigration activists rally near the Capitol on May 12. “Until Congress is willing and able to pass legislation, we will continue to have wild policy swing,” former INS Commissioner Doris Meissner says.
Immigration activists rally near the Capitol on May 12. “Until Congress is willing and able to pass legislation, we will continue to have wild policy swing,” former INS Commissioner Doris Meissner says. (Tom Williams/CQ Roll Call)

If there’s one area where Joe Biden has struggled during his first months as president, it’s immigration. Central American migrants flooded the border after his inauguration, responding to Biden’s promise of a more compassionate and humane response than they could have expected from Donald Trump.

The government is struggling to process the migrants, who include thousands of unaccompanied children, and keep them from contracting and spreading the coronavirus. Many are stuck in detention centers, while others are being released into the country on the promise that they return for a hearing.

Meanwhile, Biden flip-flopped after promising to raise the annual cap on refugees set by Trump at a historic low of 15,000, first saying he would not raise it, then relenting.

Doris Meissner, the former commissioner of the Immigration and Naturalization Service, who served under President Bill Clinton and is now a senior fellow at the Migration Policy Institute, recently joined the CQ Future podcast to examine Biden’s challenge. An edited transcript follows:

Q. After promising to increase the cap on refugees entering the U.S., President Biden changed his mind, then changed it again. What’s going on here? 

A. It’s very difficult to tell because there’s such a gap between what the commitments were. There does seem to be a real sense in the White House, probably politically, that the optics of large numbers of people coming, not only across the border, but in through other parts of the immigration system, is just in overdrive right now. But I would have to say that the way in which it’s been handled is confusing.

Q. The immigrants at the Southern border, coming up from the Northern Triangle of Guatemala, El Salvador and Honduras, are claiming asylum, and that’s a different legal category than refugees. What’s the difference?

A. They are the same from the standpoint of the definition that they meet in order to be admitted to the United States. In other words, a refugee or an asylum seeker has to be able to demonstrate a well-founded fear of persecution … based on five grounds: race, religion, nationality or ethnicity, political opinion, and/or membership in a social group.

But the difference is that refugees are people that have been abroad, and we interview them and determine their eligibility for refugee status somewhere else in the world, and then we bring them to the United States. Whereas people who are seeking asylum get to the United States on their own.

Q. So the challenge is separating out the legitimate claims from ones that don’t meet the standard. What’s your assessment of how President Biden is doing? 

A. In the past, we mainly had a Mexican flow, which was young, male and single, looking for work in the United States. Now we have mixed flows of people that are looking for protection, mixed in with the economic deprivation and lack of opportunity. Unfortunately, our government agencies have really not adapted, beyond treating these migrant flows as an emergency. We’ve had ad hoc responses to this change, which is a really fundamental shift in the nature of migration across the Southwest border.

That’s what President Biden is facing with, government agencies that really have not been able to change their infrastructure.

Q. Is Biden’s more compassionate attitude to blame for the increase in migrants?

A. These numbers have been building up over the last year or so. There definitely has been some pent-up demand because of policies from the prior administration that totally shut down access to asylum. Add to that Biden deciding to no longer turn juveniles back at the border, those things cumulatively generated flows.

Q. Asylum seekers can wait years for a hearing. Is it possible to process these claims quickly enough?

A. That caseload is now at a historic high, and that didn’t just happen overnight. That’s been cumulative over recent years, but the immigration judge system is facing a caseload of 1.3 million. It’s never been that high in our history. The average amount of time right now that people are waiting for their hearings is more than 800 days.

So it’s going on close to three years, and that in and of itself creates an incentive for migration. They are safe for quite a period of time.

The system is deeply broken. There are proposals that are under consideration. They are not quick answers. They will take regulatory changes. They would take some bureaucratic changes. They would take, in some cases, where the immigration courts are concerned, hiring and budget decisions.

Q. President Trump required asylum seekers to wait in Mexico, pending adjudication of their claims. How did that work?

A. It clearly was an effort to skew the asylum system in a way that would create deterrence, that would discourage people from coming. From a humanitarian standpoint, it was really unacceptable. Migrants that were waiting in northern Mexico were in very dangerous places.

One of the things that the Biden administration then did was to say that those people would be allowed to enter the United States while their claim was being heard. But those claims, as far as I know, are not being accelerated, and that then exposes the incredible brokenness of this asylum decision system.

Q. Biden says he wants to help the Northern Triangle countries correct the factors driving their citizens to leave, whether that be gangs, violence or poverty. Do you hear any promising proposals along those lines? 

A. I believe that the Biden administration has a very sophisticated long-term vision, and it’s a vision that is important for the longer-term future of the country and the effort to deal with the region and begin to implant efforts and engagement that represents a regional approach. But the timelines for what you can accomplish in the region are much longer than what’s necessary at the border right now, given the numbers that we see.

It has to do with the borders between Guatemala and other countries, and that is law enforcement, as well as in some of these countries, military resources, because that is how they do their enforcement. But beyond that, there is definitely an effort to engage these countries, the business communities in these countries, in terms of job creation and to pressure the governments to deal with anti-violence, anti-gang activity, anti-smuggling, anti-trafficking, all of these kinds of longer-term efforts that do require foreign assistance.

Q. Republicans are trying to make a political issue of this. Do you think this is going to be a big political issue going forward? 

A. It’s clearly being teed up as a big political issue. You have a mirror effect here of the people that were active in the last administration on these policies pushing back now that they are being unwound by the current administration. It’s very much the same individuals, and they are using the issue of immigration and migration as a political wedge issue.

Q. Do we have to totally rethink our immigration policy, or can we work around the edges and get to a solution?

A. I think it’s both. We have to be cognizant of the political realities here and the fact that there’s only so much that can be done by the executive branch. It’s Congress that has been missing in action, and until Congress is willing and able to pass legislation, we will continue to have wild policy swings.

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