Immediately after President Joe Biden took office, he instructed acting Attorney General Monty Wilkinson to rescind former President Donald Trump’s “zero tolerance” immigration policy, which separated thousands of migrant parents from their children at the U.S.-Mexico border. Buried in the news coverage of Biden’s gesture was the fact that the updated guidance did not stop family separations. It just told prosecutors to use their discretion.
Wilkinson said federal prosecutors should not rule out charging border crossers with misdemeanors, which requires family separation when parents are taken into custody. But prosecutors should “take into account other individualized factors,” he wrote, “including personal circumstances and criminal history, the seriousness of the offense, and the probable sentence or other consequences that would result from a conviction.”
That certainly represents an improvement on Trump’s approach, which required that federal prosecutors charge every single adult immigrant who crossed the border illegally. But while that policy was without nuance or mercy, it had already lost some of its teeth by summer 2018, thanks to a court injunction.
With Biden in charge, federal policy at the border remains a mess. “It’s still difficult to ask for asylum at ports of entry,” says Alex Nowrasteh, director of immigration studies at the Cato Institute’s Center for Global Liberty and Prosperity. “You have to basically try to sneak into the country illegally and ask a Border Patrol agent. But by doing that, you commit a federal crime.” What’s more, Biden announced in April that he would maintain Trump’s cap on refugee admissions despite pledging to raise it. Following a backlash, White House Press Secretary Jen Psaki announced the administration would raise the cap after all.
Biden’s softer approach to family separation is a reminder that the legal avenues for immigrating to the U.S. are inaccessible to many would-be immigrants, which encourages illegal entry. While separating adults from their children makes sense when the parents are charged with “murder, theft, terrorism charges, [and] other types of serious crimes,” Nowrasteh says, misdemeanor border crossers generally don’t deserve the same treatment.
It would be a false equivalence to say that all approaches to family separation are equally illiberal. “Obama did absolutely separate children,” Nowrasteh says. “That’s absolutely true, and Biden’s going to do it too. He’s probably already doing it in some cases that are unjust. But the difference was that the Trump administration did it systematically to basically everyone.”
Still, a return to the status quo ante is only an improvement when compared to a policy like zero tolerance. Biden promised he’d be better on immigration—not just better than Trump but also better than his former boss. In many ways, he has yet to deliver on that promise.
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