Can Biden create a truly 'safe, orderly and fair' U.S. immigration system?
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Can Biden create a truly 'safe, orderly and fair' U.S. immigration system?

Whether America’s decades-old system based on deterrence and punishment will be replaced with something truly better remains an open question.
Illustration of a young child behind the border fence separating the U.S. and Mexico and a group of migrants crossing the border fence.
The continuation of deterrence has not stopped migration to the United States.MSNBC; Redux; AP

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This has been adapted from the paperback edition of “Separated: Inside an American Tragedy.”

What is a “safe, orderly and fair” immigration system?

In the wake of the Trump administration’s family separation crisis, and the promises of creating such a system by the Biden administration, it is still an open question, even following one of most shameful chapters in modern American history.

The Trump administration’s deliberate and systematic separation of thousands of migrant children from their parents was, according to humanitarian groups and child welfare experts, an unparalleled abuse of the human rights of children.

The American Academy of Pediatrics says the practice will leave thousands of kids traumatized for life.

The American Academy of Pediatrics says the practice will leave thousands of kids traumatized for life.

Over two years after the policy’s implementation, onstage at the final 2020 presidential debate in Nashville, my colleague Kristen Welker masterfully questioned then-President Donald Trump about the systematic separation of thousands of migrant children from their parents. An estimated 63 million people were watching.

“Mr. President, your administration separated children from their parents at the border, at least four thousand kids. You’ve since reversed your zero-tolerance policy, but the United States can't locate the parents of more than 500 children. So how will these families ever be reunited?”

Trump pivoted to blaming “coyotes and lots of bad people, cartels,” just as he did at the height of the policy.

Kristen asked again.

“But how will you reunite these kids with their families?” Another dodge by the president, who blamed Biden for building the cages, accurately, as some separated children were housed in during his Vice Presidency. But Trump did not acknowledge his “torture” program, as Physicians for Human Rights put it.

Once again, she persisted. “Do you have a plan to reunite the kids?”

“Yes, we’re working on a very — we’re trying very hard,” Trump told her, before going back to his lies about the children he separated. “But a lot of these kids come up without the parents, they come over through cartels and the coyotes and through gangs.”

Turning to former Vice President Joe Biden, Welker next asked for his thoughts.

“These 500-plus kids came with parents. They separated them at the border to make it a disincentive to come to begin with,” Biden said. “Big real tough, really strong. And guess what? They cannot — it’s not coyotes that bring them over, their parents were with them. They got separated from their parents. And it makes us a laughingstock and violates every judge of who we are as a nation.”

Biden continued, after Trump attempted to interject: “Let’s talk about what we’re talking about. What happened? Parents were ripped — their kids were ripped from their arms and separated. And now they cannot find over 500 sets of those parents and those kids are alone.”

Biden’s voice continued to rise: “It’s criminal. It’s criminal.”

Joe Biden was elected the 46th president of the United States on November 3, 2020. He was declared the victor of the election by NBC News and other outlets on Saturday, November 7.

That morning, as I drove home to Los Angeles from the post-election disinformation effort by Trump allies to reverse or overturn the election outcome in Nevada, a father who had been separated by the Trump administration and was now living with his son in the Washington, D.C., area, sent me a WhatsApp message.

It was a GIF of an ebullient man dressed as Uncle Sam, celebrating in a looping victory dance.

“Hahah,” I texted back.

“Gracias a dios,” he replied.

Thank God.

The plan focuses not just on what the administration says is a “rebuilding” of an asylum system, but the continuation of a deterrence-based approach to keeping migrants out.

The Biden administration promised a “a safe, orderly, and fair” process for asylum seekers and a new approach to immigration. Indeed, Trump is gone, and in recent weeks the Biden administration has published a “blueprint that outlines the next steps Federal agencies will be taking to continue implementing the President’s transformative vision for a 21st century immigration system.” But the plan focuses not just on what the administration says is a “rebuilding” of an asylum system, but the continuation of a deterrence-based approach to keeping migrants out.

“We have to deter irregular migration,” a senior administration official told me this week. “We have to do everything. The immigration conversation is so one dimensional. We are taking an entirely new approach to this issue.”

But the continuation of deterrence, a decades-long bipartisan approach to immigration that has not stopped migration to the United States, means what is happening at the border, in part, looks just like what we saw under the previous administration, and in some cases, the ones before that.

Trump’s Covid-19 health restrictions continue to be used by the Biden administration to immediately expel migrant families across the border without access to lawyers. A record number of migrant children crowded Border Patrol facilities at the start of the Biden administration because of backed-up Health and Human Services shelters, a repeat of years of overcrowding the administration has worked to alleviate.

Just this week, whistleblowers say they were told to downplay a Covid-19 outbreak at one shelter, as the administration separately announced it would “promptly remove” migrants who do not qualify for asylum “to their countries of origin.” Even righting the wrongs of family separations, with as much public support and blazing spotlight as the families have received, will not be as easy as a debate stage quip, a campaign commercial, or a television interview.

During the presidential transition, President-Elect Biden told my colleague Geoff Bennett his Department of Justice would conduct a “thorough, thorough investigation” of the separations to determine responsibility and potential criminality.

When I spoke with Homeland Security Secretary Alejandro Mayorkas in March, soon after his Senate confirmation, Biden’s words about the family separation policy being “criminal” remained top of mind.

“Mr. Secretary, the Attorney General is a member of the task force as well, or when he is confirmed will be a member of the task force,” I pointed out to him, with Merrick Garland’s confirmation still not a done deal. “Will his role be to look at the potential criminality of members of the Trump administration?”

“I think we are focused right now, Jacob, on reuniting the families and restoring them to the best of our abilities,” Mayorkas responded. “This will be an all-of-government effort. It is not just the Department of Homeland Security and the Department of Justice. It’s also the Department of State working with our international partners, the Department of Health and Human Services to bring whatever health relief we can to the families, and we’re going to work, as I mentioned, with international organizations, our international partners, and the private sector, this is all of America effort.”

Mayorkas hadn’t answered the question. I tried again.

“How is it possible that the task force can issue a report so that it never happens again, if there is not a holistic investigation into potential criminality of the Trump administration?”

“Well, I — I haven’t excluded anything but what I’m focused on right now is reuniting the families,” he told me. “And in terms of not happening again, our intention, also, in the task force, after the reunification of the families, after restoration of the families, to the best of our abilities, and as fully as the law permits, is to build institutional safeguards to make sure it does not happen again.”

He hadn’t excluded anything.

The door appeared open to a criminal investigation of the American tragedy of the Trump administration’s family separation policy.

Whether there will ever be one, and if America’s decades-old deterrence-and-punishment based immigration system will truly be replaced with something “safe, orderly and fair,” is still an open question.

“We know that these things don’t change overnight,” said the Biden senior administration official. “We’re at month six. It’s going to take a while to see these results.”