Shortly after taking office President Biden showed promise for a more humane approach to the border via removing one of Trump’s most prominent anti-immigrant weapons, the “Remain in Mexico” policy. This policy forced over 60,000 people to await their immigration proceedings outside the United States, to face possible kidnapping, extortion, or worse.

Of course, there’s always a catch. The Biden administration did stop “enrolling” people into “Remain in Mexico,” and for many this was life-changing. On the ground, asylum-seeking families, especially those with clearly discernible disabilities, have been granted entry into the U.S. There have also been heartwarming stories featuring children being allowed to bring pets who they lived with them across the border. Unfortunately, these moments are few, relative to the abuses that continue.

Unfortunately, although the Biden Administration has paroled in some people sent to Mexico under MPP, the vast majority of people subject to MPP are still in Mexico, and there is no clear plan as to how or when more people might be able to pursue their asylum claim inside the US. In addition, continued practices such as the “Title 42” expulsions, and on the grounds accounts of immigrants at Ports of Entry being told to come back later, rather than be processed, has meant that the spirit of “Remain in Mexico” is in effect and therefore the danger it poses to hundreds of thousands is equally alive.

We do not give the President a failing grade here because there appears to not be a mass practice of forcing asylum seekers to await out the adjudication of their proceedings in Mexico, and therefore this program in name has been shut down. However, the administration’s deterrence efforts and the lack of planning for others subjected to MPP effectively leave the “Remain in Mexico’s” spirit alive and so we cannot pass the President. 

Shortly after the coronavirus pandemic began to surge across the United States, the Trump administration took executive action to weaponize a health law and undertake mass extrajudicial expulsions of hundreds of thousands of immigrants apprehended along the Southern border. We call these “Title 42” expulsions, after the U.S. code. These expulsions upended decades of asylum laws, including protections for children, and serve white nationalist goals of blocking U.S. borders to marginalized peoples.

By CBP’s own numbers, over 420,000 individuals, including thousands of children, have been picked up by border patrol, held without due process without meaningful access to counsel, and forcibly put on a plane or dropped off a port of entry without having their day in court. Since President Biden took office he has continued the practice and over 200,000 immigrants have been expelled under his administration.

The results of expulsions are deadly and traumatizing, with families being sent to harm’s way and many children forced to cross the border unaccompanied without parents. President Biden has very clearly failed and must stop sending humans to harm's way. 

As the spread of COVID-19 persists in detention facilities and surrounding communities, President Biden is still detaining 15,830 people in long-term ICE facilities, and shorter-term CBP facilities remain the primary mechanism for processing newcomers. ICE under Biden continues to imprison people in unhygienic, crowded, and medically negligent facilities; is transferring individuals - and COVID-19 - haphazardly across detention centers; and has yet to vaccinate people in their custody. 

As was the case under President Trump, immigration detention is optional. President Biden is choosing not to exercise his authority to provide relief to thousands of families who know their loved ones can better navigate their civil immigration case from the safety of their own home, not behind bars.

Instead of closing facilities that imprison families with children, moreover, Biden and his administration have deceivingly tried to re-brand two of them as “reception centers.” And though Biden issued an executive order phasing out contracts with private prison companies, it was limited to the Department of Justice and did not include ICE facilities. 

For failing to end immigration detention and stop the harm that ICE and CBP continue to inflict on people in their custody, President Biden receives a failing grade.

President Biden made a splash with his February 2nd executive order announcing the establishment of an interagency task force to reunite children separated from their parents at the US-Mexico border during the Trump administration’s tenure, but was it enough? As of today, children are still separated from trusted relatives and continue to fill makeshift warehouses, extending the US legacy for #KidsInCages.

Despite the Biden administration’s big talk on caring about what happens to these migrant children, the administration has further reinforced family separation by proxy, structuring a ‘Sophie’s Choice’ scenario for refugee families expelled by continued Trump era Title 42 provisions that prevent families from coming into the country safe and together. The rule has forced parents to separate from their children after being stranded in the most dangerous areas of Mexico and has been the most talked about immigration topic that both conservative and moderate leaders have seized on to rationalize more funding for detention and border militarization. 

President Biden campaigned on increasing refugee numbers, but flinched as president when acute criticism from both moderates and conservatives alike argued that the number of unauthorized crossings at the border called for the cap to remain at the lowest it’s ever been, 15,000.  After a strong reaction from Human Rights organizations, the Biden administration relented to a commitment for expanded numbers.

Nevertheless, the federal government isn’t obligated to hit any cap set; the bigger confusion is that those who seek asylum and those who are qualifiable refugees come from different categories; lumped together as the same. Border Lines said it best, “the refugee and asylum programs are often conflated and have identical general criteria, [but] they are actually separate programs that operate with their own distinct staffs and government infrastructure. The key distinction is that the refugee program is designed to process people abroad,” while there is no cap for those who would seek asylum once on US territory.

Though Biden’s administration issued a 100-day moratorium on deportations, it was blocked by a lawsuit from Texas Attorney General Ken Paxton. Since, Biden has failed to use tools not blocked by the court, like cancelling individual deportations, stopping expulsions at the border, and ceasing to pursue people for deportation.

United We Dream estimates he has now deported over 302,000 people. Similarly, while DHS leadership issued guidelines on Biden’s first day in office to limit enforcement and removal priorities, a February 18 memo from ICE leadership provided updated guidelines broadening those priorities and “putting many more people at risk of detention and deportation.” These expanded guidelines use contact with the racist criminal justice system to further criminalize Black and people of color communities under the guise and false narratives of maintaining public safety and national security. 

For failing to fulfill promises and continuing to rely on racist and punitive frameworks, President Biden receives a failing grade.

Biden’s signature U.S. Citizenship Act and his support for the American Dream and Promise Act and the Farm Workforce Modernization Act are an exciting opportunity to win much needed and long awaited relief for millions of immigrants.

But these bills use past contact with the racist criminal legal system to exclude many Black and Latinx people from legalization a path to Citizenship.

These so-called "criminal" bars would make people who have been convicted of either two or three misdemeanors ineligible for legal status. The Dream and Promise Act goes further, adding a second layer of criminalization that will exclude Black and brown immigrants who have been accused of gang involvement.

On top of that, President Biden’s failure to reform the filibuster means these legalization bills have close to zero chances of passing the US Senate. Without action to reform the filibuster, the president’s support for legalization and a roadmap to citizenship is little more than virtue signaling.