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EL PASO, Texas — In a campaign visit to the Arizona–Mexico border in September, Vice President Kamala Harris promised to institute “more severe criminal charges” for people who attempt to cross the border without adequate paperwork, touting her record as a prosecutor. Five years ago, while campaigning for president, Harris advocated for dropping those charges altogether.
It was a dramatic departure, but Harris is not the only Democrat who has flip-flopped on immigration policy over the past several years. Since January 2021, over six million people, the majority from Latin America, have come to the United States over the southern land border, most of them with intentions to seek asylum, making migration a hot-button political issue. In their attempt to find a message that resonates with the American public, Democrats have forced hundreds of thousands of migrants into potentially deadly situations.
Gerardo Talavera, director of the Casa Refugiados shelter for refugees in Mexico City, a UN-affiliated organization, says the shift in policy began with the Summit of the Americas conference in Los Angeles in 2022, at which the Biden administration voiced their intentions to have other countries, namely Mexico and in Central America, lay down the law, trapping migrants with physical and legal barriers as they travel north, so fewer would reach the U.S. border. In return, the U.S. would provide financial aid and surveillance equipment. Since then, Talavera says, policy decisions from Washington have become unpredictable, leaving the aid community with tight pockets and nervous heads.
Most of these laws rely on Mexico to temporarily take in refugees waiting to cross into the U.S. The Mexican National Migration Institute (INM), the primary department tasked with enforcing immigration law in Mexico, has faced repeated and credible accusations of widespread extortion and collusion with organized crime. In March 2023, nearly 40 migrants died in a fire in an INM detention center; those who were left to burn were the individuals unable to pay a clandestine fine of $200 to be released from the facility.
From 2021 to 2023, the Biden administration kept in place Title 42, a Trump-era law that allowed officials to deport migrants nearly 3 million times back into Mexico without giving them the right to ask for asylum. This past June, President Joe Biden signed an executive order that would replicate the law, but with further restrictions, effectively shuttering the border to all refugees, unless they apply for a limited number of appointments through a faulty smartphone app. In May, Amnesty International said the app violates the rights of migrants, turning the legal asylum process into a “lottery system based on chance.”
There are also stricter consequences than the Trump-era version: Any asylum-seeker who crosses a second time could face up to five years in prison. In September, Biden signed a second executive order in the hopes of protecting these limits to the number of people who can seek asylum. That same week, while visiting the border, Harris promised further restrictions.
Already, Talavera says, “The camps, the shelters, all of the places where people concentrate who are in transit [in Mexico], are almost always super full, to untenable levels.”
Jamie Rodríguez, a mother of three young children from Venezuela, is just now contending with these new rules. She and her family have traveled for six months and have run out of money at every turn. After reaching the border wall in Juárez, they sit under a small crop of trees next to the Rio Grande, delirious from the afternoon heat. Soldiers from the Texas National Guard unleashed tear-gas on the family when they tried to cross the river in the morning, after informing them that they could not ask for asylum at the wall anymore.
The severity of their situation was not going to be enough to warrant mercy in this new reality: They would need to wait in line.
The news is sinking in that they’ll be deported should they cross the river, but Rodríguez and her husband are too dizzy to make a coherent decision. The Mexican Red Cross arrives to hand out water bottles and ham sandwiches to the children, who draw pictures with sticks in the dust. Under the new system, implemented through Biden’s executive order in June, Rodríguez and her family will need to find a safe place to live in Mexico (if they can figure out how to come up with the money), and wait up to a year for an appointment on the CBPOne app, which will eventually allow them to make their case to Border Patrol agents over a period of several hours. If deemed worthy of protection, the family will be allowed to enter the United States, with a court date set for an asylum hearing.
In a tired, tentative voice, Rodríguez admits the family is considering attempting to get over the wall, or find a place to slip through, once night falls, but the plan is untenable. They have no ladder, and would need to walk for miles to find a spot where the bars are broken. Cartels, their power bloated by increased demand for smuggling under these new asylum restrictions, patrol the Mexican side of the wall, promising violence should any migrant attempt to cross the border without paying several thousand dollars per head. Even if they succeeded in breaching the barrier unscathed, the family would more likely than not be captured by U.S. officials and deported back to Mexico.
Still, Rodríguez has not let her mind fully contend with the reality of her situation just yet. “I don’t know,” she says, her voice suddenly small and distant. “What’s happening is they’re not letting us, they’re not letting us.” She sits on her jacket on the ground, awaiting her fate.
Despite recognition from the president and vice president that the vast majority of asylum seekers are fleeing real threats to their survival, like natural disasters, extreme poverty, and organized crime in their home countries, the Biden administration has openly advocated since 2021 for putting as many measures in place as possible to keep the desperate from reaching the border. The 2024 official Democratic Party platform credits Biden with taking “decisive action to secure our border through executive actions that have significantly restricted eligibility for asylum at the border and created innovative legal pathways to the U.S. that, when coupled with strong enforcement, have decreased illegal border crossings.” The agenda further calls for “Congress to strengthen requirements for valid asylum claims.”
Under the current protocols, if a migrant does not meet the basic requirements to enter the asylum process, as displayed in an interview that tests their level of “credible fear,” most are returned immediately to Mexican custody. Over the past year, thousands of these “returned migrants” have been shipped to cities in southern Mexico, where they languish with no means to get back to the border or to return home.
Democrats’ stances are still mild in comparison to former President Donald Trump’s characterization of asylum-seekers as “animals” coming to “invade” the nation, “poisoning the blood of our country.” He has campaigned on a pledge to lead the “the largest deportation operation in the history of our country.”
Analysts like Adam Isacson, director for defense oversight at the Washington Office on Latin America, suggest Democratic leaders are simply following the school of fish, as Americans have become slowly influenced by Trumpian talking points on the border, bolstered by images in the press of large numbers of asylum-seekers rushing to the wall. News articles also often mischaracterize the asylum process as “illegal border crossings” or “arrests,” creating a perception of criminality over what is a legal right to seek protection under both United States and international law.
These arguments insist that refugees, often by some nebulous means, are threatening the stability of the nation, that the border is in crisis and must be “secured,” and that this is a tangible goal that could be carried out, but is not being handled with sufficient gusto by the current administration. Central to the rhetoric is a perception of finite resources: the idea that if the federal government is providing assistance to foreigners in need, they cannot possibly also provide that same care to American citizens. In a Reuters/Ipsos poll from May, 45 percent of respondents agreed with the statement that “immigration is making life harder for native-born Americans.” In recent polling of voters across the ideological spectrum, Republicans were rated higher on the issue of immigration and the border.
Trump claimed during the presidential debate against Harris that migrants are “taking over our schools, our hospitals, and they’re going to be taking over Social Security.” He asserted they are “destroying all of our medical programs.” His running mate, J.D. Vance, has similarly claimed that immigrants are bankrupting rural hospitals.
None of this is true. But Democrats have not offered any real rebuttals to these ideas, Isacson says, other than occasional mentions of the contributions immigrants have made to the American economy and society throughout the nation’s history, and promises to bolster pathways to citizenship for undocumented immigrants who have lived in the U.S. for decades. The lives of people seeking asylum are not a priority.
Democrats’ shift in rhetoric mirrors their policies, Isacson says, which have increasingly abandoned asylum-seekers to Mexico’s jurisdiction. Over the past four years, the Biden administration has adopted various means previously initiated in the Trump era, in order to lower the number of migrants crossing into the U.S. Biden has championed these policies even when they mean thousands of people are left in dangerous situations where they are at risk of death, from exhaustion of money and resources, or from tangles with organized crime groups that take advantage of the vulnerable. “He [Biden] didn’t think to defend the idea of immigration,” Isacson said.
Despite enacting these restrictions to asylum ostensibly for political reasons, Isacson and other analysts are surprised at how little Harris and other Democrats take credit for the results of their immigration policies. Since the asylum ban was enacted in June, migrant encounters at the border have dropped by half.
The hundreds of thousands of people who would otherwise have crossed into the U.S. already are now stuck waiting in Mexico, vulnerable to rising rates of homelessness, kidnapping for ransom, and extortion, but they are not in the United States, which was Biden’s primary goal. Still, the current number of migrants trapped in Mexico under Biden administration policies is nowhere near the millions of immigrants whom Trump plans to deport if he is reelected.
“The mass deportation that Trump is talking about would cost the economy $300 billion — why aren’t they [the Democrats] talking about that?” Isacson said.
Isacson is not the only one to suggest Democrats have folded their cards. In December 2023, the Congressional Hispanic Caucus complained when the White House negotiated an immigration bill with Republicans in Congress without seeking their input. The bill included numerous Republican wish-list items, like measures to make it more difficult to seek asylum and hiring more Border Patrol agents — ideas that Democrats had previously stood against. For immigration analysts, this moment marked a turning point in an ongoing sea change.
Kamala Harris is now championing this bill — which was ultimately blocked by Republicans in the Senate — as the core piece of her agenda on immigration, and Biden called it “the most fair, humane reforms in our immigration system in a long time”
The bill includes a measure to build new detention centers for migrants along the border. Since the Trump administration, these types of facilities have faced accusations of neglect and abuse, assault, and even unwanted medical procedures.
But the border is not the only place migrants are detained. This month, the American Civil Liberties Union, in conjunction with the International Refugee Assistance Project, sued the Biden administration over a request for information on the detention of migrants at the U.S. military base in Guantánamo Bay. Leaked documents suggest hundreds if not thousands of people — the majority of them Cubans and Haitians fleeing violence and political instability, and some of them young children — have been held at the base in Cuba, many of them for months or up to a year, enduring numerous human rights abuses without access to a legal system that would allow them to leave.
Omar Jadwat, director of the Immigrants’ Rights Project at the ACLU, said the Biden administration has obstructed the public records request at every turn; in a particularly petty exchange that lasted months, the government opposed the ACLU’s characterization of the goings-on at Guantánamo Bay as “detention” of migrants. “Obviously, talking about ‘detaining’ people, you then get into questions about whether you have the authority to do it, and what standards should apply when you’re doing it,” Jadwat said. “This is not accidental.”
Jadwat calls Biden administration policy on immigration a “significant and disappointing reversal.”
Harris also supports supplementing the ranks of the Border Patrol, in an attempt to control fentanyl trafficking. However, Border Patrol operations are increasingly interfering in the lives of civilians living at far distances from the border itself. The Border Patrol has faced constant accusations of racial profiling, and its officers are not required to present a warrant to search someone, no matter their legal status in the country. Since 2010, over a hundred people have been killed in car chases, many of them innocent civilians, as the Border Patrol attempts to catch smugglers. Disciplinary responses to agents driving at speeds over 100 miles per hour consist primarily of stern words and slaps on the wrist.
In recent months, Harris has even softened her opposition to a border wall, a mantra synonymous with Trump’s 2016 presidential campaign. In a CNN town hall on Oct. 23, she failed to answer whether she supported continuing construction on a wall, while noting derisively that Trump only completed 2 percent of the planned infrastructure. During the Trump years, sections of the wall were built, and have proven either ineffective, or unnecessarily dangerous: In Tijuana, the wall has led to 33 deaths over the past four years, as migrants are flung against the metal in their attempt to swim around it.
In a speech at the Ellipse near the White House on Tuesday, at an event meant to serve as the closing argument of her campaign, Harris said that if she is elected president, “we will quickly remove those who arrive here unlawfully, prosecute the cartels, and give Border Patrol the support they so desperately need.”
Despite a feeling of betrayal, watching asylum seekers wilt in unsustainable conditions, aid workers like Talavera are still, above all else, hoping to avoid a second Trump presidency, which could mean the end of any amnesty for refugees at all.
“If Trump wins, we might lose our funding altogether,” he said.
