Biden’s Immigration Saga

Happy Tuesday! Declan apparently fell asleep at the keyboard overnight, so when your morning editors went to give today’s TMD a final scrub, this is all he had here for this morning’s opener: “It’s so nice having baseball back, even if it’s”

We’re not sure where he was going with that sentiment, but if history is any guide it was probably some Chicago sports reference. Unfortunately, we won’t know until tomorrow, but as a placeholder we offer you instead this assessment of the Windy city’s NFL franchise: “What went wrong for the Chicago Bears this historically bad season.”

Quick Hits: Today’s Top Stories

• The Biden administration offered an equivocal response on Monday when asked about Sunday’s Wall Street Journal report indicating the Energy Department has shifted its assessment of COVID-19’s origins to conclude the virus most likely originated from a laboratory leak. “The intelligence community and the rest of the government is still looking at this,” White House spokesman John Kirby said. “There’s not been a definitive conclusion.” Officially, the intelligence community remains split on the virus’ provenance: The FBI and DOE believe it came from a lab, four other agencies and a national intelligence panel believe it was the result of natural transmission, and two additional agencies are still undecided.
• The Canadian government announced yesterday that, starting today, it would prohibit officials and staffers from having or downloading TikTok on any government-issued phones or devices, as the app presents “an unacceptable level of risk to privacy and security.” The move comes days after the European Commission made a similar announcement. 
• A second batch of documents supporting Dominion Voting System’s motion for summary judgment in its defamation lawsuit against Fox News was released on Monday, highlighting deposition comments made by Rupert Murdoch—chair of Fox News’ parent company—that seemed to acknowledge several Fox commentators promoted false claims about the 2020 election, and that he could have stopped them if he wanted to. “I would have liked us to be stronger in denouncing it in hindsight,” Murdoch said, acknowledging that Fox was “uniquely positioned to state the message that the election was not stolen.”
• Democratic Rep. Elissa Slotkin of Michigan formally announced Monday she is running for the U.S. Senate seat being vacated by the retiring Democratic Sen. Debbie Stabenow. Reps. Bill Huizinga and Lisa McClain—and former Rep. Peter Meijer—have been discussed as possible candidates on the Republican side, but have not officially jumped into the fray.

The Return of the “Transit Ban” 

Every morning at 9 a.m. ET, migrants staying in shelters, hotels, and encampments just south of  the U.S.-Mexico border unlock their phones and compete for appointment slots released via a border control app, fighting error messages and app crashes in a process some immigration advocates have taken to calling Ticketmaster for immigration. Those with faster WiFi have better luck, as do people traveling alone. Some families, unable to snag appointments for everyone, have split up to cross the border and apply for asylum separately. 

A glitchy border app is just one of the new hurdles migrants face as President Joe Biden changes immigration processes to prepare for the end in May of Title 42—a Trump-era policy allowing officials to quickly expel most migrants—when the public health emergency it relies on expires. The latest update—a proposed rule published last week and scheduled to last two years once enacted—mirrors a Trump-era policy by requiring most asylum applicants to prove they’ve been denied refuge elsewhere.

The White House is expecting a surge in asylum seekers at the southwestern border when Title 42 ends—as many as 13,000 crossing attempts per day. To prepare, as we reported in January, the Biden administration has in recent months expanded humanitarian parole programs, offering two-year work authorizations for up to 30,000 migrants per month from Venezuela, Cuba, Nicaragua, and Haiti who meet certain requirements. The administration has also piloted the border appointments app with these migrants and plans to expand its use as Title 42 ends. As of February 22, Customs and Border Patrol told The Dispatch, the app had received 200,000 applications for appointments and scheduled 35,000.

Last week’s proposed rule revealed early details of the rest of the administration’s plan for the end of Title 42—including the requirement that asylum seekers request refuge in a third country before coming to the United States. If the rule takes effect in May as planned, migrants who traveled through other countries en route to the U.S. will have to prove they were denied refuge in one of them or they’ll be presumed ineligible for asylum. 

The goal is to incentivize asylum seekers to find safety elsewhere if possible, but the policy could put extra strain on other countries’ asylum processing. The administration’s proposed rule has already inspired Mexican officials to reconsider streamlining asylum adjudications for fear of attracting even more migrants hoping a Mexican rejection will bolster their claim in the U.S. And, as Harvest reported last week, it’s not clear how much cooperation the U.S. will get from Mexico and neighboring countries, which will affect whether ineligible migrants get expelled into Mexico or flown home.

Pro-immigration activists immediately pointed out similarities between this proposal and the “transit ban” rolled out by the Trump administration. “This rule reaches into the dustbin of history to resurrect one of the most harmful and illegal anti-asylum policies of the Trump administration,” said Krish O’Mara Vignarajah, president of Lutheran Immigration & Refugee Service and a former Obama administration official.

The similarities to the Trump-era rule were apparently enough to wring faint praise even from committed Biden administration detractors. “A small step in the right direction,” Rep. Jim Jordan told NBC News last week. “God bless them for finally doing something worthwhile, because for two years they intentionally did things that made it the terrible situation.”

Some Democrats have defended the policy, including Texas Rep. Henry Cuellar, a moderate from a border district who has criticized previous Biden administration immigration policies. He pushed back on comparisons to the Trump rule, noting that under the Biden administration’s version, migrants who can’t prove they were denied asylum elsewhere aren’t banned from asylum but instead face a “rebuttable presumption” of ineligibility which still gives them a chance to establish their asylum claim—albeit with more obstacles. “I know some of the immigration groups are saying, ‘Oh, it’s a Trump-like rule.’ No, Trump wanted to ban people from coming in,” Cuellar told NPR’s All Things Considered Sunday. “People can still ask for asylum to come in.”

In fact, groups seeking to reduce migrant flows are alarmed by the rule’s carve-outs, which apply to unaccompanied minors and people who can demonstrate they’re facing an acute medical emergency, “severe” human trafficking, an “imminent and extreme threat” to life or safety, and other “exceptionally compelling circumstances.” The various exceptions “threaten to swallow the whole rule,” argued Elizabeth Jacobs, director of regulatory affairs and policy at the Center for Immigration Studies. “A regulation that only limits asylum eligibility to a relatively small portion of border-crossers will not be enough to close loopholes in the broken system.”

Immigration watchers say the effect of the rule will depend on how it’s applied. How many processing appointments will border officials offer through the app? How widely will officials approve exceptions, and how many migrants will overcome “rebuttable” ineligibility? “I imagine that the appointments will be somewhat limited and that a lot of people will still be coming between ports of entry or without appointment, so I imagine a lot of people will face that rebuttable presumption,” said Julia Gelatt, a senior policy analyst at the Migration Policy Institute [MPI]. “What percent of them are able to get around that presumption is the big question.”

But those implementation questions will be moot if the Biden rule–like the Trump version that came before it—sinks in court. “We successfully sued to stop the Trump asylum bans and will sue again if the Biden administration enacts these anti-asylum rules,” Lee Gelernt, an immigration rights attorney at the American Civil Liberties Union, told Politico. And the Biden administration is likely facing an uphill battle defending the policy. “Our laws say that someone can apply for asylum, no matter where they are on U.S. soil, no matter whether they’re at a legal crossing point or not,” MPI’s Gelatt told The Dispatch. “That makes it, I think, a difficult path for this policy for the Biden administration.”

Worth Your Time

• Reporting from Moscow, Kyiv, and Washington, Financial Times journalists Max Seddon, Christopher Miller, and Felicia Schwartz attempt to tell the definitive story of how Vladimir Putin blundered into Ukraine a year ago—and then doubled down. “The idea was never for hundreds of thousands of people to die. It’s all gone horribly wrong,” a former senior Russian official told them. “He tells people close to him, ‘It turns out we were completely unprepared. The army is a mess. Our industry is a mess. But it’s good that we found out about it this way, rather than when NATO invades us.’” Speaking to six longtime Putin confidants as well as top Ukrainian and American officials, the trio paint a picture of a dysfunctional Kremlin full of people afraid to say the emperor has no clothes. “During the height of the pandemic,” they write, “Putin was largely cut off from comparatively liberal, western-minded confidants who had previously had his ear. Instead he spent the first few months in his residence at Valdai, a bucolic town on a lake in northern Russia, essentially on lockdown with [his friend Yuri] Kovalchuk, who inspired Putin to think of his historic mission to assert Russia’s greatness, much as Peter the Great had.”
• In a piece for Granta Magazine, Marina Benjamin—a former professional gambler—reflects on why she spent several years touring the world and playing blackjack. “Gamblers get into trouble, not least vortices of debt, because they cannot help pitting themselves against fate. They know that luck is capricious, evasive, flighty, which is part of its dangerous appeal; but they’re also convinced that they can somehow divine it,” she writes. “Those who study the phenomenon of loss aversion point out that what someone is willing to lose is always related to a reference point, and usually that reference point is the status quo: most people will put up with some degree of loss if it doesn’t upset their world too much. But if the point of reference is less stable the logic shifts. If you believe, as my father did, that you were born to have riches beyond compare then you will risk much more to lessen the gap between reality and expectation. If like me, however, the bar of your expectations is set differently, calibrated for reality, then your approach to risk is more calculated.”

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Toeing the Company Line

• It’s Tuesday, which means Dispatch Live (🔒) returns tonight at 8 p.m. ET/5 p.m. PT! Join Jonah and Steve for some thoughts on the Fox News-Dominion lawsuit, and a broader discussion with other Dispatch writers and editors of the news of the week. As always, there will be plenty of time for viewer questions. Keep an eye out for an email later today with more information on how to tune in.
• In the newsletters: Kevin takes a critical look(🔒) at the concept of “cultural Christianity,” Nick unpacks (🔒) new Ukraine conspiracies from the populist right, and Andrew, David M. Drucker, and Audrey profile Vivek Ramaswamy as he enters the GOP presidential fray.
• On the podcasts: Sarah and David are joined on today’s episode of Advisory Opinions by Judge Neomi Rao for a conversation about circuit decisions, dealing with rejection, and how to make it as a young law clerk.
• On the site: Price and Drucker both set their sights on Michigan—with Price covering proposed tax cuts by the state’s Republican minority and Drucker reporting on GOP infighting in the important Midwestern battleground. Plus, John Hart makes a case for why Reaganism could prevail in the 2024 presidential election.

Let Us Know

More than halfway into Biden’s presidency, how do you think his administration has handled the border crisis? Do you expect immigration policy to be an important consideration for voters going into 2024?