Biden promised to establish a fair, orderly, and humane immigration system. Has he done it?

Paul Schmidt, a former chairman of the Board of Immigration Appeals, doesn’t think so. He claims that Biden could have established due process and the rule of law at the border and expanded refugee programs in potential sending countries but he didn’t, “preferring instead to use modified versions of ‘proven to fail deterrence-only programs’ administered largely by Trump-era holdovers and other bureaucrats insensitive to the rights, needs, and multiple motivations of asylum seekers.”

Predictably, nobody is pleased.

The problems Schmidt describes are not limited to the border and the treatment of asylum seekers. They are reflected in many of Biden’s other immigration measures too.

Biden’s refugee program. He raised the fiscal 2021 refugee admissions cap from 15,000 to 62,500, but only succeeded in admitting 11,411refugees by the end of the fiscal year — the lowest number in the history of the program.

100-day deportation moratorium. Biden established a 100-day moratorium, as promised. But a federal judge issued an injunction to block the moratorium because it likely violates INA section 1231(a)(1)(A), which provides that an alien generally “shall” be removed within 90 days of a final removal order.

Immigration court backlog crisis. When Biden took office, the immigration court had a backlog of upwards of 1.29 million cases. As of the end of November 2021, the immigration court backlog stood at 1.56 million cases, with an average wait for a hearing of 905 days. It has received 143,803 new cases so far in fiscal 2022, and it has only completed 43,156 cases during that period.

More than 40 percent of the asylum applications filed since October 2000 are still pending. Approximately 1.6 million applications were filed during that period, and hearings have not been held yet on 667,229 of them. Current wait times for cases in the asylum backlog average 1,621 days, which is nearly four and a half years.

Remain in Mexico. Trump created this program pursuant to his authority under INA section 235(b)(2)(C); it requires aliens who cross the land border with Mexico illegally or seek admission without proper documentation to return to Mexico and wait outside of the United States pending removal proceedings before an immigration judge.

Biden’s DHS secretaryterminated this program with a memorandum.

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Published originally on The Hill.

Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow him at