We’re excited to share the first conversation in our WITHpod 2024: The Stakes series. For the first time since 1892, we have an election in which both candidates have presidential records, which provides a unique opportunity to cut through messaging and rhetoric and culture war flotsam and actually take a hard look at what each man has actually done as president. On The Stakes, WITHPod will choose specific areas of policy -- immigration, taxes, climate -- and talk to an expert about the two candidates’ records on the topic. We’re starting with one of the highest salience and most complex policy areas: immigration. Aaron Reichlin-Melnick, policy director at the American Immigration Council, joins to unpack immigration policies under Trump vs. Biden, border enforcement, the state of the asylum system and more.
Note: This is a rough transcript — please excuse any typos.
Chris Hayes: Hello and welcome to “Why Is This Happening?” with me, your host, Chris Hayes.
Well, the general election is set. Barring some unforeseen circumstances, it’s going to be Joe Biden and Donald Trump. And for the first time in 140 or 150 years, the two men running against each other, each have been president and each have actual records. And one of the things that drives me a little crazy about the way the campaign is framed and covered is the fact that it seems to ignore that fact.
And one thing I’ve noticed about the vortex Donald Trump’s sort of attentional vortex is that the craziness around him can obscure some of the more basic meat and potatoes questions of like, where is Donald Trump on education policy? Where has Joe Biden been on education policy? What have they done with the Interior Department under Joe Biden? And how would that Interior Department look differently under Donald Trump? All these just very basic meat and potatoes questions about the brass tax of governing.
So, today is the inaugural episode of what we’re calling, “Why Is This Happening? 2024: The Stakes,” where we are going to, in a semi-regular franchise, we’re going to look at areas of policy. And in a way that really we’re trying to be as sort of analytical and descriptive as possible, not polemical. Like where are these two different candidates on these policies? Where have they been? What did they actually do in office?
Because you don’t just have to check their campaign websites, you don’t just have to listen to speeches, there’s actual records. And so we’re going to commit ourselves for the duration of this campaign to really taking the time to sit down with an expert every week and just walk through where the two different candidates have been, what they have done, what their records are on these crucial areas of policy.
Today, we’re going to start with probably one of the most controversial and one of the highest salient areas, which is immigration. And of course, immigration has been front of mind for a lot of voters. It has been particularly the focus of a lot of Republican rhetoric, but of course there was a big border bill that just fell apart. And so we’re just going to take a step back and say, what did immigration policy look like under Donald Trump? What does it look like under Joe Biden? What are the differences? How can people make up a decision about which of those two visions they think they like.
Joining me today is Aaron Reichlin-Melnick. He’s the Policy Director of the American Immigration Council. He is an immigration wonk to end all immigration wonks, as far as I can tell, in an area of policy that I have to say is extremely complex, extremely weedsy. It strains my ability, honestly, to understand. Often, I find myself at the sort of the border of my ability to kind of synthesize. Aaron is an incredibly important resource for me in that respect. So Aaron, welcome to the program.
Aaron Reichlin-Melnick: Well, thanks for having me.
Chris Hayes: Obviously, you’re coming from the think tank that has, you know, its own sort of worldview and vision of sort of normatively what the best immigration policy is. But you’re also just extremely attentive to like what is happening, which by the way is no small thing, because a lot of times people get that wrong, right? I mean I see you pointing out a lot of basic mistakes in even how people understand what’s happening with immigration.
Aaron Reichlin-Melnick: Yeah, I mean immigration law is famously second in complexity only to tax law. And that’s just immigration law. When you actually look at the ways in which that law interacts with reality and how people function in the world and interact with the system, it just becomes a mess. And so actually understanding what is going on is not easy because there’s a lot of motivated reasoning. There’s a lot of government press releases that say one thing, but when you actually look at the reality, it’s a little different and it’s a complex field to say the least.
Chris Hayes: So, I want to start, we’re literally just going to divide this in half. So, we’re going to start with immigration policy under Donald Trump, 2017 through 2021. And I want to start because there’s so much emphasis on the border. I don’t want to start with the border. So, I want to just start in broad strokes. The president has a fair amount of latitude on immigration policy. Quite a bit in fact.
It’s an area where they’re sort of some of their highest level of autonomy. Although, the courts will have things to say about that. Let’s just start talking about basically like legal immigration, just the standard, how many visas we give out, who we give them out to. That’s something that presidents have some control over, some input on. Congress also obviously gets a say in that. How would you describe, sort of broadly, the Trump administration immigration policy on legal immigration?
Aaron Reichlin-Melnick: Yeah, the Trump administration was a restrictionist administration. Their goal was to slash immigration to the United States. You would see President Trump himself at the time pushing for, you know, why don’t we have more Norwegians here? Why are we taking Haitians? And so they tried to reshape the legal immigration system to act a little bit more like the early 20th century United States immigration system, from the 1920s through the 1960s, when we had national origin quotas and an immigration system explicitly designed to allow some desirable immigrants and restrict the undesirable immigrants.
At the time, in the 1920s, it was really racial. The Trump administration that was part of it, but it was also aimed at keeping out lower income immigrants and really saying, we only want a few immigrants coming here. And if they’re going to come here, they better be from Europe and/or educated.
Chris Hayes: And obviously Congress changes that and the president signs in law, Lyndon Baines Johnson, in the 1960s with a watershed immigration law that totally gets rid of the kind of national origin and highly racialized quotas and categories that had, you know, dictated immigration policy for about 40 years. But again, this is just at a descriptive level, I think Stephen Miller and many of the people that are around President Trump really view that previous period, the ‘20s to ‘60s as kind of a more ideal model.
That’s actually what they want to get back to, less immigration, more control over where people are coming from as opposed to like family reunification. And essentially selecting for people from countries, wealthy countries and particularly countries that they say have a cultural linguistic affinity, which is often people that are, in the racial sense of the word, “white.”
Aaron Reichlin-Melnick: Yeah and you’d find Jeff Sessions, for example, who had a lot of a role in the Trump administration immigration policy, having openly endorsed the 1924 Act, which did set up these racial national origin quotas. And you know, this is one of those laws where the 1924 quota system where calling it racist is not an opinion. It’s fact. They were very open about keeping what they call the racial stock of the United States a certain way through this law.
Now, of course, even if you go into the 1960s, the 1965 Act, one of the reasons we have a family-based immigration system is because that too was based in a racial belief is they said, you know, that they got a number of conservatives at the time to support the law, because they thought, well, okay, we’ll keep America white if we have a family-based immigration system, because most immigrants who’d been coming over the last decades were white immigrants, Irish, Italian. That was sort of the last great wave of immigration in the early 20th century was from countries, peoples which today, we would call white. Back then that racial categories were a little bit more mixed --
Chris Hayes: Yeah.
Aaron Reichlin-Melnick: -- to put it simply, but that isn’t how it worked out, of course. And I think as the Trump administration found out, you know, if you have an immigration system that is aiming at people from Europe, well, a lot of Europeans are pretty happy to stay where they are. And people tend to come to the United States when the United States is a great deal better economically, safety-wise and everything. And less so if you’re coming from Finland or Norway, there’s not a huge demand for millions of people --
Chris Hayes: Right.
Aaron Reichlin-Melnick: -- to immigrate from Central Europe to the United States.
Chris Hayes: So, did the Trump administration succeed in reducing the inflows of legal immigrants, like the amount of visas that folks were able to get through the various legal means?
Aaron Reichlin-Melnick: Yes, absolutely. Visa issuance fell every single year in the Trump administration.
Chris Hayes: Wow.
Aaron Reichlin-Melnick: Now it cratered in 2020 because of the COVID-19 pandemic, which shuttered consulates around the world. But even setting that aside, there was a steep drop in immigration through the legal immigration system. He also hollowed it out. There was a hiring freeze at U.S. Citizenship and Immigration Services. That meant when President Biden took office, there was about a thousand fewer adjudicators than they needed to get things back on track.
And he also banned immigration, wide swaths of legal immigration through a wide variety of different means. There’s, of course the infamous Muslim ban, transit ban, depending on how you want to call it, which applied to legal immigration from a wide variety of Muslim majority countries, plus Venezuela and North Korea. And then, you also had lesser known. He had a number of other bans that were blocked in court before they could go into effect.
But those were shaky legal decisions and the appellate courts and the Supreme Court could have well ruled otherwise, because he used the Muslim ban authority, INA 212(f). At one point, he blocked all legal immigration from people who didn’t have health insurance. So that meant that if you were a lower income individual and you didn’t have, it was a specific kind of health insurance too. So, there was essentially a wealth test imposed for people coming to the United States.
During the COVID-19 pandemic, he actually blocked all legal immigration, allegedly, on economic recovery grounds. So, there was a period where even if the system had been functioning, which it kind of wasn’t because of COVID consulate closures, where we would have seen a huge drop in legal immigration. And that did get blocked in court and he also blocked the Diversity Visa program. You know, by the end in the 2020s, he was throwing out travel bans left and right aiming not at migrants, at the legal immigration system.
Chris Hayes: And there’s also refugees are another part of the legal immigration system. That’s different than asylum seekers because they are in their home country where they apply and they go through a very long and attenuated process of interviews and vetting before they come over. The president has a lot of control over that number. That was an explicit campaign promise in 2016 to reduce the number of refugees. And did he make good on that promise?
Aaron Reichlin-Melnick: Yeah. When he took office, the Obama administration’s Presidential Determination from the previous year had been 100,000 refugees. We will admit 100,000 refugees in a year. Trump slashed that immediately, every single year after that. When it came time to set the refugee level, he slashed it again. By 2020, he had dropped it down to 15,000 total. Now, this not only reduced the number of refugees.
Chris Hayes: Wow.
Aaron Reichlin-Melnick: It also meant that when President Biden took office, it took years to rebuild the refugee program because refugee officers had quit en masse. The refugee resettlement organizations, they had to lay off tons and tons of staff.
Chris Hayes: Oh wow.
Aaron Reichlin-Melnick: The funding was down. And so we are just now in the start of 2024 getting back to the level. And I think we are finally about to surpass the level it was when Trump took office and get back to the Obama level, like the 100,000 level. We will hit that this year, but it took three solid years of rebuilding to get us back there.
Chris Hayes: So, the broad strokes of the various means of legal immigration, people that, you know, go through the system and they file and they apply whether it’s, you know, they have a family member or they’re sponsored by a business, there’s visas that are granted, student visas, like all of these different ways that people can come to the United States, right. They explicitly wanted to reduce that.
They also wanted to sort of tip the balance of which countries people were coming from and reduce the amount of people. And they did all those things basically. And they tried to, and probably could have done more, had courts not blocked some of what they did. But in the aggregate, they did do that. They said they would do that and they did do that on legal immigration. It’s a pretty clear story, right?
Aaron Reichlin-Melnick: Yeah and not just using these like ban authorities, they also threw everything at the wall to sort of lower the numbers and using bureaucratic red tape tricks. One of the worst of them was called the No Blank Spaces Policy that they started applying it. So, every form you had to submit to the government for an immigration benefit, there are extraneous extra boxes.
So for example, there’s five boxes to put your children. You know, you put children, child one, child two, child three, child four. So if you have five children, you can fill out all five boxes. If you have one child, you fill out the one and then you leave the rest empty. The Trump administration started mandatorily denying all applications in which people didn’t write N/A in every single --
Chris Hayes: No.
Aaron Reichlin-Melnick: -- irrelevant open box, 100 percent true.
Chris Hayes: No.
Aaron Reichlin-Melnick: They denied people. They’d --
Chris Hayes: I don’t believe that.
Aaron Reichlin-Melnick: -- turn away applications because somebody didn’t put the apartment number because they lived in a house, because they didn’t write N/A in apartment number. And it was this kind of Kafkaesque bureaucracy that they really weaponized, you know. And they said, look, the form instructions say, fill out every applicable box and write N/A in ones that are not applicable. Again, every single little, irrelevant box, if you missed one, they’d reject the entire application and say, sorry, you have to file this again. Go back and file it again. So, it was creating these bureaucratic hurdles. Again not denying for substantive reasons, just denying for pure petty, let’s throw as many pitfalls in the system to just get people.
Chris Hayes: Yes. And all of this in the same direction. We don’t want people coming. We want to keep them out. And if, to the extent that people come in, we want to select those countries. Like, you know, again, the president talked about, you know, Norway and countries like that. He called Haiti a shithole country. Like it was very clear. And again, this was expressed in policy. So, that’s the top line of the legal immigration system.
Let’s talk about the border, which is not, should not be conflated with all unauthorized immigration. Because a lot of people, my understanding, it’s still the case that most people who are unauthorized migrants are overstay visas.
Aaron Reichlin-Melnick: That was true as of a few years ago.
Chris Hayes: It’s no longer, right?
Aaron Reichlin-Melnick: It’s no longer true, yeah.
Chris Hayes: Right. And that’s partly because of how many people are showing up at the border.
Aaron Reichlin-Melnick: Yeah.
Chris Hayes: So, let’s talk about the border. I mean, one of the things that you’ve pointed out is they clearly wanted to keep people out at the border and in some ways --
Aaron Reichlin-Melnick: Yes.
Chris Hayes: -- people will probably remember the Child Separation Policy in which the government was separating children from parents. It was not keeping track of who belonged to who. It was essentially, for lack of a better word, kidnapping these children. Detaining them away from their parents, putting them into group homes through contractors, really grizzly stuff. It caused a national uproar.
They eventually had to walk back this policy, which they denied they were doing. The reason they did that was because they were so at their wits end about stopping the flow of people showing up at the border. What was their approach at the border? And maybe you want to sort of lay the groundwork of what starts before them in 2014 under Barack Obama.
Aaron Reichlin-Melnick: Yeah. I mean basically the goal of the Trump administration was deterrents and specifically deterring families from coming. So, basically starting in around 2013 and 2014, we started seeing more unaccompanied children and families primarily from Honduras, Guatemala and El Salvador coming to the U.S.-Mexico border and seeking asylum. This was a huge shift in migration patterns. For decades, the overwhelming majority of migrants coming across the border were Mexicans, primarily coming here looking for work.
When the Great Recession hit in 2007 and the construction industry essentially collapsed for decades, that demand for labor went down. You had fewer people crossing because of that. And that also coincided simultaneously with a massive growth of border security apparatus, enforcement personnel going on in the Bush administration in the post-9/11 years, you know. The border patrol doubled in size in a 10-year period and quintupled in size in a 15-year period. The 4,000 agents in 1993, up to 21,000 agents by 2011.
So, you have simultaneously a collapse in demand for the kind of labor that you have, undocumented immigrants coming and a huge, in course, in order security. And so in the early, the first term of Obama was actually the quietest the border had been in 30 years. Then 2013, 2014 families started showing up and those posed brand new challenges. Holding children in detention centers, small children in detention centers for months or weeks at a time created an outcry.
The Obama administration created family detention. Eventually a federal judge ruled that a 1997 legal settlement about the treatment of children in immigration detention required that most families be released after 20 days. And so you had in the Obama administration in 2014, in 2015, 2016, you did have families coming and being released into the United States to go into the immigration court system and seek asylum. The Trump administration wanted to stop that.
Chris Hayes: Right. Just to be clear, released with a court date, right?
Aaron Reichlin-Melnick: Yes.
Chris Hayes: They just to go through this. You presented at the border or you’re apprehended. You say you’re seeking asylum. You get put into a process. This is a complicated process, but there’s things called a credible fear interview. And then, you get a court date for sort of further sorting essentially, right?
Aaron Reichlin-Melnick: Yeah. So, I think it’s sometimes, I really like to go to first principles on these. It’s really important to understand as a legal matter when somebody crosses the border and taken into custody, if the United States wants to remove that person, because that person is “removable” is the term in the law. They have violated immigration law. So, there are two ways to do that. You have to get a removal order because it’s a legal process. It’s not just --
Chris Hayes: Yeah.
Aaron Reichlin-Melnick: -- a pure exercise of force. There is a process. It’s set down.
Chris Hayes: There’s a law, yeah.
Aaron Reichlin-Melnick: And there’s two ways to do that. There’s expedited removal which is a law created in 1996, so 30-plus years old, and we have regular removal, which is immigration court. And when you put someone through expedited removal, key to that, that’s the credible fear process. That requires asylum officers. In order to do a credible fear interview as part of this expedited process, you need to have an asylum officer who can carry out the interview. And if you don’t have those asylum officers, because there aren’t enough, then the only other option, because you’ve got one of two options, is to put them straight to immigration court, skipping over the credible fear process entirely and going straight to the immigration court system, where they have a regular removal hearing, where they can apply for asylum.
And if they fail, they get order deported and order removed, so you have these two processes. And Congress thought in 1996, so maybe a few thousand people a year will apply for asylum at the border, so we don’t need to fund the asylum officers.
Chris Hayes: Right.
Aaron Reichlin-Melnick: So, we don’t have that many of them. And so in 2014, when tens of thousands of families showed up in one summer was the first time the system had a huge stress test and it failed it. And the system has been failing the stress test for, you know, the last decade straight.
Chris Hayes: Ever since.
Aaron Reichlin-Melnick: Yes.
Chris Hayes: Yeah.
Aaron Reichlin-Melnick: And yet, instead of fixing that, you know, we just keep doubling down on this. But so basically this is the first time we saw this happening under Obama. Thousands of families started showing up every month. There weren’t enough asylum officers to carry out credible fear interviews. You couldn’t do them fast enough.
And people started getting released and they skipped over that process, again, because you have one of two options, either expedited removal or regular removal. And people started going straight to that, to the immigration court process where, you know, they go to court. If they file an asylum application, a judge will hear their case and decide eventually whether to grant asylum or deny asylum.
Chris Hayes: So, the idea of people going into the sort of normal immigration court system and not getting expedited removal because they’re then released into the country with a court date.
Aaron Reichlin-Melnick: Yeah.
Chris Hayes: And this catch and release notion, which, again, Donald Trump campaigned against in 2016. He pledged to stop this. Again, that requires legal changes because as you said, like it’s a legal process. And if the capacity’s not there, so what did they do about this general set of issues at the border, you know, before COVID basically?
Aaron Reichlin-Melnick: Yeah and you can see how they evolved throughout the course of the term. The family separation started actually within months. There was an initial pilot project. Within weeks, they were discussing family separation.
Chris Hayes: Yeah.
Aaron Reichlin-Melnick: So, this is actually something that the Obama administration had discussed. And so there was already some little policies on there. So when they took office and this was sort of options that had come out there, they seized on it. They said, let’s give this a try. And so they did look at some options for just deliberate separation, where they just said, we’re not even going to give you a reason for it. We’re just going to tear families apart.
I think even that was maybe a little bit too far from them. And so they said, what we’re going to do instead is we’re going to prosecute the parents for illegal entry, so that we’ll punish the parents. So, the idea is then the parents won’t come back. And in the process, that means the children will be separated. They’ll be sent off to Office of Refugee Resettlement.
They’ll be treated as unaccompanied minors and treated differently under a different law. And the parents will be prosecuted and then they basically, you know, it’s like the south bar thing (ph). You know, step one, prosecute parents, question mark, question mark, question mark, reunite them and deport them together.
Chris Hayes: Right.
Aaron Reichlin-Melnick: That’s what sort of they were saying to themselves. But the people inside the agencies were going, what are you doing? You have to figure out. You happen to have a reunification process, you don’t have one. You’re just taking these parents apart, sending the children elsewhere and you don’t even have a tracking system. And in fact, so by the time zero tolerance rolled out in spring of 2018, there were people inside the government who had been raising alarm bells for months about what was happening.
And all they had genuinely was an Excel spreadsheet at the Office of Refugee Resettlement to try to track these things. And then this quickly became an absolute nightmare, 3,300 or so parents separated from their children. And I think there’s some confusion here. What happened is the parents were prosecuted and then oftentimes the parents were deported.
Chris Hayes: Yeah.
Aaron Reichlin-Melnick: So, the children would still be in the U.S. and the parents would be, God knows where. Nobody would know and they had no process at all to reunite families. So, over 5,000 families in total were separated during this time. And it had very little impact on border crossings too.
Chris Hayes: This is the key to me is that their theory of the case was that people are presenting at the southern border not because of desperation and push factors, but because of a perception of how easy it is to get in. And if we change that calculation, if we say it’s nightmarish to get in, it’s so nightmarish that you will risk being separated from your child, that will deter people from coming.
This was explicitly the theory and deterrents didn’t work. And in fact, you know, one of the things that I’ve seen you note is that people showing up the southern border, all the way up until COVID, was still very high. In fact, Donald Trump gave a prime time address at one point from the Oval Office about the crisis of the southern border.
They kept sort of throwing deterrents and the notion of the wall at the problem of people showing up because they didn’t want people showing up. They did not want people applying for asylum. They wanted to stop the flow at the southern border. And it really wasn’t until negotiations with Mexico and then COVID that they were able to kind of turn it off.
Aaron Reichlin-Melnick: Yeah. And so in 2018, they did zero tolerance, that didn’t work. And ironically, I mean it’s very hard to say, to point to one thing and say, this is the cause but family unit arrivals spiked pretty much immediately after Trump publicly renounced family separation. And that is, in part, you know, people have theorized, I think there’s probably some evidence to this.
But it’s hard to say for sure, because everybody has different reasons for coming to the border. But the international outrage over family separation and the ways in which the message was sent is we’re going to stop doing this may have encouraged more people to come to the border.
Chris Hayes: Right.
Aaron Reichlin-Melnick: Because here you have the President saying like, actually, no, I’m not going to take children from families. Like actually even I agree that this is bad. And family units arrival started spiking immediately, you know, within a month or two after that. And we had, throughout 2018, he shut down the government in 2018, in December, declared a national emergency. Migrant arrivals kept increasing every single month after that.
They put Remain in Mexico in place in late January, 2019. They ramped it up February, March, April, May 2019. And the numbers kept going up, kept going up, kept going up until Mexico intervened. And Trump threatened 25 percent tariffs on all Mexican goods coming into the country. And Mexico caved and said, all right, we will crack down as hard as we can. They deployed their new national guard to the northern border.
You have images of Mexican National Guard troops running after Central American families, grabbing them and running them, you know, hustling them back onto the Mexican side or making sure that they weren’t able to cross onto the U.S. side. And that caused an immediate drop in migrant arrivals. The Trump administration points this and says, actually, it was Remain in Mexico that did this. This is the program that worked and this is the argument that they make.
They say, look, he reached that deal to expand Remain in Mexico. Migrant arrivals dropped immediately, program success. The complicated version of that is that this was, again, multiple other things going on. And if you actually look at like the dates in which this expansion actually happened, arrival started dropping weeks before the expansion actually began and coincided pretty much exactly with Mexico’s crackdown.
And in fact, we’ve actually seen this happen several times in 2014. Obama got Mexico to crack down and that caused a significant drop in families crossing the border. So, we’ve been in this cycle multiple times when numbers spike, Mexico cracks down. The U.S. imposes some policy and then they start going up again.
And the key difference is, you know, after this happened in the late 2019, the Trump administration started throwing other crazy policies at the wall. They created a roulette system where they would send Guatemalans to Honduras, Hondurans to El Salvador and Salvador into Guatemala, not just that.
Chris Hayes: They what?
Aaron Reichlin-Melnick: Yeah.
Chris Hayes: What do you mean by that?
Aaron Reichlin-Melnick: You might have heard of these. So, the so-called Asylum Cooperative Agreements. These are so-called safe third countries agreements. The Trump administration signed three of them --
Chris Hayes: Right.
Aaron Reichlin-Melnick: -- with Guatemala, Honduras, and El Salvador. You often see people saying ending these agreements under Biden caused a big thing. No, these agreements never really went into effect. The Guatemalan one did. They sent 945 Hondurans and Salvadorans to Guatemala total before COVID hit and the agreements were suspended. So, the idea that getting rid of those agreements made a big difference, again, less than a thousand people ever put through them.
But setting that aside, the idea was basically, no matter how you come here, we will turn you away. So crucially, you didn’t have to have ever been in one of these countries. If you were Honduran and you crossed the border, they could send you to Guatemala or El Salvador. If you were Salvadoran and you crossed the border, the idea was they’d send you to Honduras or Guatemala. And if you were Guatemalan, they’d send you to El Salvador and Honduras.
And then they went further than that. The agreement they signed with Honduras, let them send Mexicans to Honduras. So, you could be born in Tijuana, steps from the U.S. border and you tried to seek asylum, they’d put you on a plane and send you 3,000 miles south to Honduras. And they also sent Ecuadorans and Brazilians, the idea they would send them to Honduras too.
Chris Hayes: Wait, I don’t understand.
Aaron Reichlin-Melnick: Yeah.
Chris Hayes: What is the logic here?
Aaron Reichlin-Melnick: Well, the logic is find every way possible to deny people access to the United States. And that was --
Chris Hayes: Right.
Aaron Reichlin-Melnick: -- their overarching goal here. And, you know, look treating their utilitarian argument was this. This is taking them as seriously as possible, trying to treat their arguments --
Chris Hayes: Yeah.
Aaron Reichlin-Melnick: -- as fairly as we can. They said, it is awful, what happens to migrants. They are abused by the cartels, often, you know, sexually extorted, kidnapped, tortured, awful things happen on the way here. So, what we need to do is basically make it impossible for anyone to ever get --
Chris Hayes: Yeah.
Aaron Reichlin-Melnick: -- into the United States.
Chris Hayes: Shut down this entire route and shut down --
Aaron Reichlin-Melnick: Yeah.
Chris Hayes: -- both the border and the entire route, so that this mass migration route is not happening because it is a sight of horror, which by the way, it really is a brutal trip.
Aaron Reichlin-Melnick: Yeah.
Chris Hayes: And people do get exploited. They do get sexually abused. They do get occasionally kidnapped. They do get extorted. I mean they are walking victim, you know? They’re sort of easy pickings for a million different nefarious and predatory, you know, people and institutions.
Aaron Reichlin-Melnick: And the Trump administration, this was sort of their way of saying this is we will just cause as much harm to people so that, you know, if we just keep ratcheting up the punishment and the cruelty, eventually it will get so high that people stop trying to come at all. And there’s really just no evidence that actually works.
They do point to the fact that by like early 2020, January, February 2020 family unit crossings were down. Absolutely no doubt about it. And you know, we were in the sort of the lull period. Then COVID hit, Title 42, a pandemic health policy that the CDC technically put in place allegedly to stop migrants from spreading COVID, even though COVID was already spreading in the United States.
Chris Hayes: Right.
Aaron Reichlin-Melnick: You weren’t going to stop more people bringing it in. That went into effect and totally reshaped the border. It was essentially an end to asylum as they envisioned it. And the idea was any person crossing the border could be expelled without letting them access asylum, because it was public health law. It wasn’t immigration law.
So, that meant that they could circumvent every little protection, due process, anything in the immigration laws that were built in and to say, well, we can get to ignore those because this is public health emergency. We will just turn everybody away. And what that actually did, they reached an agreement with Mexico to turn back Hondurans, Salvadorans, Guatemalans, and Mexicans to Mexico, just those foreign countries.
And Mexico said, we’ll take those people, so you can send back as many of those people as you want. And so what happened is people started crossing, getting sent back to Mexico and then saying, well, okay, all that happened because this was not immigration law. It wasn’t a deportation. It had no --
Chris Hayes: Right.
Aaron Reichlin-Melnick: -- consequences. It was literally just a bus back to Mexico. And they said, okay, smugglers started saying, oh great, repeat packaging. You know, we’ll sell you a repeat crossing package, you know, three tries or your money back, you know, that kind of thing.
Chris Hayes: Right.
Aaron Reichlin-Melnick: And people started crossing over and over and over again. And so by the end of 2020, again, nobody was really paying attention at the time because of everything else happening with the election. But by the end of 2020, border crossings were already at 15-year highs.
Chris Hayes: Wait, the end of 2020. So even in COVID, pre-vaccine, after they’ve thrown everything at the wall, this is important, everything at the wall, deterrents. They’ve done everything they can to get border crossings of asylum seekers to zero, if they can do it, that would be their ideal number, right?
They have put Title 42 through the CDC, which is a public health law, which allows them to circumvent the normal due process to just ship people out without having to go through what you were talking about before. Even under all of that in the last full month of Donald Trump’s term, border crossings in December 2020 were at a 15-year high?
Aaron Reichlin-Melnick: Actually 20-year high.
Chris Hayes: That is crazy.
Aaron Reichlin-Melnick: Yeah. And again, no one was paying attention at the time because, you know, we were a few weeks away from January 6th. And I mean realistically, the thing is every single month from April 2020 through May 2021, border apprehensions went up, border crossings went up, every single month. Initially, it was mostly a return to the 1980s, 1990s of people coming here for work. And it was primarily single adults at first, but the number of family units crossing was creeping up too. The number of unaccompanied children was creeping up too.
And so you were already seeing a reversal of the Trump administration’s like success. And not only that, because people were just crossing over and over, the message was getting out, right now, you can cross as many times as you want. And if they catch you every time, they’re not going to prosecute you, they’re not going to formally deport you. They’ll just send you back to Mexico.
Chris Hayes: Right, because of the way Title 42 worked.
Aaron Reichlin-Melnick: Yeah. And in fact, it’s estimated during the Title 42 era, about one in three border apprehensions was a person on their second, third, fourth or fifth of --
Chris Hayes: Wow.
Aaron Reichlin-Melnick: -- failed attempt to cross. So, this repeat crossings, which used to be how the border worked back in the ‘90s when people would just keep crossing until they eventually made it through. We just sort of like, policy-wise, Title 42 was a return to the sort of laissez-faire, just send them back to Mexico policies of the 1980s and 1990s. And it was a complete failure.
And then the other crucial thing to understand is three days after Biden took office, the governor of Tamaulipas, which is the Mexican state bordering south Texas, bordering the Rio Grande Valley, said a new Mexican law had just gone into effect about the detention of migrant children. And he said, you know what? You can no longer expel children or families with children under the age of seven.
So if you are a family with a small child and DHS wants to expel you from south Texas back to here, we’re not going to let you do it. So within days, the Biden administration lost the ability to expel all families because that had been true. You know, under the last bits of the Trump administration, families were still being expelled.
But within days, that power broke down and then almost immediately we saw thousands of people who’d been waiting in, you know, central Mexico and northern Mexico to see what would happen, suddenly start crossing again. Because there had been a whole bunch of pent up demand with COVID and everything. And that is really when we started seeing large numbers of families start crossing again.
Chris Hayes: More of our conversation after this quick break.
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Chris Hayes: So, let’s now go over to the Biden administration. So, we have a sort of view of both the sort of legal, the vision of restrictionism of legal immigration, a vision of a sort of zero people at the border crossing for asylum and various attempts to get that number to there. Basically by any means necessary, right, to get there. Much of which did not work, which I think is a key thing to understand here.
Aaron Reichlin-Melnick: Or if it worked, it worked temporarily.
Chris Hayes: Right, it worked temporarily. So, now you go over to the Biden administration, and let’s just stay with the border and then we’ll go to legal immigration. So, the Biden administration does have a bunch of promises about things they are going to do differently at the border. And they do revoke some of the executive orders of the Trump administration. The argument that Republicans and Trump make now is the revocation of those is what has led to record numbers of border crossings.
So, let’s just start with, what does the Biden administration do differently? What are the places where it’s doing things differently than what Trump was doing at the border?
Aaron Reichlin-Melnick: Yeah, I mean the thing is as a policy matter, it’s not that much because Title 42 stayed in effect and it stayed in effect all the way through to May of 2023. And Title 42 was the big policy in effect when Biden took office.
Chris Hayes: Right.
Aaron Reichlin-Melnick: Those Asylum Cooperative Agreements I mentioned where they were sending Hondurans and Salvadorans to Guatemala, that agreement had been completely suspended since COVID hit. Guatemala said absolutely not. You are not sending back hundreds --
Chris Hayes: Right.
Aaron Reichlin-Melnick: -- in Salvadorans here during a pandemic..
Chris Hayes: Yeah.
Aaron Reichlin-Melnick: So, zero people had been put through those agreements when Biden took office and hadn’t been since March of 2020. Remain in Mexico, very similar. There hadn’t been a single court hearing. So for those who, you know, don’t remember how it worked under Trump, the idea was people were sent back to Mexico to go through a court process in the United States. They have to come back to the border, cross the border, go to a court hearing. And then if the court hearing, you know, ended, you know, or, you know, didn’t reach the end, they’d get sent back to Mexico.
And so those court hearings were also completely suspended and had been suspended since March of 2020 for COVID reasons. And they had been putting about a few hundred people, maybe a thousand people a month into the program, that’s it. Started, literally, just sending them back and saying, hey, sorry, we have no clue when we’re going to start up these court hearings. But why don’t you just wait in Mexico in the meantime?
So, when Biden took office, because of the pandemic, both of those policies, were basically have been set aside or were like, they were, you know, about less than 2 percent of people were put into Remain in Mexico during this period. So, Biden took office and said, look, we’re going to lift these policies. They’re not even really being used right now, but we’re going to keep in place Title 42. And they sent the message early on during the transition.
They said, look, we are going to be better on this, but we need time. The system is not working, don’t come. And they sent that message, don’t come over and over and over and over again. And of course nobody listened because no one ever listens to the United States in these issues. And to be clear, the Obama administration had tried that messaging.
They had a big messaging campaign in Central America saying, don’t come. The Trump administration had a messaging campaign in Central America saying, don’t come. And when the Biden administration, there’s just very little evidence that people listen. And, of course, like if you look at in the United States who listens to government PSAs, you know.
Chris Hayes: Right.
Aaron Reichlin-Melnick: Some people do, sure, but most people just tune them out.
Chris Hayes: So, the main thing to hear, to think about is the third party repatriation agreements and Remain in Mexico, which were two of the big policies that Trump administration used to try to reduce border crossings. Your contention is they weren’t that effective. And by the time that the transition happened, they were essentially more abundant because Title 42, which was the public health thing, sort of blocked it all out.
That was really the kind of sovereign at the border was Title 42. That was really what was guiding border policy. And so the revocation by the Biden administration of those two policies didn’t really make a big difference because 42 stays in place. Now eventually, and this is a very complicated litigation history here, but let’s just simplify it and I’ll simplify it this way. You can’t keep Title 42, which is a public health emergency provision, in place forever.
It got more and more ridiculous, particularly there was this certain moment where Republicans are, you know, at every opportunity saying the pandemic is over and all of these emergency authorities have to be revoked. And it was a huge, you know, treading on liberty but Title 42 has to stay in perpetuity.
Like whatever you thought about Title 42, it was effective, it wasn’t effective. It was good, it was bad at a certain point, it’s got to go away. It is tied to the pandemic and the public health emergency passes. It’s going to go either way. How much of a difference does it make when Title 42 does eventually go away?
Aaron Reichlin-Melnick: Yeah, you know, we’re coming up on a year, this May, without Title 42, going back to it. And there have been some things that we can observe about what’s changed. So, it’s leading to fewer repeat crossings. So, the big thing is there are fewer people doing this, you know, crossing over and over and over again because we’re back to a situation where the U.S. government is imposing harsher consequences on people.
And you know, long-term, multi-year bans on reentry, criminal prosecutions. Those are back in effect. What is happening is that we are seeing more families crossing now. And this makes some sense. You don’t want to really take a child across the border multiple times, if you get expelled, you know. No parent’s going to want to put their kid through that. So, we are seeing now where, you know, if a family crosses, there’s more likely that the family enter, they cross the U.S.-Mexico border, then we have to decide what to do with them under those two removal processes.
And so most families are having to go to the second process, the regular removal immigration court process. So, ending Title 42 has probably led to more families crossing just because I think parents and children are more vulnerable to deterrents-based policies to some extent, just because, you know, any parent naturally doesn’t want to put their child through an awful border crossing experience more than once.
Chris Hayes: Yeah.
Aaron Reichlin-Melnick: But single adult migrants, you know, we are seeing fewer of them crossing because there was less of that churn of migrants crossing over and over and over again and getting sent back. But the key difference is, what’s really shifted is the demographics are different now. From 2014 to 2021, it was Central American migrants was the big issue.
Starting in 2021, especially as COVID pandemic destabilized South America and really threw everybody for a loop, a lot of Venezuelans started coming north to the border. About one in four people have left Venezuela in the last decade, around 7.7 million. The overwhelming majority are still in South America.
The United States is not the foremost refugee hosting country in the region.
Chris Hayes: Right.
Aaron Reichlin-Melnick: It’s other countries are hosting per capita much higher populations than the United States is. And starting in 2021, though, we did start seeing more people start coming from countries like Venezuela and Cuba. In fall of 2021, Nicaragua relaxed its visa requirements for Cubans and said, hey, Cubans, you no longer need a visa to fly here.
And so suddenly tens of thousands of Cubans started flying to Nicaragua and heading north to the United States.
Chris Hayes: Right.
Aaron Reichlin-Melnick: And very crucial thing to understand about this is that the United States doesn’t have repatriation agreements with every country in the world. And in particular, we don’t have repatriation agreements with Venezuela or Cuba. Many people kind of have a sense about this with Cuba. For 50 years, basically, Cubans were almost immune from deportation.
If you made it onto U.S. soil, I mean, some people have heard of wet foot, dry foot. Wet foot, dry foot was an acknowledgment that Cuba said, if somebody’s made it onto U.S. soil, we will not allow them to come into the country and back. So you can’t deport them to us. And the key difference here, we saw this with Venezuela as well.
You had Venezuelans coming to the border and crossing, and the United States had effectively, even under Title 42, Mexico wasn’t taking them at first and Venezuela wasn’t taking them. So like Cubans before them, once they got onto U.S. soil, they reached a point where they basically had no real ability of the United States to do anything in that circumstance.
And again, this is not new. It had been the way for Cubans. But as more people from across the hemisphere started arriving, this became a bigger and bigger issue for the United States. And especially because the Venezuelan diaspora is so large, as more and more people started coming, this became a bigger and bigger problem for the United States because you had tens of thousands of people crossing from Venezuela and realistically, geopolitically-wise, nothing we could do about that.
Chris Hayes: Yeah. I just want to hammer home an obvious thing that’s implicit in what you’re saying is you can’t deport people to a country against that country’s will, just to be clear. Like you cannot --
Aaron Reichlin-Melnick: Yeah.
Chris Hayes: -- you can’t do it. You need clearance with them legally to run your plane there, to do whatever. Like, so if the country says we’re not taking them, like you can’t send them there.
Aaron Reichlin-Melnick: Yeah. And Venezuela does not permit the United States to fly deportation flights. So you can technically deport people via commercial air, but there are no direct flights from the United States to Venezuela. So you actually have to like task an ICE agent to get on a flight, a commercial flight, watch somebody go to the connecting airport and like watch them get on the plane back to Caracas.
So realistically, only like less than 200 people a year were being deported to Venezuela. So eventually, you know, the Biden administration reached a deal with Mexico. And in October of 2022, Mexico said, we will let you deport Venezuelans here under Title 42, expel them under Title 42. And that deal was expanded in January of 2023 to Cubans, Haitians and Nicaraguans.
But Mexico said, we want something out of this. And what we want something out of this is shared responsibility for migration. And so they said, here’s the deal that they worked out. It was, we will take 30,000 Cubans, Haitians, Nicaraguans and Venezuelans expelled back to Mexico every single month. But in exchange, you have to accept 30,000 different Venezuelans, Cubans, Nicaraguans and Haitians through humanitarian parole each month.
And that was as part of the sort of like shared regional migration framework. So this is now the CHNV parole program, which you’ve seen a lot of Republicans attack as, you know, there was a completely inaccurate talk about these were like charter flights coming into the country. No, you have to buy a plane ticket. It’s a program you get screened.
Chris Hayes: Right.
Aaron Reichlin-Melnick: It’s a little bit like immigrating legally. But this was very much part of a carrot and stick approach from the Biden administration. It was, we will crack down and send you back to Mexico. But if you don’t come here in the first place, if you apply for one of these programs, here’s a new option that’s available that’s never been available before.
Chris Hayes: Right. Keep you off the border. Right.
Aaron Reichlin-Melnick: Keep you from ever coming to the border in the first place. Yeah.
Chris Hayes: So let’s just zoom out for a second, because there’s a lot again, this is all pretty complicated, right? But the general thing is, Title 42 goes away. And I guess, here’s one question. There has been an enormous spike in crossings of the border.
Aaron Reichlin-Melnick: Yes.
Chris Hayes: And I think that sometimes people who may listen to this podcast and they’re who have my politics, like the Fox stuff is like all this like it’s just constant 24/7. But when you look at the numbers, they’re pretty wild. Like we’re talking Ellis Island at its peak almost level numbers like of people now as much smaller country.
But like, you know, there’s a ton of people. It’s record setting. It was happening for several months. And there really hadn’t ever been anything like this at the southern border. So it wasn’t purely hysteria.
Aaron Reichlin-Melnick: Yes and no. So I think, you know, if you look at overall crossings for about a 25-year period from the 1970s through to 2007, basically when the Great Recession hit, routinely over a million apprehensions a year, routinely. And of course, back then apprehensions is not the same as crossings because they weren’t apprehending everybody crossing. Not a surprise there.
And even by 1977, President Carter is already saying an estimated 2.5 million crossings a year. So, you know, one in three people are being apprehended. And it wasn’t until, according to official DHS estimates, it wasn’t until 2012 that a majority of the people crossing the border were taken into custody.
So what that means is if you look back at, you know, what are official estimates in fiscal year 2000, 25 years ago, you had 1.67 million apprehensions. And according to DHS estimates, about 2.1 million successful unlawful entries on top of that. So it’s about 3.8 million total crossings. That’s 25 years ago.
So we have seen this level of very high crossings before. The key distinction now is these are not people who are primarily trying to evade arrest. The majority of people now are turning themselves in to access the humanitarian protection system. They’re no longer Mexicans. And we increasingly high numbers of people who don’t have any family or friends in the U.S., don’t know anybody here and need a lot more support services when they get here than has happened in the past.
Chris Hayes: This is a transformation of what’s happening down there, because when you go back to 2000, it’s people essentially, primarily Mexicans, sneaking across the border. You know, if you’ve watched “El Norte” or whatever, you know, they’re sneaking across the border, although that was Central Americans, but they’re sneaking across the border, probably with some family or people they know there and they’re trying to work and they might go back or they might stay.
This is people showing up with often no family from not just the Western Hemisphere, but sometimes all over the world. I mean, the vast majority, the Western Hemisphere and, you know, pluralities of Venezuelan, Cubans right now that shifts around, going to be apprehended to apply for asylum. And basically an extremely high volume alternate system of entry that has basically been built up at the southern border in a place that doesn’t have like it’s compared to Ellis Island.
Ellis Island was built to do that. We’ve now got this system where there’s because of in some ways, I would say how little we’re letting in people through the other means, the demand pushing to the border where like this system is completely ill-equipped to do what it’s now being stood up to try to do, which is deal with an enormous capacity of folks presenting who basically want to immigrate legally and they’re using asylum because that’s what’s available.
Some of them definitely deserve asylum, but not all, but they can’t assess that themselves because they just want to come to the United States. And so I guess the question is, like, why have we gotten to this point? Like, has the Biden administration made decisions that have produced this or is this a sort of natural forcing mechanism from global demand? How do you see it?
Aaron Reichlin-Melnick: Yeah, I mean, I really do see this on a spectrum and you look at what has happened over the last decade and this has been building. You have to keep in mind that this isn’t new. This didn’t start under the Biden administration. And we had now three separate presidential administrations that have been trying to deal with this and Congress has been completely absent.
We have not updated our legal immigration system since November of 1990. The first website, Tim Berners-Lee put online at CERN in December of 1990. So our legal immigration system predates the World Wide Web.
Chris Hayes: Wow.
Aaron Reichlin-Melnick: Our humanitarian protection system, this idea of expedited removal, incredible fear interviews, that comes from 1996, like the peak of the Macarena. These are 1990s, 20th century systems that did not anticipate the modern world we find ourselves in today. And so presidents have used whatever limited executive authority that they have here and sometimes very expansive executive authority.
But the core resource challenges and the bottlenecks in the system just need Congress to step in. So as this has built and built and built, smuggler networks have also built and built and built. This did start out 10 years ago. It was mostly smugglers in Guatemala, Honduras and El Salvador.
And then as more and more people are saying, as the legal immigration system became less accessible, as you know, Trump cut legal immigration, then COVID slashed legal immigration for years and consulates are just recovering now. There are backlogs in India right now, in China. In China in particular, if you look at the numbers here, more people got visas from China in 2019 than in 2020 to 2023 combined in a four-year period after that.
Chris Hayes: Wow..
Aaron Reichlin-Melnick: That was how much COVID devastated the system there.
Chris Hayes: Wow.
Aaron Reichlin-Melnick: And it’s not really a surprise that when legal immigration to the United States dries up and you have global coverage and politicians screaming about an open border, that you start seeing more people say, well, hey, seems like there might be. And this becomes this sort of self-reinforcing cycle.
Chris Hayes: Wait, do you think domestic political attention drawn to the border perversely ends up as an advertisement for people to come?
Aaron Reichlin-Melnick: Undoubtedly. I mean, really, especially because a lot of this stuff spreads through WhatsApp and TikTok. And so you see, social media has also been a huge driver. And also it is just easier than ever to migrate. You now have translation apps. You can now be from whatever part of the world and you can have your language translated into Spanish. That was not 10 years ago.
Chris Hayes: Right.
Aaron Reichlin-Melnick: You now have social media giving people guides to get here. You’ve got smugglers who are coming. All of this didn’t exist in the past. And this has been a real shift.
Chris Hayes: I mean, I know you have certain political commitments or normative commitments about what you would like to see happen in policy and you’re being very careful and descriptive here. If Donald Trump replaced Joe Biden tomorrow with Stephen Miller at his side, right, like, would they be able to drive it to zero?
There’s a sense that the attacks on the Republicans, this is a lack of will, right? That like unilaterally that Joe Biden actually wants this to happen. He wants people showing up at the southern border because they’re going to be future Democratic voters, which is itself like ludicrous and dubious.
And in fact, actually, maybe not true because like the history of people fleeing failed leftist states is that they become Democratic voters, by the way. But is that fair? Is there some lever he could hit, some screw he could turn to make this stop, basically?
Aaron Reichlin-Melnick: No, I think you would see a big drop in part because people operate on a wait and see policy. So when Trump took office, border crossings plummeted. January 2017 was the lowest border crossings in 50 years.
Chris Hayes: Right.
Aaron Reichlin-Melnick: And that had nothing to do with Trump actually changing any policy. The policy remained identical. It happened because people take a wait and see approach. And so we have seen this pattern before. The end of Title 42, for example, the Biden administration said, we are going to be harsh. We are going to crack down. We’ve imposed these new asylum restrictions and border crossings did drop significantly.
And then people started testing it and found out that these fundamental resource limitations are still there. And so as much as the Biden administration, you know, right now, about 90% of people who cross the border without permission right now or cross it illegally are denied asylum, will be denied asylum eventually.
But they can’t be denied asylum until they get in front of an immigration judge five to seven years from now. And so the Biden administration can’t put this asylum restriction in place, literally does not have the resources to do that. And so I think not just a Trump administration, but any administration really wants to crack down, you would see an immediate drop. And then you would see the numbers start trickling up again.
And the real question mark here is Mexico. You cannot deal with migration without working out a deal with Mexico. And it’s also elections in Mexico this time. Next year, we will have a new Mexican president. And it is going to be a woman. And we have seen how President Trump had dealt with female heads of state. And there is a lot of Mexico’s pride on the line here.
And you see Mexico really bristling at the ways in which a lot of people on the right now are going after them, calls to bomb Mexico, and in fact. And this has really been an issue here. And so this is something that they view as a battle of wills. In fact, I testified in front of a congressional hearing two weeks ago, I was sitting next to Gene Hamilton, one of the Stephen Miller’s close allies and one of the architects of family separation.
And he said in this hearing very openly, he said, we need to win a battle of wills with them. We need to overcome them, overcome their will. And he said, that’s how you do it. You overcome Mexico’s will. And international diplomacy is not that simple.
Chris Hayes: Right.
Aaron Reichlin-Melnick: Mexico is now our number one trading partner. That used to be Canada, China, and it would change back and forth. It’s now Mexico. So the Trump administration’s threat of 25% tariffs in 2019, you can’t threaten that today. Imagine 25% tariffs in a time when we’re worried about inflation. That would set off an economic death spiral.
Chris Hayes: Yeah.
Aaron Reichlin-Melnick: And so I think Mexico would probably rightly look at this and say, who are you kidding? Now, AMLO has actually said, the president of Mexico, Andres Manuel Lopez Obrador, he has said, actually, sure, I’ll work with the Biden admin. When the big Senate deal came out, he said, I’ll take migrants, but you have to give me something in exchange.
And what he wanted in exchange was far beyond what the United States is willing to give. It was legalization for all the undocumented immigrants, $20 billion in development assistance for Central and South America, an end to Cuba sanctions, an end to Venezuela sanctions. The United States foreign policy establishment is not willing to do those right now. So it’s hard to say whether that was a deliberately too high demand, sort of intended to provoke who are you kidding response.
Chris Hayes: Right.
Aaron Reichlin-Melnick: But it’s a sign that they want more than what they’ve gotten, because Mexico has been dealing with this, too. And so I think Mexico itself sees that it is the United States’ greatest hope on actually being able to get migrants to stop coming to the border. And they’re saying, well, okay, if you’re going to make us spend billions of dollars of our own funds on this, yeah, what’s in it for us?
Chris Hayes: We’ll be right back after we take this quick break.
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Chris Hayes: I want to talk about one more policy thing under the Biden administration, because there’s the unilateral stuff they can do. But then, of course, there’s the big border bill. And you said that, you know, we haven’t updated this since 1990. This was the big attempt to update not the whole immigration system, but stuff around the border.
It was a bipartisan deal that was worked out between Republican and Democratic senators, James Lankford of Oklahoma and Chris Murphy of Connecticut, and then a few other people, Katie Britt of Alabama and a few other folks got together. I think Kirsten Sinema was the candidate (ph) from Arizona, the independent.
Aaron Reichlin-Melnick: It was Tillis, Lankford, Murphy and Sinema.
Chris Hayes: Right. So the four of them got together. They hammered out this thing. Conservatives were crowing. Well, initially they came out of it crowing, saying we’ve got the sort of the best border crackdown legislation we can imagine. And they’re not asking for anything on the Dreamers or, you know, anything like that. It’s just a border bill.
Donald Trump came out and killed it immediately because he wanted the border to be in the worst shape possible as a sort of political tool. But tell me about the actual substance of that bill.
Aaron Reichlin-Melnick: Yeah, I mean, it was an actual serious attempt to discuss these issues. They’re very clear that they actually did get in a room and talk through these resource limitations and, you know, what statutory changes might be necessary and come to what seems to be a compromise.
Now, was it a perfect compromise? No. In fact, we’ve argued that it was just overly complex and the authority had too many weird aspects of it. There were parts of compromise for it to really have functioned that well. But it was definitely a big swing at actually fixing the issue. So, for example, it would have hired thousands of new asylum officers, which, as I’ve mentioned, is the fundamental bottleneck, right?
Chris Hayes: Bottleneck, right.
Aaron Reichlin-Melnick: And it would have hired hundreds of new immigration judges, new agents, new resources in general to deal with this, to really say like, okay, this is a resource issue. If we have enough resources, we can get a functional system again. And it did have a new authority to essentially suspend asylum, to return a little bit to the Title 42 type policies of the past.
And it also greatly shortened the asylum process and said one of the biggest structural changes was if you come across the border and you go through credible fear, even if we can’t give you a credible fear interview soon because we don’t have an asylum officer available, we don’t send you to immigration court. We just keep you in this credible fear thing.
So maybe you have to wait six months for a credible fear interview, but you’re still in this expedited removal framework so that you have fewer rights, fewer rights to appeal. And in fact, under the new process, people would just never go to courts. They’d never get to see a judge. If a bureaucrat denied them, that was it. You could not even appeal to a federal court.
It just essentially cut courts out of the process completely and became a bureaucratic process, purely in front of officers in the government with really no input whatsoever from an independent third party, whether that be an immigration judge or later a federal circuit court appeals judge.
But it also said people still have a right to seek asylum. It also didn’t set as a goal zero people crossing the border. It acknowledged people will keep crossing. And it’s not bad that someone crosses. We just need to have a process in place in order to ensure that they are someone with a legitimate claim for asylum.
But you saw Speaker Johnson say the goal should be zero. Zero people crossing.
Chris Hayes: Right.
Aaron Reichlin-Melnick: And I think that is right now the fundamental difference between the two parties. You are seeing an increasing on the Republican side of things, an increasing abandonment of the idea that people can seek asylum at the border. And on the Democratic side, you have increasing willingness to crack down and impose new restrictions.
But they have not abandoned the idea that people will come to our borders. They will be seeking protection. And we should have a system in place to determine whether or not they qualify. And I think that is the rhetorical fight going on right now between zero and we actually should have a system in place to screen people and zero is unrealistic.
Chris Hayes: Let’s sort of end this on legal immigration, because we spent a lot of time on Biden and the border. But for all the things you talked about before, how the previous administration, Trump, had used every means possible, including throwing out applications that didn’t put N/A in blank spaces, what’s the sort of top line of what the Biden administration has done on legal immigration and those pathways?
Aaron Reichlin-Melnick: Yeah, I mean, you use a metaphor here. You know, when Biden took office, the legal immigration system was like a cruise ship that was on fire and listing. It hadn’t fully sunk yet, but things weren’t looking good. So right now the fire is out. They’ve mostly righted a lot of the list, but the engines aren’t really going yet. And that’s due in part to, again, they had to dig themselves out of a really big hole, not just caused by the Trump admin, but also caused by COVID.
And like when you just stop adjudicating a lot of things for months and months and months and months on end, that creates a huge backlog. But last year, in fiscal year 2023, USCIS, for the first time in over a decade, actually reduced the overall number of applications pending at the end of the year.
Chris Hayes: Oh, wow.
Aaron Reichlin-Melnick: But it’s mixed because it’s like a balloon. If you squeeze one place, you know, it expands elsewhere. So every time they’ve sort of gone after one kind of backlog, that causes another thing to get neglected. And they are hiring constantly. Congress two years ago gave $250 million for backlog reduction. Last year, $135 million. And the DHS bill that just passed another $160 million. So they are actually giving aid funding to the agency, which, crucial to understand here, it’s a fee-funded agency.
Congress usually doesn’t give them any money at all. They have to charge fees to people. And so fees are going up. Starting April 1, for example, pretty much any employment-based petition that people file to bring someone here to work legally will have a $600 asylum program surcharge --
Chris Hayes: Wow.
Aaron Reichlin-Melnick: -- tacked on so that they can hire asylum officers. Because asylum officers are not paid for by Congress. So they essentially are now going to be paid for by employers --
Chris Hayes: Wow.
Aaron Reichlin-Melnick: -- and people filing for things. So we’re making the legal immigration system more expensive to deal with the border because Congress doesn’t fund it. So that’s one thing we can fix. But, you know, generally speaking, there are still a lot of backlogs. And the system is by no means perfect. And that’s just processing backlogs. There’s nothing the Biden admin can do about structural green card backlogs created by the fact that Congress hasn’t updated this since 1990.
You know, if you look at Indian nationals, for example, so crucial, there’s a 7% quota on all visas. No country can get more than 7% of any visa category in any given year, which is the idea was to ensure that no one country dominates. But what that means is that for certain categories of nationals, like Indian nationals, the waiting times are over 100 years.
There are visa categories right now where even if you are eligible, you qualify, you file the application, you’re approved. And they’ll basically say, here’s a ticket. Go get in this line. We’re going to give you your visa when you’re dead of old age. And so that’s the sort of stuff that like Congress can fix. Biden can’t.
Chris Hayes: And in terms of raw numbers, we have seen an increase, right, of legal immigrants coming to the U.S. Just again, like at the broadest level of like --
Aaron Reichlin-Melnick: Yes.
Chris Hayes: -- I know. This is a complex system and there’s not just one dial, but there is a difference. Like if you want fewer people coming to the United States, like if you really want to dramatically reduce immigration, and that’s like a key thing for you, like Donald Trump is probably closer to your views. If you don’t feel that way, if you would like to continue what we have or expand it, Joe Biden is probably closer to your views.
Aaron Reichlin-Melnick: And I also think it’s important to also look at the link between the border and legal immigration. You know, as legal immigration becomes more and more inaccessible, people get driven to the border.
Chris Hayes: Yeah.
Aaron Reichlin-Melnick: So, you can’t look at the border with a myopic view that starts and ends right down there on the line between the U.S. and Mexico.
Chris Hayes: Yeah.
Aaron Reichlin-Melnick: You really do need a broader perspective that looks at the systemic issues throughout the entire legal immigration system that are causing people to do this.
Chris Hayes: Aaron Reichlin-Melnick is the policy director of the American Immigration Council. That was so, so informative. And I’m going to have to like process this for a while. But seriously, that was that was fantastic. Thank you so much.
Aaron Reichlin-Melnick: Thanks for having me.
Chris Hayes: Once again, cannot thank Aaron Reichlin-Melnick enough for that conversation which was exactly what I was looking for when we launched this new undertaking for this election year. Aaron is the policy director at the American Immigration Council. We would love to hear from you after having done this first one, if you found it helpful, if it's the kind of thing that you would share with friends or people that you know, people in your life who are sort of thinking about this campaign. You can email us at withpod@gmail.com. You can get in touch with us using the #WITHpod across a number of social networks. You can follow us on TikTok by searching for WITHpod. We actually have a WITHpod TikTok account. You can follow me on X, on Threads, on Bluesky, all of which is chrislhayes.
“Why Is This Happening?” is presented by MSNBC and NBC News, produced by Doni Holloway and Brendan O’Melia, engineered by Bob Mallory and featuring music by Eddie Cooper. Aisha Turner is the executive producer of MSNBC Audio. You can see more of our work, including links to things we mentioned here by going to nbcnews.com/whyisthishappening.
“Why Is This Happening?” is presented by MSNBC and NBC News, produced by Doni Holloway and Brendan O’Melia, engineered by Bob Mallory and featuring music by Eddie Cooper. Aisha Turner is the executive producer of MSNBC Audio. You can see more of our work, including links to things we mentioned here by going to NBCNews.com/whyisthishappening?