Rubio overstates effect of Biden immigration actions, falsely claims he’s not detaining migrants

Is President Joe Biden the first U.S. president ever who will not detain immigrants in the U.S. illegally? That’s what Sen. Marco Rubio, R-Fla., said.

"Well, the realistic path forward if we want to end this crisis begins by Joe Biden reversing the executive orders that he made," Rubio said March 3 on "Fox News Sunday." 

"Every single one of them was designed to reverse a Trump policy. All those executive orders that are basically for the first time in American history we have a president who will not detain the people who enter this country illegally."

PolitiFact contacted Rubio’s office to ask which executive orders he was referring to but received no reply. We found a January opinion article Rubio published in the Miami Herald where he referenced specific executive actions.

"Within days of his inauguration, President Biden placed a 100-day moratorium on deportations, halted construction of the border wall, dismantled Remain in Mexico and ended the Asylum Cooperative Agreements," Rubio wrote. Rubio also noted that in 2022, Biden ended the use of Title 42, a pandemic-era policy that permitted rapid expulsions. That change, Rubio wrote, "signaled an unwillingness to deter cartels and coyotes, so more migrants headed north." 

Immigration experts said Rubio mischaracterized Biden’s actions, ignoring the number of migrants detained and deported during Biden’s presidency and the actions of previous presidents. 

Since 1996, federal immigration law has generally required that people who enter the U.S. illegally be detained as they await court proceedings. However, because of lack of detention space, no administration has been able to detain every migrant.

"Every president in the last century has released some migrants who crossed the border," said Aaron Reichlin-Melnick, policy director at the American Immigration Council, an immigrant rights advocacy group.

Millions of migrant releases occurred under former Presidents Barack Obama and Donald Trump, Reichlin-Melnick said. By comparison, Biden released a lower percentage of migrants in his first two years in office than Trump did in his last two years, according to a November 2023 report by the Cato Institute, a libertarian think tank.

"As of February, (Immigration and Customs Enforcement) had approximately 39,000 migrants in detention nationwide," said Colleen Putzel-Kavanaugh, an associate policy analyst at the nonpartisan Migration Policy Institute.

Putzel-Kavanaugh said the U.S. doesn’t have enough detention space for the record number of migrants at the border. 

"It is the U.S. Congress that determines and funds the number of detention beds that ICE has at its disposal," she said. "And while the administration can set priorities on who to detain, once ICE capacity is overwhelmed, immigration authorities must adjust priorities."

We’ll examine each of the Biden actions Rubio highlighted.

100-day deportation moratorium

On Biden’s first day in office, the Department of Homeland Security published a memo pausing for 100 days the removal of certain people illegally in the U.S. Federal courts quickly banned the pause’s enforcement.

The memo specified that the pause meant to divert  resources to the border to carry out more expulsions and deportations of recent border crossers. People who posed a national security or public safety threat, or who entered the U.S. after Nov. 1, 2020, would be prioritized for expulsion.

The memo said it did not prohibit the apprehension or detention of anyone who wasn’t part of a priority category.

In September 2021, DHS released a second memo with similar guidelines for Immigration and Customs Enforcement to prioritize removing people who crossed the border in recent years or who threaten public safety. Courts also banned enforcement of those guidelines that year. They were reinstated in 2023 after a Supreme Court decision.

There were more than 3.6 million removals, returns and expulsions from February 2021, Biden’s first full month in office, to September 2023, based on Department of Homeland Security estimates.

Halted border wall construction

On his first day in office, Biden issued a proclamation terminating the national emergency Trump had used to divert Defense Department funding to build additional border barriers. However, in October 2023, the Biden administration resumed barrier construction using money Congress had previously appropriated. The Biden administration also has spent millions of dollars on barrier repairs.

Immigration experts have questioned barriers’ effectiveness at reducing illegal immigration and pointed out that the wall has been breached thousands of times. 

Dismantled ‘Remain in Mexico’

The Biden administration announced in January 2021 it would stop new enrollments in the Migrant Protection Protocols program, also known as "Remain in Mexico," which sent certain people who arrived at the southern U.S. border back to Mexico to await asylum claim proceedings. 

The program was stopped and restarted several times because of court decisions until the U.S. Supreme Court ruled in June 2022 that it could be terminated. The program, which formally ended in October 2022, had enrolled 81,000 migrants.

But immigration experts said the program was effectively defunct by the time Biden took office and had been almost completely replaced by Title 42.

"Remain in Mexico was barely operational in January 2021 and Biden returned vastly more people to Mexico using Title 42 than were removed under Remain in Mexico," said David Bier,  a Cato Institute immigration expert. "He then cooperated with the court order to restart and for several months in 2022 was returning more people than at any point in 2020."

Ended the Asylum Cooperative Agreements

The Asylum Cooperative Agreements had already been suspended since March 2020 because of the COVID-19 pandemic. Biden officially terminated the agreements shortly after taking office. 

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The agreements, signed with El Salvador, Guatemala and Honduras, allowed U.S. officials to deport people seeking asylum to these countries with certain conditions. But the U.S. had implemented only one of the agreements, with Guatemala, experts told us.

"Not a single person was subject to an (Asylum Cooperative Agreements) after March 20, 2020," said Reichlin-Melnick, from the American Immigration Council.

Ending Title 42

Biden allowed Title 42 — a pandemic-era public health policy that prevented many migrants from applying for asylum and permitted rapid expulsions — to expire in May 2023. Bier said data shows that ending the program hasn’t increased migration, and instead increased security by reducing the number of "gotaways" who evade border patrol. 

The Department of Homeland Security replaced Title 42 "with a system of incentives for asylum seekers arriving at ports of entry and disincentives for those crossing between ports of entry without authorization, among other changes," the Migration Policy Institute wrote in a January report.

Immigration experts also said the program was automatically terminated when the COVID-19 public health emergency expired. 

"It was not an immigration policy,"  Reichlin-Melnick said, "and Biden kept it around long past the point that anyone was seriously arguing that it was being used for public health reasons."

Rubio said Biden’s executive orders meant "for the first time in American history we have a president who will not detain people who enter the country illegally."

Rubio’s claim ignores detentions and deportations under Biden, and the millions of releases under previous presidents. Experts said the U.S. doesn’t have enough detention space for all migrants.

Experts said Rubio overstated the effects Biden’s executive actions had on illegal immigration. Some of the actions terminated already defunct or suspended programs; other actions were temporary or had questionable effect on migration numbers. 

The orders also didn’t prevent detention of migrants. As of February, ICE had about 39,000 migrants in detention nationwide, an expert said.

We rate Rubio’s claim False.

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PolitiFact Staff Writer Maria Ramirez Uribe contributed to this report.