This op-ed is part of a series exploring what a second term would look like for either President Biden or former President Trump.
President Biden initially sought to reform our “broken” immigration system through legislative means. On his first day in office, he sent his U.S. Citizenship Act of 2021 to Congress. It would establish numerous immigration benefits, including the largest legalization program in U.S. history, increased opportunities for lawful immigration and humane treatment of migrants at the border.
When this didn’t work, he shifted his focus to administrative actions. This included bypassing the visa system by bringing migrants here through new legal pathways, catch and release at the border and restricting interior enforcement. Apparently, by “broken,” he means that existing law doesn’t permit enough immigrants to come here and subjects the ones here unlawfully to the threat of deportation.
This has caused serious, presumably unanticipated consequences, such as a record-breaking increase in illegal border crossings and an immigration court backlog crisis that can’t be fixed.
Border security expert Todd Bensman claims that whether migrants are willing to pay big fees to be smuggled into the country depends on how likely it is that they will be able to get in and stay — and the likelihood of being able to do this has been extraordinarily high during the Biden presidency.
This is not likely to change if Biden is re-elected.
Catch and release and “lawful pathways” let them in without visas.
Border Patrol has encountered more than 5.6 million illegal border crossers on the Southwest border during the Biden presidency, which is three times the number of encounters it experienced during Donald Trump’s presidency. The average number of monthly encounters under Biden has been roughly 189,000, compared to an average of 51,000 during the Trump administration.
Moreover, as of the end of March, Biden had released more than 2 million of them into the interior of the country.
These are not just asylum seekers. The Border Patrol apprehended 169 illegal crossers on the terrorism watchlist in fiscal 2023, compared to only 11 from fiscal 2017 through fiscal 2020.
More illegal crossings are occurring on the northern border, too. One of the northern Border Patrol sectors has apprehended more than 6,100 illegal crossers from 76 countries in the last 11 months, which is more than during the previous 10 years combined.
Biden also has established “legal pathways” that provide an alternative to illegal border crossings for migrants who can’t get visas. He has used these initiatives and border practices to parole around 3.6 million migrants into the country in the last three years. The parole status of at least 1.2 million of them has lapsed, and they are still here.
The legal pathways include special processes for paroling up to 30,000 nationals a month into the country from Cuba, Haiti, Nicaragua and Venezuela, and a Family Reunification Parole Process for certain nationals of Colombia, Cuba, Ecuador, El Salvador, Guatemala, Haiti and Honduras.
He also expanded the CBP One mobile application program that was launched by the Trump administration. It permits migrants without visas to schedule an appointment to present themselves for inspection at a designated port of entry.
Nearly 250,000 migrants without visas have been paroled into the United States through this program through August 2023.
From January through Sept. 5, 2023, parole was granted in 99.7 percent of the interviews.
In view of the success Biden has had in using these programs as an alternative to the visa system, I would expect him to maintain or even increase his use of such programs if he is re-elected.
Lax interior enforcement lets them stay.
DHS Secretary Alejandro Mayorkas issued enforcement guidelines in which he says that, “The fact an individual is a removable noncitizen therefore should not alone be the basis of an enforcement action against them.” The guidelines focus enforcement efforts instead “on those who pose a threat to national security, public safety, and border security and thus threaten America’s well-being.”
The guidelines shield illegal border crossers from deportation once they have reached the interior of the country, which encourages them to keep trying until they succeed. Such multiple attempts have become common.
Biden can’t reverse this without subjecting himself to claims that he has reverted to his predecessor’s enforcement policies. Biden and Trump both prioritized the removal of criminal migrants. The main difference is that Biden has exempted migrants who are just deportable for being here unlawfully while Trump didn’t exempt any deportable migrants.
The carrot-and-stick solution
Biden tried to reduce illegal crossings with a carrot-and-stick strategy that combines an expansion of legal pathways to the U.S. with adverse consequences for those who still choose to make an illegal entry.
Migrants who enter illegally instead of taking advantage of a legal pathway will be presumed to be ineligible for asylum absent an applicable exception and may be processed in expedited removal proceedings.
Illegal crossings dropped from 183,921 in April 2023 to 99,538 in June, but they rose back to 181,059 in August and were at 218,763 in September. The total for fiscal 2023 was 2,045,838.
This was inevitable. Legal pathways are not available to every migrant who wants to come here but can’t get a visa, and never will be.
Biden’s programs have released so many migrants into the country that they have overwhelmed the immigration court.
The court is needed to adjudicate asylum applications and to remove migrants Biden has released into the country who are not able to establish asylum eligibility or any other basis for remaining here.
At the end of 2021, the immigration court backlog had reached 1,596,193 — the largest in history. But by the end of fiscal 2023, the backlog was 2,794,629 cases. And progress isn’t being made on reducing it. The court received 1,488,110 new cases in fiscal 2023, and only completed 669,011.
Biden has requested funding to hire 150 more judges. But the Congressional Research Service determined that even if the size of the immigration court were to be increased from the 600 judges it has now to 1,349 judges, it would still take 10 years to clear the backlog. And the situation has gotten worse since that calculation was made.
I don’t know an acceptable way to end this crisis.
Biden may back off from some of these policies while he is campaigning, but I expect him to make even more use of them if he succeeds in being re-elected, which ultimately could double the size of our undocumented immigrant population.
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: https://nolanrappaport.blogspot.com
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