Biden should choose legal pathways over new restrictions

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President Joe Biden would make a mistake if he issued a new executive order to block asylum seekers in the hope of improving his election standing. It is unlikely the order would be lawful or effective. Instead, the Biden administration should focus on policies that have worked by expanding legal pathways. Individuals and families allowed to enter lawfully do not immigrate illegally.

The Associated Press reports, “The White House is considering using provisions of federal immigration law repeatedly tapped by former President Donald Trump to unilaterally enact a sweeping crackdown at the southern border.” The effort shows how pressure over the upcoming rematch with Donald Trump influences U.S. immigration policy.

The president may declare that individuals crossing the southwest border are ineligible to apply for asylum. A court would block it, given the experience when Donald Trump tried a similar approach via regulation.

In November 2018, Judge Jon S. Tigar of the U.S. District Court in San Francisco issued a nationwide order that barred the Trump administration from preventing individuals who entered along the southwest border from applying for asylum. “Whatever the scope of the President’s authority, he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden,” declared Judge Tigar. In February 2020, the 9th U.S. Circuit Court of Appeals also found the Trump asylum rule unlawful.

Republican lawmakers have pressured the Biden administration to reinstate Remain in Mexico, a Trump policy that required asylum seekers to live in Mexico, often in dangerous conditions, until their cases were heard. The United States cannot implement that policy without Mexico’s approval, and the Mexican government has stated it opposes allowing asylum seekers to stay in their country for months on end. There is also no evidence the policy reduced illegal entry.

The Trump administration started Remain in Mexico in January 2019. “Border Patrol apprehensions along the Southwest border [a proxy for illegal entry] increased by 162% between December 2018 and May 2019,” according to a National Foundation for American Policy (NFAP) analysis. For six consecutive months, Border Patrol apprehensions at the border remained higher than before the policy began.

In contrast, providing legal pathways has reduced illegal entry—and quickly. “After the Biden administration introduced humanitarian parole programs, Border Patrol encounters declined by 92% for Cubans, Haitians and Nicaraguans as a group between December 2022 (the month before the parole programs started) and November 2023 compared to an 18% increase for nationals of non-parole countries,” according to an NFAP report.

Biden officials limited the parole programs to 30,000 nationals monthly from each country. Individuals must have sponsors, are required to fly into the United States and can obtain employment authorization.

After a court rejected an attempt to stop the programs, the Biden administration should feel confident in expanding humanitarian parole, and it could do so in two ways. First, the administration could raise the 30,000 monthly ceiling for Venezuelans, whose government’s economic and human rights policies have created more refugees than Russia’s invasion of Ukraine.

Second, the administration could expand the humanitarian parole programs to more countries. If the parole programs included the top six countries for Border Patrol encounters in recent months, and illegal entry dropped similarly to those of other countries eligible for humanitarian parole, illegal immigration at the southwest border would decline to low levels.

America needs workers. A recent study by economist Madeline Zavodny concluded that the slowdown in the working-age foreign-born starting in 2017 under Donald Trump’s immigration policies (and compounded by COVID-19) likely shaved off a significant amount of real GDP growth in 2022. Real GDP growth, or economic growth, is needed to improve living standards.

Zavodny, an economics professor at the University of North Florida, found that U.S. real GDP growth was lower by an estimate of up to 1.3 percentage points in 2022. In other words, the growth rate was only 1.9 percent but could have been as high as 3.2 percent if “the working-age foreign-born population had continued to grow at the same rate it did during the first half of the 2010s.”

Congress should create temporary work visas for year-round jobs in sectors like hospitality and construction to complement the current seasonal visas that cover jobs mostly in agriculture and summer resorts. 

The loudest voices in the room are usually not the ones with the best solutions. On immigration policy, those shouting have called for more enforcement measures, even if such policies are ineffective. The Biden administration should focus on a policy that has worked by expanding humanitarian parole programs and other legal pathways.

Stuart Anderson is executive director of the National Foundation for American Policy, a nonpartisan policy research organization. He served as executive associate commissioner for policy and planning and counselor to the commissioner at the Immigration and Naturalization Service from 2001 to 2003.

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