As unauthorized border crossings reach record levels, and Donald Trump cynically angles to keep the issue a flash point for the election, questions about the border and migration abound— alongside a great deal of misinformation.
Today, I want to address some of the biggest questions and misperceptions around migrants and the state of our border and the asylum process.
For example:
Do we have a true migrant crisis, or is this something manufactured to scare us?
[Ed.As I have outlined in a previous post, our current level of immigration is high, but comparable to earlier waves of immigration in the past few decades.]
Has President Biden failed to act on immigration, as Republicans allege?
What are Republicans demanding, and is it realistic?
[Ed. Nothing but spew propaganda and lies, so No.]
Can’t Biden just “shut the border down” today if he wanted to?
[Ed. Absolutely not within existing law. And our treaty obligations (which are above all but our Constitution, legally) likely preclude any such thing.]
Given that Republicans list immigration as their number one concern, thanks to a non-stop drumbeat on Fox and from the Trump Campaign, let’s examine each of these issues in greater depth.
Is this a true migrant crisis?
According to data from the Office of Homeland Security, during President Biden’s term of office the U.S. southern border has recorded at least 6.3 million migrant encounters—both at and between official points of entry. That has resulted in more than 2.4 million migrant admissions into the country, most of whom are in “active removal proceedings”—meaning after a hearing, they can be removed from the country or raise asylum as a defense to stay.
This is admittedly a record number of migrant encounters for any administration. Moreover, in December there was a surge of migrants—a total of 225,000 encounters—at our southern border, the largest recorded in two decades. Only the year 2000 saw more in one month.
However, since that surge in December, the numbers have abated considerably. The New York Times reported today, for example, that thanks to diplomatic efforts between the White House and the Mexican government, which began in direct response to the surge in December, migration flows have fallen 50 percent in January, according to figures from the U.S. Customs and Border Patrol (CBP).
Moreover, according to the report, the CBP has removed, returned or expelled the majority of all migrants encountered at the Southwest border, and there has been stepped-up enforcement. As a result “Total removals and returns since mid-May exceed removals and returns in every full fiscal year since 2015.”
While the crossings are along the border with Mexico, most migrants originate from other nations, mostly from the Caribbean and Central and South America. Critics of Republican immigration policies have charged that their constant messaging around the border being “open” might actually be fueling misinformation and increased numbers of migrants attempting to make the trek.
There is a tendency to conflate removable, unauthorized migrants with legal asylum seekers. Migrants arriving in the U.S. hailing from one of four countries—Cuba, Haiti, Nicaragua and Venezuela—are part of the administration’s parole program, which grants preference for certain nations where there are large numbers of migrants escaping political chaos and persecution. As of November 2023, around 297,000 asylum seekers arrived from these nations last year.
If there is a crisis, it is that our asylum process remains underfunded and thus badly broken. Wait times are stretching now to more than two years, which acts as an incentive for people to attempt unauthorized border crossings. After all, somewhat crudely speaking, if migrants can make it in, it could be two whole years before there is a court order to remove them.
Many migrants eventually make their way to large U.S. population centers, such as New York, Chicago, and Denver, and this has placed a strain on resources as Democratic mayors and city councils seek to cope with the influx. The burden upon municipal resources, facilities and staff have caused a shift in sentiment within the party, with many Democratic leaders calling upon Biden to implement more stringent measures.
The surge in migrant crossings and the need to process millions of people for either possible removal or asylum also has placed an unprecedented strain on immigration officers and courts, as this chart shows:
The lack of resources for overworked courts and immigration staff, who cannot complete cases as fast as new ones are created, is generating a substantial backlog. The border funding requested by the Biden White House could go a long way toward alleviating the strain upon our courts and allow for faster processing, with a goal of reducing wait times from two years down to six months.
Has Biden failed to act on immigration?
The way the Republicans characterize it, Biden had taken zero actions around immigration and the border. But this isn’t at all true. According to the Migration Policy Institute, President Biden has taken 535 immigration actions over the first three years of his term, outpacing the 472 immigration actions taken in all four years of the Trump presidency.
Republicans are really accusing Biden of failing to crack down as hard as Trump did on unauthorized migrant crossings. But this was deliberate on the part of the Biden White House. The administration had hoped to incentivize orderly, legal pathways and crossings, even while discouraging dangerous, illegal ones. And Biden was keen to show he would adopt a far more humane policy at the border than his predecessor. But that approach has proved politically difficult.
For example, Biden had campaigned on lifting the Trump White House’s use of what’s called “Title 42,” which prevented migrants from being able to apply for asylum by permitting rapid expulsions. But court challenges and on-the-ground realities at the border hamstrung the administration and made it harder to fulfill that promise.
As a result, Biden switched gears and actually expanded Title 42 in late 2022 to cover migrants from more countries, while simultaneously pairing it with a new program that permitted migrants to apply for parole from outside the U.S. To help streamline and systematize the process, migrants seeking asylum would also have to use a CBP app to schedule their arrival at an official port of entry, rather than at an unauthorized point. This program has been met with mixed results.
While Title 42 was in place, the U.S expelled 2.8 million migrants for unauthorized entry. Today, rapid expulsions under Title 42 are no longer happening, and the White House instead has paroled more than two million migrants into the U.S. for later processing. This has contributed to the sense that Biden’s policy choices have exacerbated the problem rather than improved it. And as we saw earlier, the lack of funding from Congress, along with zero reform of the system over four decades, has also worsened the backlog of cases.
What are Republicans demanding, and is it realistic?
While no one, least of all Joe Biden, wants to preside over such a record number of migrant crossings, House Republicans’ demands are even more unworkable as a long term solution.
Speaker Mike Johnson had heard whispers about what the bipartisan border deal being hashed out in the Senate contained. And so in a letter to his colleagues last Friday, Johnson declared that the deal would be “dead on arrival” in the House, assuming the rumors about its measures were true.
Mike Johnson saying we can’t have additional border funding until crossings go to zero means that we probably shouldn’t allocate any more funds for police, jails and prisons until crime gets to zero.
In Johnson’s world, the U.S. border with Mexico, which stretches for nearly 2,000 miles, needs to be magically, hermetically sealed against all illegal crossings. Trump first laid out this MAGA fantasy with his proposal of a vast border wall that would be paid for by Mexico. That wall, of course, was never built during Trump’s administration, but the MAGA fever dream lives on in the House GOP immigration bill, H.R. 2, which would continue and expand work upon the wall.
Republicans continue to be without serious solutions to the border crisis they claim exists. When asked on Wednesday what steps could be done today to address the migrant situation, Rep. Jim Jordan (R-OH) mentioned three:
Move forward with impeachment of DHS Secretary Mayorkas;
Use the “power of the purse” to withhold funds for processing migrants and simply say “We’re not going to let any more migrants into the country”; and
Elect President Trump.
It doesn’t take much to see that this is just political posturing, and not a substantive plan to address the problem.
The bipartisan Senate bill, on the other hand, does contain a specific provision granting the President the power to close the border to unauthorized crossings should the average number in a given week exceed 5,000 per day—a number we are already well beyond.
Johnson and other extremists in the GOP have seized upon this number to declare that the bill does not go far enough, and therefore they won’t support it or even bring it to a House vote. But in truth, Johnson and others are simply eager to do the bidding of Trump, who wants to keep the migrant crisis brewing as a campaign issue.
To kill the bill, Republicans have distorted this proposed shut down provision by arguing that the bill would still allow up to 150,000 unauthorized crossings a month. But that’s simply not the case. The bill would grant an immediate right of the President to halt unauthorized crossings when they overwhelm the system, as they already are doing today. This is why President Biden has stated that, on the day he signs the bill into law, he will shut down the border—meaning, of course, all unauthorized crossings at non-approved entry points.
So, why can’t Biden shut down the border today?
Another Republican talking point is that Biden already has the legal authority to close the border to new migrant crossings and doesn’t need the new bill to do so. Speaker Johnson insists that Biden “falsely claimed” that he needs a new law from Congress in order to shut down the border to migrants. In support of this, Johnson cited a provision called Section 212f, which he claimed already grants the president broad rights to curtail immigration.
But Trump already attempted to restrict immigration back in 2018 under Section 212f, and he was shot down by the courts. An appellate panel found that such authority conflicts with existing asylum law, and that 212f cannot override that law.
Indeed, it isn’t even clear that, should the bipartisan border deal include emergency powers for the president to “shut down” the border to migrants, it would hold up in court. That’s because asylum law is pretty clear about who has legal rights to request asylum upon presentation of the request at the border. Biden may still press ahead, only to be shot down by the courts just as Trump was.
But at least, in Biden’s mind and the eyes of the public, this will mean he tried to solve it.
All this demonstrates that there is no particularly easy fix to the migrant issue. And unfortunately, it has now become badly politicized, to the point that Congress may end up allowing Ukraine to fall while the border debate rages.
In a troubling sign that Republicans’ posturing on the border is working with the American people, a recent Harvard CAPS-Harris poll found that immigration was listed as the top concern among voters at 35%, with inflation slipping to second at 32%.
If Republicans really want to see more removals of unauthorized migrants, they need to fund the legal system that could process all the backlogged cases. Until then, millions of migrants are in a legal limbo, and their numbers will continue to grow.
