Public discourse on the problem of undocumented migration across the southwestern border of the United States has grown increasingly heated, with two reasons standing out. First, the number of undocumented migrants has skyrocketed as the Biden administration has dismantled Trump-era policies Democrats considered inhumane. Second, nothing the administration has tried so far has stemmed the human tsunami surging up from the south. Progress on this incredibly divisive issue requires policymakers to face some hard realities and ask themselves some tough questions. What do immigration activists really want to accomplish? What can the proponents of tougher measures live with?
Critics of the Biden administration look at the border and see chaos, a de facto invasion, drug and human trafficking, threats to national security and a drain on the nation’s resources. They fear terrorists infiltrating the migrant tide and see confirmation of their fears in official acknowledgments that dozens of individuals on the terrorist watchlist have been stopped at the border. Furthermore, they argue that the dilatory enforcement efforts of the current administration make a mockery of the rule of law and cost the American taxpayer billions that should go to other urgent domestic priorities. Proponents of a more progressive approach to immigration, Democrat allies of the president, human rights activists and others argue that granting undocumented migrants the opportunity to plead their cases before a U.S. immigration court is, morally, the minimum we should be prepared to do for the suffering masses who brave the difficult journey from their countries of origin to the U.S. frontier. Blocking migrants from entering the country, they argue, is inhumane and inconsistent with our history and values.
Somewhat surprisingly, we may finally be approaching a point at which both political parties in the United States agree that our immigration system should be overhauled – urgently – even if they do not agree on what a new approach to the border crisis should look like. The Republican governors of states like Texas and Florida have complained for years about the burden of hosting substantial numbers of migrants. Recently the Democrat mayors of many major American cities – and most of the largest American cities are led by Democrat mayors – have also begun to complain that they cannot accommodate the growing numbers flowing into their communities and they can see the situation is getting worse.
According to the Center for Immigration Studies, the Biden Administration has released at least 2,020,522 migrants into the U.S. as of April 2023, with the numbers accelerating since. Some estimate that more than five million undocumented migrants have crossed the southern border since early 2021. The real number may be much higher as even Customs and Border Patrol acknowledge that hundreds of thousands have likely evaded U.S. authorities at the frontier. The Department of Homeland Security has recently confirmed that as many as 300,000 migrants were stopped at the border in December alone.
Writing in the Wall Street Journal (11/06/23), Nolan Rapaport has speculated that the undocumented immigrant population in the U.S. could double during a second Biden term absent a change in both policy and enforcement. This is, in part, because so many countries around the world are now generating significant numbers of migrants. There have been, for instance, five recent coups in sub-Saharan Africa. Is everyone who objects to living under an authoritarian military regime in Africa entitled to an immigration hearing in the U.S.? Should Russians who fear conscription into Putin’s military be considered eligible for asylum? Eighty percent of the capital of Haiti is now controlled by criminal gangs. How many Haitians should the U.S. be prepared to accommodate? Nearly 8 million Venezuelans have fled the repressive Maduro regime. The Biden administration has deported some but granted hundreds of thousands temporary protected status.
The circumstances generating irregular migration are frequently egregious. The problem is not that the concerns of intending migrants are not real. On the contrary, the fears of those who choose to leave their homes are often, undeniably, legitimate. Just coming from a difficult place, however, does not qualify one for asylum in the United States.
Although the Biden administration has repeatedly said to intending undocumented migrants “Don’t come,” huge numbers are now all but stampeding to the U.S.-Mexican border and not just from Latin America. Only a relatively small number are fleeing individually targeted persecution of a sort that would traditionally qualify for asylum status. Most are economic migrants or are fleeing generalized criminal violence, repression, political turmoil or wars. Some are fleeing the effects of climate change. They are not, however, individually targeted. They come despite the insistence of U.S. government officials that they should not because the possibility of even temporary residence in the U.S. is clearly preferable to what they left behind. Stories reporting on available U.S. government assistance programs, employment opportunities, and the receptivity of sanctuary cities all act as a magnet for migrants.
Policy makers need to understand that admission to the U.S. with permission to work and the promise of a hearing years into the future constitutes complete migratory success for those fleeing miserable circumstances at home. As their concerns are immediate, the possibility that asylum will be denied at some as yet unscheduled future hearing is not relevant. The possibility that U.S. assistance to their countries of origin will eventually improve life at home is not persuasive either.
Alarmed critics of the current dysfunctional situation often suggest just turning migrants around. This will not happen unless the bar for what are known as “credible fear” determinations is substantially raised. As Arthur R. Andrews has pointed out, writing for the Center for Migration Studies, in 1996 Congress granted the Border Patrol authority to deport undocumented migrants without an order from an immigration judge. Andrews notes that this authority was granted specifically to speed up deportations and “curb abuse of our generous asylum system…” In March of 2022, the Biden administration issued new regulations which charged “asylum officers” with adjudicating credible fear claims in “non adversarial interviews.” This effectively lowered the bar for a positive finding of “credible fear” which results in a referral to an immigration court. Once that happens, the asylum seeker gets paroled into the U.S. to await an order to appear before an immigration judge. The vast majority of those paroled are never granted asylum but, in the meantime, are permitted to live and work in the U.S. Arthur warned when the new regulations were issued, as he reminds us in an article published in December of 2023, that the change would dramatically swell the backlog of work for the immigration courts and that is exactly what has happened. Since 2022, positive determinations of credible fear claims resulting in referrals to immigration courts have spiked.
The change in regulation is not, of course, the only explanation for the surge in illegal migration. It is, however, part and parcel of an approach to the problem of illegal migration that implicitly takes as a given that the flood of undocumented migrants into the U.S. cannot be significantly diminished and therefore must be “managed.” It also tacitly assumes that virtually any story of suffering, deprivation and fear merits a hearing in the U.S. and that the parameters for determining who gets asylum in the U.S. as established in U.S. law are outdated.
It is clear that no reduction of the tidal wave of asylum seekers can be achieved without a sustained stiffening of enforcement. The U.S. also needs to improve its messaging on the issue. Senior spokespersons must make clear U.S. government’s determination to reestablish control of the border and that high rigorous standards for a “credible fear determination” will be applied at both ports of entry and when migrants are detained trying to cross while avoiding the Border Patrol.
At the same time, we must forge a genuinely workable arrangement with Mexico (which the Biden team has been trying to do but so far unsuccessfully). This will necessarily include making clear that the U.S. will enforce its law but remains committed to legitimate, expedited visa adjudication in support of our immensely important and multifaceted relationship with our Southern neighbor.
It is, nevertheless, important to realize that even these steps may not, in fact, reduce the hysteria in American public discourse. That is because the factors that compel so many to abandon their countries of origin are not in fact within our control. So, many will continue to troop to the border and seek the relative, even if temporary, safety of the U.S. It is also true that tough immigration enforcement will create ugly scenes on the border and in Mexico. Moreover, harsh treatment of those seeking refuge in the United States will resonate in very negative ways internationally, especially in Latin America, the region that still generates the greatest numbers of migrants. Some countries in the Western Hemisphere depend on remittances from their diaspora populations. Indeed, in Honduras, for instance, remittances account for over 20% of the country’s GDP.
At this point it is not at all clear the two sides of the debate in the United States even agree on the nature or severity of the problem. In a recent interview Secretary of Homeland Security Mayorkas refused to call the situation at the border a crisis, preferring the term “challenge.” We must do better than this. In the meantime, the nightly news coverage in the U.S. of thousands of undocumented migrants lining up to cross into the U.S. undermines confidence in the U.S. government’s ability to handle a problem that is now affecting virtually every region in the U.S. It is also eclipsing appreciation for the many benefits which legal immigration represents for our country.
