Biden's Unserious Approach to the Border

KEY TAKEAWAYS

• The Biden border crisis continues to worsen, with people caught illegally crossing the border a record 239,416 times in May.
• Despite the historic numbers of crossings, the Biden administration is intent on playing politics rather than trying to solve the crisis.
• The administration’s “plan” to solve the border crisis involves getting rid of Title 42, diverting law enforcement resources to process illegal crossers, and further burdening an immigration system that is already backlogged for years. 

President Biden’s border crisis continues unchecked. In May, U.S. Customs and Border Protection caught people illegally crossing our southern border 239,416 times, another record for the Department of Homeland Security. Focused on political talking points rather than policy solutions, the Biden administration refuses to implement a coherent strategy to end the chaos at our border. Instead, it is looking to undermine CBP’s law enforcement mission and make it easier for people to pursue fraudulent asylum claims. It continues to try to repeal Title 42 on the border, which will make processing illegal crossers much more complicated.

Encounters at the Border with Title 42 in Place

Rescinding Title 42: A slow motion car wreck

The Biden administration is pushing forward with a scheme to rescind Title 42, the public health authority that allows CBP to quickly expel many illegal immigrants caught crossing the border. Despite bipartisan criticism, it has not offered a comprehensive plan to deal with the problems that decision will cause. The best the administration could do was to author a memo outlining how it would reprogram money and resources from DHS while ignoring the real cause of the problem: the administration’s lax enforcement of immigration laws.

The chaos that would result from rescinding Title 42 without a plan to protect our border and re-establish rule of law in our immigration system is immense. In May, there were 100,699 illegal crossings processed under Title 42 for immediate expulsion. Of those 90,650 were single adults. The other 138,717 were processed under Title 8, the traditional immigration statute. Title 8 in some cases results in quick expulsion, but many illegal immigrants claim they have a “credible fear” of returning to their home country. They are put into a years-long asylum process that results in many of them being released into the U.S. while their cases are pending. Out of every 100 people who claim credible fear at the border, U.S. Citizenship and Immigration Services will find credible fear in 83 cases. Of those 83 cases, only 45 actually will end up applying for asylum, and 14 are ultimately granted asylum. Many people who go through the process never show up to their hearings or actually file an asylum application at all.

If the Biden administration eliminates the Title 42 option, the only remaining path will be Title 8, and the resulting surge of illegal immigration will far exceed the capacity of the system – even more than it already does. The immigration court system is already facing a backlog of 1.8 million cases. Many of these cases involve people with questionable asylum claims who are released into the U.S. while they await their hearing. This is contrary to the statutory requirement to generally detain them while their asylum claim is under consideration.

The administration’s answer to this problem? Proposing a rule empowering USCIS asylum officers to usurp the role of immigration judges and make asylum determinations themselves. Following this logic, the backlog will sort itself out if you stop following the law. In reality the opposite is likely to occur. Under this new rule, the potential for people with questionable or fraudulent claims to receive asylum in the United States could grow dramatically. It would also expose USCIS to lawsuits on due process grounds from anyone whose application was rejected, creating even more burdens on the courts.

While the administration undermines current law and the immigration system with this new rule, it also has proposed cutting detention space and funding for U.S. Immigration and Customs Enforcement. ICE is the agency that is supposed to keep illegal immigrants in custody during this process and to physically remove people whose asylum claims are rejected.

Realistic solutions are within reach

Policies implemented by the Trump administration like the Migrant Protection Protocols and Asylum Cooperative Agreements enlisted the help of other countries in the region to reduce the number of people trying to illegally cross our southern border. We could also deter people from making the dangerous crossing if we increase funding for law enforcement at the border, build up the capacity to detain illegal immigrants who break the law, and begin fully enforcing our immigration laws. We could also invest in strong border security infrastructure and policies, such as expanding our use of walls, barriers, and technology to regain control over the border. Only after we stem the tide of people trying to cross the border illegally will our immigration system be able to start dealing with the damage the Biden administration has inflicted upon it.