Since President Joe Biden took office, conservative media outlets have sounded a steady alarm about the number of migrants arriving at the southern border. Beginning January 2021, more and more people — in fact, tens of thousands more — started showing up at entry points across the border.
In January of this year, the New York Post declared that Biden was “rolling out the welcome mat” for illegal migrants, “spending our tax money on hotel stays, debit cards and cellphones.” Brietbart cited a report from the Federation for American Immigration Reform stating that the rough equivalent of the entire population of Ireland had illegally entered the United States in Biden’s first 18 months.
While outlets like The New York Times, The Washington Post and NBC continued to cover the issue, immigration didn’t get the same top-of-the-fold attention during Biden’s term.
That all changed in September, when Republican Gov. Ron DeSantis of Florida flew dozens of migrants who recently crossed into the United States from Mexico to Florida. The following day, Greg Abbott, the governor of Texas, sent two buses full of migrants to the residence of Vice President Kamala Harris in Washington, D.C. These publicity stunts, designed to score points against Democrats in the runup to high-stakes midterm elections, occurred as federal data was released showing that, for the first time ever, more than two million migrants were detained at the border in a single fiscal year.
According to DeSantis, Abbott and a host of conservative pundits, Biden and his policies are to blame for the surge in immigration. He has “gone full open borders,” the New York Post editorial board declared in August. The Biden administration has “broken the (immigration) system … beyond repair,” Chad Wolf, the former acting secretary of homeland security, told Fox News. Simon Hankinson, a senior research fellow at the Heritage Foundation, accused the president and his Secretary of Homeland Security Alejandro Mayorkas of essentially having “decided not to enforce the law,” adding that the current surge in migrants is “90-percent attributable” to the Biden administration.
Biden and fellow Democrats have also taken criticism from the left for not living up to campaign promises. That doesn’t help going into the midterms, where Republicans have an edge on the most critical issues of this election cycle, which mostly revolve around the economy. A recent poll from Pew Research Center found immigration to be the 10th most important issue for registered voters.
But if Republicans take the House as expected, the pressure on the Biden administration will only rachet up to address what’s happening at the border, which undoubtedly has become a crisis.
The number of immigrant encounters by border officials in the past 11 months may be extraordinary, but the ebb and flow of migrants has been going on for decades, as has the effort to score political points on the issue. As one expert told me, the fact that immigration and border policy are electoral issues at all almost presupposes they’ll never truly be fixed. And yet, as Texas Sen. Ted Cruz tells it, the “problem” of immigration had largely been solved under former President Donald Trump, whose controversial border security policies have been the subject of intense debate, as have Biden’s efforts to undo them. As that debate roils, experts say the evolving nature of migration at the southern border is straining the country’s immigration system to the breaking point. Fixing it may require a fundamental shift in how we think about the people coming here in search of better lives.
Encounters with migrants by the Border Patrol serve as the most concrete evidence of immigration activity at the southern border. Reports of those incidents dropped precipitously in the wake of the Great Recession, reaching lows under the Obama administration not seen since the early 1970s. They bottomed out to just over 300,000 in 2017, the first year of the Trump presidency. Trump took a hardline stance on immigration during his run for the Oval Office, and it’s been suggested that his tough rhetoric may have discouraged illegal border crossings.
The lull didn’t last. In 2019, even as the Trump administration instituted its Migration Protection Protocols, known as the “Remain in Mexico” policy, migration encounters skyrocketed to more than double the previous year’s numbers. Since the mid-2010s, migrants at the southern border have increasingly sought to enter the U.S. under asylum, said Theresa Cardinal Brown, managing director of immigration and cross-border policy at the Bipartisan Policy Center.
“We continue to try to figure out new ways to do the same thing, and it’s not working.”
Under Title 8, the section of U.S. legal code governing asylum, immigrants claiming political protection from persecution in their home country, after passing an initial screening interview, are held in custody or allowed to enter the country and stay here while their claims work through the courts. That process often takes several years or more.
Remain in Mexico tweaked Title 8 by sending asylum-seekers back into Mexico to await their day in court. The policy repulsed nearly 70,000 migrants before Biden suspended it during his first few days in office, to the consternation of many on the right, such as Texas Attorney General Ken Paxton, who hailed the policy as “a massive success.”
After its own journey through the court system, Remain in Mexico was struck down this summer in a 5-4 Supreme Court ruling. Migrants seeking asylum once again have the legal right to enter the country and establish themselves here while they wait for their cases to be adjudicated, a fact that irks Hankinson.
“Essentially,” he says, “(migrant asylum-seekers) get all the benefits of being U.S. citizens or legal immigrants, but without literally any of the cost, because asylum applications are free. Meanwhile, you’ve got millions of people in the pipeline overseas who have paid their fees, done their medical checks, and they’re waiting their turn to immigrate legally.”
The fact that migrants have to apply for the privilege of asylum by surrendering themselves to law enforcement agents at the border does not necessarily make their method of entry illegal. Rather, and for better or worse, they are trying to make use of a piece of the U.S. immigration system, if not as it was intended, then at least as it has been applied. Since 1980, more than three million migrants have been admitted into the country under Title 8.
When the Covid-19 pandemic erupted in March 2020, Trump and his legal team found another immigration enforcement tool in a little-known provision of American health law. Title 42 is a public health order established in World War II to prohibit entry to the U.S. when the Centers for Disease Control and Prevention believes there is a serious danger of a communicable disease entering the country. Approximately two million migrants have been expelled from the border under the policy. This year, roughly equal numbers of migrants have been expelled by Title 42 as were processed under Title 8.
Biden initially extended Title 42, but has since sought to end the policy. More than 20 states sued the administration to prevent it from doing so. A federal judge in Louisiana granted that injunction in May, and Title 42 continues to be used to expel migrants by the tens of thousands every month.
In 2022, more than 2 million migrants have been detained at the U.S. southern border, a record.
According to the left-leaning American Immigration Council and experts on both sides of the immigration debate, Title 42 has also inflated the number of migrant encounters at the southern border by between 25 and 50 percent. People expelled under the policy often make subsequent attempts to cross. Unless they successfully evade Border Patrol agents, they’re stopped again, expelled again, and once again added to Customs and Border Protection’s tally.
The ACLU and the aid group Doctors Without Borders claim Remain in Mexico and Title 42 have both had a devastating impact on people seeking a better life in America. Immigrants forced back from the border into Mexico often live in squalid conditions. In the first two years of the Biden administration, the nonpartisan Human Rights Group documented nearly 10,000 cases in which migrants turned away at the border were kidnapped, extorted, raped, robbed, tortured and subjected to other violent attacks in Mexico at the hands of cartels, petty criminals and even Mexican law enforcement.
Dylan Corbett, the founding executive director of the HOPE Border Institute, says Title 42 often forces migrants to forgo the official processes of crossing the U.S.-Mexico border. Instead, they resort to “less safe” ways of immigrating, he said, adding that policies like Title 42 and Remain in Mexico feed Mexico’s cartels, who have diversified their criminal efforts to include human smuggling and trafficking.
Nearly all of the migrants who show up at the U.S.-Mexico border in recent years have been processed by Customs and Border Patrol either as asylum-seekers under Title 8, or they’ve been expelled under Title 42. That’s a new development in the history of immigration and border security, says Cardinal Brown of the Bipartisan Policy Center. Prior to 2014, and regardless of the number of encounters at the border, the data show, she said, that 90-plus percent of migrants at the southern border were adult Mexicans trying to evade detection and enter the country illegally in search of work. Increasingly though, immigrants—especially the vast numbers of them arriving from the Northern Triangle countries of Guatemala, Honduras and El Salvador—voluntarily turn themselves over to Border Patrol agents seeking asylum, including more than a million this year. That change in migration patterns has strained America’s immigration system to the breaking point, says Cardinal Brown.
Since 2014, the majority of migrants at the southern border — including tens of thousands of unaccompanied children — aren’t coming from Mexico, but from the Northern Triangle. They’re being pushed out by economic insecurity, corrupt governments, violence and rampant crime, all conditions that can be traced back directly to American influence in the region. They’re being pulled north by the prospects of a better, safer, more prosperous quality of life. In other words, they’re looking for the American dream.
Cardinal Brown says more and more migrants voluntarily turn themselves over to Border Patrol agents in order to claim asylum under Title 8. This year, more than a million people have arrived at the border seeking asylum protection. All of them need to first be interviewed to determine the validity of their claims. Many but not all of those claims are granted immigration cases, and all of those cases must be decided in court. According to Cardinal Brown, these changes in migration patterns have strained America’s immigration system to the breaking point.
“Our processes, our facilities, our infrastructure; everything that we designed to enforce immigration law at the U.S.-Mexico border was designed for a population that was trying to evade capture,” she says. “They were Mexicans, so we could send them back to Mexico pretty quickly. This change in who is coming, and the fact that many of them are asking for asylum or are unaccompanied children, who have to go through some kind of court process, means that all of these processes, procedures and infrastructure that we designed basically for a quick turnaround, no longer apply, and it has overwhelmed everything.”
At the end of July, the country’s immigration courts faced a backlog of more than 1.8 million asylum cases. The time and effort needed to initially process those claims has put a strain on CBP’s resources, forcing it to divert agents from their patrols to assist with asylum screenings. Many of those agents have understandably reached the point of empathy fatigue. They’re cracking, just like the system that employs them. What that means, Cardinal Brown says, “is that we continue to be in crisis mode. And yet, we continue to try to figure out new ways to do the same thing, and it’s not working.”
Shortly after his inauguration, President George W. Bush announced his first trip out of the country would be to Mexico. Bush had run on a platform of “compassionate conservativism” and had touted fixing America’s broken immigration system, a top priority as far back as 1999 when he was stumping for votes in California, Arizona, New Mexico and Texas.
In February 2001, Bush made good on his campaign promise, traveling to the ranch of newly elected Mexican President Vicente Fox. They talked up what they had in common, their deep mutual respect and their determination to work together to solve border issues.
Six years later, Bush’s immigration reform bill failed, largely due to opposition from members of his own party.
Fast forward to 2008. Then-candidate Barack Obama promised Univision’s Jorge Ramos he’d send a comprehensive immigration bill to Congress within his first 100 days. That didn’t happen, and by 2016, The New Yorker was taking Obama to task for failing to keep his promises to immigrant families.
The evolving nature of migration at the southern border is straining the country’s immigration system to the breaking point.
The last meaningful reform to U.S. immigration policy was passed by Congress in 1986. Since then, calls from both sides of the political aisle for reforms to meet the current challenges facing the system have come to nothing. Increasing partisanship in American politics likely means any hope for such reform remains dim. In Cardinal Brown’s opinion, Democrats and Republicans have “homogenized around opposite positionings” on immigration, and those stances have delivered some amount of electoral advantage. As she told me, “Once it’s become an electoral issue it’s harder to get people together to pass bills and solve it, because if you solve it, then you don’t have that issue to blame the other party about.”
Changes to the country’s immigration and border security policy are more likely to resemble Remain in Mexico and Title 42, tweaks to enforcement and the handling of migrants instituted by executive action rather than congressional consensus. Hankinson of the Heritage Foundation would like to see the creation of a new legal authority similar to Title 42 that would allow Customs and Border Patrol to immediately expel migrants while also providing them a way to register their claims for asylum in Mexico or in their home countries.
Cardinal Brown agrees that processing asylum-seekers outside of the U.S. would help reduce the number of migrants at the southern border. Among other provisions, she would like to see expanded work visas to help meet the labor shortage in America, and a quicker process for handling asylum claims.
Dylan Corbett of the HOPE Border Institute says it should be acknowledged that, regardless of the policies America puts in place to protect its borders and limit immigration, people will continue to come. They’ll come no matter how grueling the trek, how high the walls, how many agents or drones patrol the border, and no matter how harsh the penalties for trying to cross. They come because something is fundamentally wrong in their home countries. War, violence, persecution, corruption, poverty, lack of services and opportunity. Faced with those challenges, many flee north, pulled by America’s promises of safety, stability, freedom, good pay, job prospects, the resources to meet their needs, in short, a better life.
There are many — including Biden and his administration — who have said that to reduce immigration, we need to address its “root causes” by working to ameliorate conditions in countries people are fleeing, ensuring greater stability there and giving people less reason to leave. Narrowing the gulf between the haves and have nots of the world, however, is a big ask and a heavy lift, especially during a time of mounting global economic challenges. Shortly after he took office, Biden sent a comprehensive immigration reform bill to Congress that included $4 billion in funding to address the root causes of immigration in Central America. A year and a half later, the bill remains stalled in a congressional subcommittee.
It is a near certainty that people will continue showing up at the southern border. So, how then are we to respond? Corbett has an idea, but it isn’t a political or legal policy — it’s a moral challenge. He suggests that when people come knocking on the country’s doors, we shouldn’t turn them away: We should welcome them. He lives and works in the border town of El Paso, Texas, and he says, “We’re better people when we welcome the other. We’re transformed by the reality of immigration in a positive way. We live that on a human level every day on the border. Immigration has strengthened us and ennobled us and enriched us. There’s nothing to fear.”
As of September, the new record for migrant encounters in a single fiscal year stands at over 2.1 million, with still a month to go.
Correction: An earlier version of this story incorrectly stated the number of migrants repulsed by the Remain in Mexico policy. It should be 70,000 not 700,00 as originally reported.