Biden’s plan to address migrant surge may make it worse

The Biden administration has announced its plan for dealing with the surge in illegal border crossings that is expected when the Title 42 order is terminated on May 11. It has estimated that illegal crossings could reach as high as 18,000 a day.

The plan is supposed to reduce unlawful migration, expand lawful pathways for protection and facilitate safe, humane processing of migrants.

For instance, it will increase the availability of relief from persecution outside of the United States by establishing regional processing centers. I have been recommending this approach for more than 10 years.

The plan may reduce the number of illegal crossings, but that will depend on how it is implemented. And its emphasis on expanding legal pathways might greatly increase the number of asylum seekers, which would be a major problem for our already overwhelmed asylum system.

Here are some highlights of Biden’s plan:

Stiffer consequences: Migrants who enter illegally generally will be processed in expedited removal proceedings. If they are deported, they will be barred from reentry for five years and be presumed ineligible for asylum absent an applicable exception.

Other than the presumption of being ineligible for asylum, these aren’t new measures.  That the administration hasn’t made much use of them before makes me wonder whether it really intends to do so now. And we don’t know yet how the presumption of ineligibility will be applied.

CBP One: Migrants outside the U.S. will be able to use the CBP One mobile application to schedule an appointment to present themselves at a port of entry. This is not a new program. It is an expanded version of the CBP One program that the Trump administration established.

Asylum advocates have called CBP One a glitchy app that has failed to provide enough appointments to help the large number of desperate migrants seeking sanctuary in the U.S. The app offers about 740 appointments per day.   

Also, concerns have been raised about the app’s privacy implications. CBP’s privacy policy permits personal data collected from users to be disclosed for law enforcement purposes.

Increase the number of refugees from the Western Hemisphere: The administration will increase resources and staffing for the U.S. Refugee Admissions Program in this region. This is in addition to accepting up to 30,000 migrants per month from Venezuela, Nicaragua, Cuba and Haiti in its expanded parole program.

The increase in refugee numbers will not impact the asylum system in the United States, but the parole program could add up to 360,000 asylum seekers a year to our already overwhelmed asylum system.

Open regional processing centers across the Western Hemisphere: Migrants in the Western Hemisphere will be able to make an appointment to visit the nearest processing center for an interview with immigration specialists, and, if eligible, be processed for refugee resettlement or other lawful pathways such as parole programs, family reunification or existing labor pathways. 

My recommendation was to expand the CAM program, which screens qualified children in El Salvador, Guatemala and Honduras, to determine whether they may be eligible for refugee status with possible resettlement in the United States. The CAM program doesn’t have to be limited to children, or to those countries. It should be available to anyone who has a persecution claim, in as many countries as possible.

Increase removals of migrants here unlawfully: The administration has scaled up the number of removal flights. The plan says that illegal crossers who fail to qualify for protection should expect to be deported swiftly with at least a five-year bar to returning. 

This contradicts the administration’s prior immigration enforcement policies. Moreover, the man who will expected to enforce the new policy, Department of Homeland Security (DHS) Secretary Alejandro N. Mayorkas, has said, “The fact an individual is a removable noncitizen will not alone be the basis of an enforcement action against them.”  

Migrants in expedited removal proceedings: The administration is increasing its holding capacity for expedited removal proceedings. It also will install hundreds of phone lines and privacy booths to conduct credible fear interviews, and increase access to counsel. Moreover, it is urging U.S. Citizenship and Immigration Services (USCIS) asylum officers and immigration judges to complete immigration proceedings at the border more quickly.

The administration could have used expedited removal proceedings to a much greater extent before. In fact, it ended the previous administration’s expanded use of such proceedings.

Also, the last-in-first-out approach the plan takes benefits new arrivals, but it is unfair to asylum seekers who are already in the U.S. waiting for a chance to present their asylum claims.

Backlog crisis: The CIS Ombudsman’s Annual Report 2022 states that USCIS has a backlog of more than 430,000 affirmative asylum applications. These are applications filed by migrants who are not in removal proceedings. The applications submitted to an immigration judge in removal proceedings as a defense to deportation are referred to as “defensive” asylum applications.

The immigration court has a backlog of around 2.1 million cases. The average asylum case will take about 4.2 years to complete. And these numbers do not include the asylum seekers the administration has released into the country who haven’t yet been put in removal proceedings.

The immigration court disposed of 172,180 cases in the first four months of fiscal 2023, which puts it on track to decide nearly half a million cases this fiscal year. 

But the number of new cases being added to the court’s calendar has reached record highs too. DHS initiated 800,000 cases in removal proceedings in 2022; and it has initiated 329,380 in the first four months of fiscal year 2023.

If the administration continues to encourage asylum seekers to come here with its parole programs and lax enforcement measures, it won’t be possible to bring the asylum backlogs down to reasonable levels. Even without any new cases, the immigration court would need more than four years to eliminate its backlog.

The plan should be revised to ensure that it will reduce the backlogs in our immigration system instead of increasing them. 

Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.  Follow him here.