The Biden administration has been using a carrot-and-stick strategy to reduce illegal border crossings. It couples an expansion of legal pathways to the U.S. with adverse consequences for those who don’t use them.
Migrants who enter illegally instead of taking advantage of a legal pathway may 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. A federal judge just rendered a decision blocking Biden’s asylum policy, but his decision is likely to be appealed.
Legal pathways
The administration has established new border enforcement actions to leverage the success of its Venezuelan enforcement initiative.
The initiative permitted certain Venezuelans who arrive by air to be paroled into the United States lawfully instead of having to make an illegal border crossing on the Southwest land border. This apparently produced a 98 percent drop in Venezuelans arriving at the Southwest border, which appears to have been a factor in the steep decline in illegal border crossings.
The new enforcement actions expanded the Venezuelan enforcement initiative to include nationals from Cuba, Haiti and Nicaragua. The total number of parole grants was raised to up to 30,000 a month, which would be around 360,000 per year.
Participants must have a supporter in the United States who has agreed to provide them with financial support for the duration of their parole in the United States, and they must clear security vetting and meet other eligibility criteria.
The enforcement actions also expanded the CBP One mobile application to permit migrants without visas or other valid entry documents to schedule an appointment to present themselves for inspection at a designated port of entry and initiate an asylum application.
The number of appointments available has increased from 1,000 per day to 1,450, which amounts to around 530,000 per year.
Unlawful crossings between ports of entry on the Southwest border have declined by 64 percent.
But at what cost?
The undocumented migrants who are paroled into the country are not safe from deportation, and they are a major problem for our already overwhelmed asylum system.
Parole is not a pathway to permanent resident status. It is granted under INA section 212(d)(5)(A), which provides that parole “shall not be regarded as an admission.” When the purposes of the parole have been served, the immigrant shall “be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States.”
The immigration status of those the administration paroles into the country will revert back to that of migrants seeking admission without a visa or other valid entry document when their parole periods expire — unless, of course, they are granted asylum or obtain lawful status on some other basis.
In addition to the parolees as of the end of March, the administration had released more than 2,045,992 illegal border crossers into the country; as of January 2023, there have been 1.2 million “gotaways” during the Biden presidency. Gotaways are illegal border crossers who are detected but not apprehended.
This doesn’t include the 3.9 million undocumented migrants who have been apprehended entering the U.S. unlawfully at places other than the Southwest border.
Will asylum save them?
That’s a possibility, but only if the administration puts them ahead of the undocumented migrants in the United States who have been waiting a very long time for a hearing. Such a system is likely to be overwhelmed.
The Migration Policy Institute (MPI) released a report this month that indicates the immigration court has reached a breaking point. Asylum seekers wait an average of four years for a hearing to be scheduled and even longer for a final decision.
This is preventing migrants who can establish asylum eligibility from obtaining relief in a timely manner; those who can’t are not likely to be returned to their own countries. The backlog also impedes the proceedings required for removing deportable migrants.
According to TRAC statistics, as of the end of June 2023, the immigration court had 2,401,961 active cases in its backlog, and it is not making progress on reducing it. It has received 924,099 new cases so far in fiscal 2023, and it has completed only 480,879 cases.
The administration plans to surge more USCIS asylum officers to the border to assist in processing migrants who claim to be asylum seekers, but USCIS does not have enough asylum officers to handle its own asylum applications.
USCIS adjudicates “affirmative” asylum applications, which are submitted by migrants in the United States who are not in removal proceedings. The asylum applications of migrants who are in removal proceedings are considered “defensive” because they are applying for asylum to prevent the government from deporting them. According to the CIS Ombudsman’s Annual Report 2023, increases in the number of affirmative asylum applications have resulted in a backlog of 842,000 cases that is projected to grow to a million cases by the end of calendar year 2024.
Application processing times are “likely approaching a decade.”
The administration has transferred asylum officers who were handling affirmative asylum applications to the border to conduct credible fear screenings for recent border-crossers. This “depletion of resources to the Southern border” has “continued to impact the affirmative caseload and the agency’s ability to chip away at it.”
MPI’s report concludes that the combination of years-long backlogs and unlikely returns is at the heart of our broken asylum system, and that “[t]hat brokenness contributes to the pull factors driving today’s migration to the U.S.-Mexico border, thereby undermining the integrity of the asylum and immigration adjudicative systems, and immigration enforcement overall.”
I agree — and it is only going to get worse if the administration doesn’t find a better way to reduce illegal border crossings.
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 at: https://nolanhillop-eds.blogspot.com