President Biden’s Immigration Plan Revisited

By Matthew P. Daley

In an essay printed in the Chesapeake Observer earlier this year, I set forth what was then known about President Biden’s immigration policies.  At that time, I expressed foreboding that a central tenet of the Administration’s plan was to create “an open border” although that phrase was not explicitly used.  Nine months later, taking stock is appropriate.   As a Washington Post editorial stated recently, “In its apparent desperation to fashion an immigration strategy that will impose order on increasingly out-of-control migration, the Biden administration has unleashed a torrent of words and goals untethered to specific policies and timetables.”  Similar assessments have appeared in the Wall Street Journal, the New York Times and other mainstream publications.  Without a clear plan to address the immediate crisis, the result is the highest level of illegal border crossing in decades. 

Despite the Administration’s constant avowals that our southern border is secure, these startling facts speak for themselves:

• August of 2020 under the Trump Administration, the Border Patrol apprehended over 47,000 illegal migrants of whom 10 were released to the interior of the US.  In August 2021 under Biden Administration policies, the Border Patrol made 195,000 arrests.  Of these, 43,941 were released into the US without benefit of COVID 19 tests, let alone vaccinations.  At the same time, sharply increasing numbers of American citizens are subject to federal vaccine mandates.

• Migrant deaths have reached a new record with some 557 recorded in the 12 months ending in November 2021.  Rescues of imperiled and lost migrants by Border Patrol Agents numbered 12,854 which was twice the previous record established in 2020.

• Estimates of the number of illegal border crossers in the past year who evaded apprehension vary from 400,000 (the official count) to over a million (probably closer to the truth).  These numbers include not only migrants, but an unknown number of criminals.  This population is apart from those asylum-seekers who were admitted for future adjudication of their claims.   

In sum, a record 1.7 million migrants (mostly from Mexico and Central America but including people from as far away as South and East Asia) attempted to enter the United States illegally in the past twelve months.  By way of contrast, in 2019 —  the last year for which data are available — 1.03 million legal immigrants entered the US. 

• Unwilling to hold migrants who claim asylum, Catch and Release has been reinstated.  The problem is that barely half of those released appear for their adjudication hearings and of that population, and only about 15% of the asylum claims are approved.  Put otherwise, 85% of those released don’t qualify for asylum under US and international law.  

• At the same time, the Administration has restricted the ability of law enforcement to apprehend those who miss their adjudication hearings, thus this group that constitutes millions of illegal immigrants become long-term residents despite their irregular status.

Ordinary Americans recognize the magnitude of this disaster.   In a September survey of registered voters, 55% disapproved of Biden’s handling of the immigration crisis and 47 % saw illegal immigration as a critical threat to the United States.  While 68% of Democratic voters approved of Biden’s handling of immigration issues, 59 % of Independents disapproved and, unsurprisingly, 89% of Republicans disapproved.  These ratings have fueled disagreements within the Administration on how to manage the problem.  

The irony, of course, is that in its haste to overturn Trump’s policies on refugees and migration, the Biden Administration has adopted policies that have been perplexing, inconsistent, and corrosive to its stated goals and credibility.  Its start was inauspicious.  After condemning Trump’s low refugee admission ceiling for FY-2021 during the campaign, the Biden Administration had to be bludgeoned by advocacy groups into raising the ceiling, something it could do without seeking congressional approval and that was supported by Americans across the political spectrum.

Subsequently, the return to Catch and Release effectively raised that ceiling by an order of magnitude, adding another turn to the cycle of changing policies.

The Administration told populations in Mexico and Central America “not to come” even as it dismantled the deterrent policies that Trump put into place. Aspiring migrants are swayed by what is done far more than what is said, so that the numbers crossing the border surged.  Doubtless no one – American or aspiring migrant – believed Homeland Secretary Mayorkas and White House spokesperson Jan Psaki when they maintained that there was “no crisis” and that “the border was secure” when they could see the opposite on the evening news.

The question now is whether the nascent attempt by some in Biden’s team to tighten law enforcement and deterrence efforts will continue.  Even here, the message is muddled.  For example, the Administration when confronted in September with 12,000 Haitians at our border with Mexico moved quickly to deport 8,000 while allowing some 7,000 to enter the US.  How the Biden team was able to immediately sort out those who should be allowed to remain in the US while the deporting the others is a mystery.   Nonetheless, the deportations appear to have had a deterrent effect.  The number of Haitians migrants attempting to cross the border in October fell by 90%.

In another move, after canceling the Migrant Protection Protocols, an agreement that Trump made with Mexico to keep migrants to remain in Mexico while their asylum claims were decided, the Biden team is now negotiating with Mexico to restore it.   At the same time, the Administration has told ICE that it cannot arrest illegal migrants in a number of specified locations, a dispensation not offered to Americans.   These areas include schools, medical facilities, places of worship, daycare centers, recreation centers, food banks, disaster areas, funerals, public demonstrations and more.  Moreover, ICE personnel have been ordered to seek prior approval to arrest illegal migrants in many categories including those who have arrest records for offenses such as drunk driving.

The lack of deterrence can only have increased Mexico’s unwillingness to resume the Migrant Protection Protocols when finally asked.  With the massive increase in numbers trying to reach the border, apprehending and housing them in Mexico would be an even greater burden.

On one issue at least, Biden was not served well by his team which apparently failed to brief him on negotiations with lawyers for migrant families that were separated from their children under Trump.  That failure caused Biden to disavow sarcastically news reports that such negotiations were underway, only to backtrack the following day.  When Americans realized that each individual in this cohort could receive up to $450,000 for damages while the family of a US military member receives but $100,000 when killed in action, their stomachs soured.  Again, the attraction of entering the US illegally and then getting in on the legal action could only increase the numbers of migrants. 

One thing is, I think, clear.  The Biden immigration muddle will not be forgotten in November of 2022 and perhaps not in November 2024.  Immigration is already difficult issue to manage without the complications of self-inflicted wounds.