Biden’s New Southern Border Plan Might Just Work

The United States has faced recurrent migrant crises at its border with Mexico for a simple reason: The incentives are upside down. If would-be migrants show up at the legal points of entry, they are all but certain to be turned back. If they cross the border illegally, they stand a strong chance of staying in the United States. The predictable results have been recurrent surges of illegal crossings—sometimes in enormous numbers—that fuel the public perception of chaos at the border. It’s a perception Republicans will be eager to exploit in the run-up to the 2024 presidential election.

But the Republicans may not get that chance. In what may be the most delicate political high-wire act of a term that has been filled with them, U.S. President Joe Biden is trying to flip the script on immigration. Over the past several months, his administration has been opening the doors for hundreds of thousands of migrants to enter legally while dramatically shrinking the odds of success for those who illegally cross the border. It is hard to say who hates Biden’s new initiatives more—liberal Democrats who accuse him of turning his back on vulnerable asylum seekers, or Republicans who despise welcoming migrants that former President Donald Trump sought to push away. This balance of loathing suggests Biden might be on the right path.

The southern border has bedeviled U.S. presidents since Ronald Reagan’s time in office. The history is complex, but the motivations for migrants are not. In the 1980s and 1990s, large numbers of young Mexicans crossed illegally looking for jobs that paid four or five times what they could earn in the anemic Mexican economy. The U.S. Congress was unwilling to open new paths for legal migration from Mexico, and border enforcement was spotty. Entering the United States without permission was not difficult, so millions seized the opportunity. It took two decades and a massive build-up of agents, fencing, and surveillance technology—and the great recession in 2008—to bring the surge under control. Illegal crossings fell to a level that had not been seen since the early 1970s.

The numbers began to tick up again in 2013 and 2014 during the Obama administration—and then surged in 2019 under Trump’s watch. The mix of migrants was different, but the incentives for crossing illegally remained. In the face of growing gang violence and disorder in the Northern Triangle countries of Guatemala, El Salvador, and Nicaragua, many risked dangerous journeys through Mexico in hopes of receiving asylum protection when they made it to the United States. Under the 1980 U.S. Refugee Act, which reflects long-standing international practice, anyone setting foot in the country who presents a “credible fear” of persecution if they are returned home is entitled to remain in the United States and pursue asylum protection through U.S. immigration courts. The legal cases take years to resolve, so for those fleeing violence or simply seeking a better life the motivation to reach the United States and claim persecution is enormous. Unprecedented numbers, for example, are now crossing the Darien Gap—a treacherous maze of rainforest, mountains, and swamps between Panama and Colombia—on their journeys north.

Although asylum claims can be made at legal border crossings, the Trump administration set up a “metering” system that allowed just a handful of appointments each day and prevented many from reaching U.S. soil to file their claims. And during the COVID-19 pandemic, the U.S. Centers for Disease Control invoked Title 42—a decades-old but never previously used law to block the introduction of communicable disease—which since March 2020 has barred most migrants trying to cross the border at the legal ports. For those fleeing the Northern Triangle—in addition to large numbers recently leaving other countries, including Venezuela, Colombia, Cuba, and Haiti—virtually the only way to pursue an asylum claim was to cross between the ports. In the U.S. government’s 2022 fiscal year, which ended last September, more than 1.6 million migrants were apprehended illegally crossing the border, the largest number in more than two decades. In December 2022, more than 250,000 migrants were encountered at the border, shattering all previous monthly records.

In response, Biden is trying to change the perverse incentives driving illegal crossings and encourage migrants to enter the country legally. With Title 42 finally set to expire in early May, long after the end of virtually all other pandemic-related restrictions, the Department of Homeland Security has published a proposed rule aimed at preventing what is otherwise expected to be an even larger surge of migration. The stick is a big one: With some exceptions, the administration plans to reject asylum claims from anyone who crosses the border illegally. But the carrot is sizeable too: Since this January, as many as 30,000 migrants from the major sending countries of Cuba, Haiti, Nicaragua, and Venezuela are being admitted each month at the legal ports, as long as they have a U.S. sponsor to care for them on arrival. They can fly directly to the United States, forgoing the dangerous and costly journey across Mexico. For those already waiting at the border in Mexico, Customs and Border Protection has set up a new electronic sign-up system on an app called CBP One, which allows asylum seekers to make appointments for their claims to be heard.

The administration has been rolling out versions of the scheme over the past year, and it appears to be showing positive results. Under the Uniting for Ukraine initiative, the United States has admitted nearly 300,000 Ukrainian refugees, thousands of whom had been trying to reach the United States via Mexico. Ukrainians have been offered stays of up to two years under a provision known as humanitarian parole—once in the United States, they are eligible to work and to apply for asylum protection if they wish. The scheme was expanded to Venezuelans in October 2022 and then to Haitians, Cubans, and Nicaraguans in January. A key part of the new initiatives has been Mexico’s willingness to take back citizens of those countries if they are caught attempting to cross illegally.

The results have been immediate. Border encounters of Ukrainians trying to cross illegally fell from an average of 940 per day before the initiative to only around one dozen per day. The number of unlawful crossings by Venezuelans, Cubans, Haitians, and Nicaraguans fell from 84,000 last December to just 2,000 in February. Overall, border apprehensions in January and February fell by 42 percent from the December 2022 record.

The administration is enlisting regional allies as well. At a summit meeting in Ottawa last month, Canadian Prime Minister Justin Trudeau said Canada would admit an additional 15,000 refugees from the Western Hemisphere each year. In exchange, Washington agreed to close a loophole in the two-decades-old Safe Third Country Agreement that had encouraged some would-be asylum seekers to transit the United States and enter Canada illegally. While the numbers on the northern border have been tiny compared to those at the southern one, some 5,000 asylum seekers entered Canada from the United States in January, mainly at the Roxham Road crossing between New York and Quebec. (That surge has been a growing political irritant for the Trudeau government.)

Despite the initial success of the new scheme, Biden has faced blistering criticisms from both sides of the political spectrum. Human rights groups and their Democrat allies argue the measures violate U.S. law and are little different from the Trump administration’s efforts to block all asylum seekers at the border. They say the new legal options are too limited—applying to citizens of just four countries—and there are too few asylum appointments at the legal ports to meet the backlog of demand. Many would-be asylum seekers find themselves on their phones each morning and failing to seize one of the coveted slots on the CBP One app—effectively a form of the “metering” used under Trump. The app has also been plagued with technical difficulties making it difficult for migrants to enroll. The new policy has attracted thousands of negative comments accusing the Biden administration of turning its back on asylum seekers. Even U.N. High Commissioner for Refugees Filippo Grandi weighed in, arguing that the proposal is “incompatible with principles of international refugee law.”

Congressional Republicans, in turn, have convened a series of hearings alleging that Biden’s “open borders” policies led to the migration surge; most want to re-instate Trump-era deterrents that forced migrants to seek asylum in other countries or required them to remain in Mexico while their cases crawled through the U.S. courts. Those harsh measures helped to quell the 2019 migration surge. Republicans are also challenging the administration’s use of humanitarian parole to admit new migrants as a gross overreach of executive branch discretion. Republican attorneys-general from 20 states have challenged the measure in court, arguing that “it amounts to the creation of a new visa program that allows hundreds of thousands of aliens to enter the United States who otherwise have no basis for doing so.” A trial is scheduled for June in Texas.

It is too soon to know how all this will play out. In the best scenario, the new measures would be enough to discourage many illegal border crossings, leading to a further fall in numbers and allowing Biden to claim that the border is under control in the run-up to the 2024 election. The novel use of private U.S. sponsors for the new migrants, modeled after a similar scheme in Canada, may also quell complaints that the government is wasting resources on immigration. But it is also possible the courts will strike down the measures. And nowhere is the law of unintended consequences more evident than in immigration policy: Migration surges from countries other than those specifically included in Biden’s measures could lead to a new border crisis.

But the administration should be lauded for trying to create some order at a border that has been chaotic for decades, while also permitting tens of thousands of new migrants the opportunity to escape persecution and pursue better lives in the United States. It has become cliché to say that the U.S. border is broken. But in the absence of congressional immigration reform, which appears more unlikely than ever, Biden’s new plans are the most serious effort yet to fix it.