In a rare speech focused on immigration, President Biden announced new changes in border enforcement policies. The new plan incorporates several proposals that would make it easier for people to enter the country legally. Other changes will restrict asylum for people crossing the border illegally. Although the plan will unnecessarily create winners and losers, Biden’s new vision could—on net—improve the migration process for most affected immigrants and convert most illegal immigration to legal immigration, creating a more safe and orderly system. But the success of the new vision will depend heavily on how it is administered.
New Process to Request Asylum at the Border
The first component of the border plan will allow more people crossing through Mexico to request asylum at U.S.-Mexico ports of entry (legal crossing points). Applicants would receive a humanitarian exception to the Title 42 law that currently bars asylum if they demonstrate an undefined “vulnerability.” The administration has already been granting exceptions to Title 42 at ports of entry for the last several months, but the exceptions have been mainly for Haitians, and they usually require a referral by a nonprofit group at the border. Nonetheless, the exceptions are already helping, almost completely eliminating illegal entries by Haitians.
The new DHS policy announced yesterday would remove nonprofits as the gatekeepers, dramatically opening up this process. Anyone in Mexico seeking asylum could apply for an exception through a Customs and Border Protection (CBP) phone app, CBP One, and schedule an appointment to show up at a select set of ports of entry along the U.S.-Mexico border to request admission. The app allows CBP to prepare for the arrival in advance and conduct the initial background checks. Once the applicants arrive at a port of entry, they will rapidly complete the screening process by taking their fingerprints to verify their identities.
Although it could adopt a very restrictive interpretation of vulnerability and limit the number of admissions, the Haitian example demonstrates that if the administration is serious about ending illegal immigration through this mechanism, it can do so using this new process alone. Plus, if the courts allow Title 42 to be rescinded, the requirement to prove “vulnerability” will disappear.
New Sponsorship Program For Select Nationalities
But the Department of Homeland Security (DHS) is not only focused on transforming immigration from illegal to legal at the border. It also wants to create a process that would mean that fewer people would arrive at the border to begin with. Pursuant to this goal, it will authorize up to 30,000 Venezuelans, Cubans, Haitians, and Nicaraguans to enter the country legally under an authority known as parole per month, or 360,000 per year. Section 212(d)(5)(A) of the Immigration and Nationality Act authorizes DHS to grant “parole” status to anyone, waiving the usual limits on entry, for “urgent humanitarian reasons or significant public benefit.”
These people will be authorized to live and work in the United States initially for up to 2 years. This announcement effectively expands the Uniting for Ukraine parole policy announced in February and the Process for Venezuelans parole policy announced in October. Applicants will need to:
- have a financial sponsor in legal status in the United States who can pass a background check and who has sufficient resources to support them (generally a household income above the poverty line, including the sponsored immigrants).
- pass security and background checks;
- possess a passport valid for international travel;
- attest that they are vaccinated;
- be outside the United States;
- not be a dual national or permanent resident of any other country;
- not have refugee status granted by any other country;
- not have been ordered removed from the United States within the past 5 years or be subject to a bar based on a prior removal order; and
- not have crossed illegally into the United States, Mexico or Panama after January 5, 2023 (or October 19, 2022 for Venezuelans).
A financial sponsor can be an individual associated with and using the assets or income of a business. DHS says that sponsors can file “in association with or on behalf of an organization, business, or other entity that will provide some or all of the necessary support to the beneficiary.”
The reason for the focus on these four nationalities is that they accounted for about half of all arrested immigrants at the border last year who were not expelled under Title 42 authority because (until yesterday) Mexico had refused to take them, and their home countries severely limit or outright bar U.S. return flights. The Venezuelan program—in combination with other enforcement—had an immediate effect, helping to change the flow of Venezuelan migration to majority legal from nearly all illegal (Figure 2). Note that Figure 2 shows just the first month of the program. Ukrainians were always being admitted to cross legally before the creation of that country’s parole program, but its program had the effect of virtually eliminating the practice of arriving at U.S.-Mexico ports of entry, sending nearly all arrivals through U.S. airports after obtaining sponsors.
For context, the 360,000 parole admissions from these countries would be more people than were issued immigrant visas from these countries in the last 15 years combined. Of course, in another frame, it is only 60 percent of the number of people from these countries arrested crossing illegally at the border last year. The administration is correctly betting that many people would rather wait to be sponsored and admitted legally than undergo a dangerous journey to enter illegally. It is also worth expressing doubt whether the president will raise the cap if it needs to. DHS had previously stated that the cap on Venezuelan parole would be 24,000 but it has effectively just increased that limit, and even before today, DHS had already approved more than the 24,000 cap, according to statistics given to the Mexican government. The most important question is whether DHS devotes the resources to this project so processing remains as quick as it was for Ukrainians and Venezuelans.
Expansion of Title 42 Expulsions For Select Nationalities
In conjunction with the expansion of the new sponsorship programs, Mexico has agreed to allow CBP to expel up to 30,000 Venezuelans, Nicaraguans, Cubans, and Haitians back to Mexico if they cross the United States border illegally under the authority found in Title 42 of the U.S. code (a public health law). 30,000 is roughly half the number of those crossing illegally last month (Figure 3). Until October, Mexico had refused to accept these four nationalities, and CBP rarely expelled them to their home countries because these countries limit U.S. deportation flights. However, in mid‐October, Mexico agreed to accept most Venezuelans (about 80 percent) on condition that the United States create a new sponsorship parole program for them. At least temporarily, the expulsion policy combined with the new parole policy reduced illegal border crossings.
The long‐term effect of the expansion of Title 42 depends significantly on how the new sponsorship program and new asylum processes play out. If people can enter legally, we know that they will not enter illegally. If the sponsorship program issues approvals quickly (as it has been for Ukrainians and Venezuelans), and ports of entry are available for those without sponsors or valid passports, we should expect that very few people from these countries will be subject to Title 42 once they are made aware of the new processes.
The Biden administration is also trying to rescind the Title 42 policy, but a court has found that its first attempt was illegal and has blocked its rescission attempt. Another court has found that the Title 42 expulsion policy was implemented illegally and blocked its continued use, but the Supreme Court has temporarily stayed that ruling to decide if a group of states can intervene into the case to defend the policy better than the Biden administration is defending it.
As an added enforcement measure, President Biden is also promising to implement a ban (with some exceptions) on asylum for anyone crossing illegally from Mexico if they do not first request asylum there. President Trump implemented virtually the same policy, but the Ninth Circuit Court of Appeals deemed it illegal. Congress has clearly stated that people may apply for asylum “whether or not at a designated port of arrival” and “irrespective of such alien’s status” in the United States. Asylum seekers can only be returned to a “safe” third country, if that third country agrees, and DHS has already formally said that Mexico is not safe. While it is not possible to be confident in the outcome of court cases, it is plausible that this latest attempt will suffer the same fate. Either way, if the legal options remain open, the asylum ban will have only a limited effect.
President Biden has announced one of the largest expansions in legal migration in decades, and if he succeeds in drastically reducing illegal crossings with these new procedures, it will likely lead to expansion to other nationalities. This is the first serious intentional effort to use legal migration to secure the border since the 1950s Bracero Program. Whether it succeeds depends more on how it is administered than the policy on paper, but the administration already knows the blueprint, so failure will have to include an element of intent.
This article was originally featured at the Cato Institute and is republished with permission.