Another year, another US border crisis. Could 2023 be different?

The Explainer

Heading into the new year, the Biden administration’s actions at the southwest border have come under intense scrutiny.

U.S. Customs and Border Protection has been reporting record numbers of encounters at the U.S.-Mexico border, as the COVID-19 pandemic and other global crises have compounded the challenges facing a U.S. immigration system ill-equipped to process large numbers of asylum-seekers.

After criticizing the Trump administration’s approach to these challenges as inhumane and ineffective – including the forced separation of families and the rapid expulsion of migrants under a pandemic-era public health order – the Biden administration has only recently begun implementing a different approach. And critics say the approach has only been different in parts.

Court battles have drawn out some of these policy changes, and while some Trump-era programs have been ended, others have been maintained – and even expanded. Chronic issues, like the growing backlog of cases in immigration courts, persist. Partnerships, primarily between the United States and Mexico, are strengthening, while strained ties with other Latin American nations hamper cooperation.

In sum, the Biden administration is caught between migration patterns that are increasingly hemispheric and organized, and domestic political head winds focused on border security. As border issues grow more complex, the U.S. immigration system remains outdated and under-resourced. 

More fundamental changes are possible – and needed – analysts say, pointing to recent programs focused on Ukrainian and Venezuelan migrants. But there needs to be popular and political will as well.

“The Biden administration is taking some steps to soften the harshest edges of the Trump administration’s southwest border policies. But at the end of the day, they’re doing so at a very slow pace,” says César Cuauhtémoc García Hernández, a criminal and immigration law professor at the Ohio State University Moritz College of Law.

The administration “has shown us they have the tools available, and have the capacity, to respond quickly and effectively,” he adds. “It is possible under existing immigration law and existing resources ... to respond to the many humanitarian crises that are raging throughout the hemisphere.”

Title 42 ends next week. What happens next?

The Biden administration has spent years working to reunite families separated at the U.S. border between 2017 and 2021. Since August – after a legal battle that went up to the U.S. Supreme Court – it has been winding down the “Remain in Mexico” program, which required asylum-seekers to stay outside the country while their cases were pending.

But the White House has retained – and expanded – another hallmark Trump policy: the Title 42 program, a public health order that allows officials to automatically expel unauthorized migrants from certain countries without immigration charges. The lack of charges has resulted in many migrants making repeated attempts to enter the country, analysts say – particularly among Mexican migrants – which has contributed to record numbers of “encounters” at the southwest border in the past two years.

Next week, however, Title 42 will also end after a federal judge struck down the policy in November. The Biden administration is appealing, but how it handles migrant flows in the aftermath will be closely scrutinized by its political opposition.

Republicans, who will take control of the House of Representatives in January, have said border security will be a top legislative priority in the new year. They criticize, in particular, Alejandro Mayorkas, head of the Department of Homeland Security (DHS), and his handling of border issues, and may attempt to impeach him next year. Secretary Mayorkas, meanwhile, forced out the head of U.S. Customs and Border Protection, Chris Magnus, last month.

A bipartisan push for an immigration reform bill is underway in the U.S. Senate, meanwhile – a compromise bill that would reportedly include a pathway to citizenship for around 2 million “Dreamers,” or unauthorized immigrants who came to the U.S. as children – while beefing up border security and implementing a Title 42-style policy.

Conservatives have criticized the potential legislation as a continuation of the Biden administration’s insufficient handling of the border.

“The Biden Administration is responsible for the worst non-stop border crisis in American history and should not be rewarded with an inadequate and deeply flawed immigration deal from Congress,” said Greg Sindelar, CEO of the Texas Public Policy Foundation, in a press release last week.

“It is time to focus on making sure that all the needed asylum system fixes, enforcement capacity and mechanisms, including the still incomplete infrastructure and technology at and between ports of entry, are in place and fully functioning,” he added.

The political reality is that “there’s a need for the Biden administration to [show] they’re doing something at the border, even when that’s not tackling the root of what’s happening,” says Ariel Ruiz Soto, a policy analyst at the Migration Policy Institute.

“Any or every change that’s perceived to increase numbers [of encounters] is perceived as the border being insecure,” he adds.

How have migration patterns to the U.S. changed?

As has been the case for decades, irregular migration to the U.S. continues to be driven by a combination of “pull factors” toward America and “push factors” away from native countries. And those factors continue to evolve.

Whereas migrants were once predominantly adult men from Mexico entering unlawfully – the population that U.S. immigration infrastructure is arguably still best designed for – the mid-2010s brought larger numbers of unaccompanied children and families seeking asylum from Central America. Now, families and individuals from across the hemisphere are journeying to the U.S. to request asylum. International law requires that the U.S. take in asylum-seekers and adjudicate their claims.

Driven by political, social, and economic crises, and facilitated by sophisticated trafficking networks, migration in 2022 is breaking records across the continent – from the U.S.-Mexico border to the Darién Gap jungle separating Colombia and Panama. 

“It’s not that political repression just happened in 2021, but that people began to see it wasn’t going to change,” says Mr. Ruiz Soto.

“People began to lose hope that in these countries [things were] going to change.”

As irregular migration becomes more hemispheric, experts say, government management of migration needs to become more hemispheric. Countries like Mexico, Canada, and Costa Rica have been accepting more asylum-seekers in recent years (the U.S., with a strict refugee admissions cap, is lagging in this regard). 

But the hemisphere lacks the infrastructure and resources to handle this volume of migration – at least in the way it’s traditionally approached the issue.

“Our priorities for so long have been control, deportation, and containment,” says Mr. Ruiz Soto. “Until we make that more balanced, we’re going to continue to see that these countries – including the U.S. – don’t have enough capacity to meet the demand.”

In other words, the hemisphere can’t police its way out of migration like this, experts say. Partnerships must be formed, and a regular, legal migration system created.

That shift has already begun, but the results have been mixed. 

Frosty diplomatic ties with countries like Cuba, Venezuela, and Nicaragua make it difficult for DHS to deport migrants from those countries. So the U.S. and Mexican governments have worked especially closely together to manage the northward flow of Venezuelan migrants. 

In January, at the request of the U.S. government, Mexico imposed a new visa requirement on Venezuelans entering the country. And in October, the two countries reached an agreement to expand Title 42 – allowing the U.S. to expel Venezuelans into Mexico – and create a new parole program allowing up to 24,000 Venezuelans temporary legal status in the U.S. 

Judging by the continued flow of migrants, particularly Venezuelans, crossing the Darién Gap and America’s southwest border this year, these policies don’t seem to have had the desired effect.

“Today, U.S. border policy isn’t just playing out at the U.S. border; it’s playing out across the hemisphere,” says Professor García Hernández.

“We’ve [not] stopped migration out of South America, but we have made it more dangerous,” he adds. “That’s the future if policies emanating from Washington don’t change.”

Can U.S. slow down traffic, or process it faster?

Illegal – and thus dangerous – migration can be limited, conservatives argue, with tougher border policies.

“The key is always reducing the incentives for illegal immigrants,” says Mark Krikorian, executive director of the Center for Immigration Studies, a nonprofit think tank that advocates for limited immigration.

“There’s a limit to what the U.S. can do to address root causes of immigration, which is why we need more muscular immigration enforcement,” he adds. “Once they do that, the flow will start abating, because you’ll be sending the message that the risk will not be worth it.”

The Biden administration has been focusing its reforms elsewhere, in particular bolstering an under-resourced asylum system.

This spring, DHS began piloting a new asylum officer processing rule intended to resolve asylum requests within months instead of years. Last year, the Biden administration launched a new Dedicated Docket in immigration courts for families seeking asylum at the southwest border, the goal being “to decide cases expeditiously, [while] fairness will not be compromised.”

The program has helped speed up asylum cases, but fairness has suffered, according to a report from the Transactional Records Access Clearinghouse (TRAC) at Syracuse University. Only about one-third of families had representation in their cases, while about two-thirds of families never filed asylum applications before their cases were closed.

Meanwhile, the case backlog in immigration courts has continued to grow.

“There [is] no quick fix for the country’s asylum backlog,” said the TRAC report. “The evidence suggests that the United States can implement schemes to make asylum cases fast or make asylum cases fair, but not both.”

What about the Ukrainians?

Where the Biden administration has had success, experts say, is in how it quickly adapted the U.S. immigration system in response to Russia’s invasion of Ukraine. Within months, DHS announced the Uniting for Ukraine program: a “streamlined process” with “no numerical limits,” in which Ukrainians, with the help of private citizen sponsors, can apply for humanitarian parole into the U.S.

Over 100,000 Ukrainians have entered or been approved to enter the U.S. through the program so far, according to an August report from the Niskanen Center. (Through its official refugee resettlement program, the U.S. admitted just over 2,500 refugees in fiscal year 2022.)

“They’ve dealt with a community that was in dire need,” says Guadalupe Correa-Cabrera, an associate professor at the Schar School of Policy and Government at George Mason University.

“That’s exactly what they can do [with other communities] if there is a commitment to do that,” she adds.

Indeed, immigration experts point to Uniting for Ukraine as an example of how U.S. immigration policy can be successfully adapted for modern times. They point to it, right now, as an isolated example.

“That’s evidence that when the administration takes seriously the humanitarian call that President Biden issued to immigration officials, it does actually have the ability, the resources, and the legal wiggle room to adopt a very humanitarian approach,” says Professor García Hernández.

“The question then becomes, why limit it to that crisis?”