Big border surge didn’t happen. But calls persist for an overhaul.

The official end of the pandemic public health emergency on May 11, and the lifting of a key measure used to expel migrants, had Washington and border communities bracing for a massive border surge.

So far, that hasn’t materialized. But the concerns and countermeasures surrounding that policy change are putting a new spotlight on the ongoing challenge of record-high levels of illegal immigration – and whose responsibility it is to fix it.

Many are skeptical that Congress can pass comprehensive immigration reform. Still, Sen. Angus King, a Maine independent, sees areas of agreement. Both sides want better control over the border, he says, and many would like to help the “Dreamers” – the children of unauthorized immigrants. Every business group that comes to his office highlights workforce challenges, yet he points to asylum-seekers in Maine who want to work but can’t.

“I believe there’s a deal [to be made],” he says. “The difficulty – and I can tell you as a person who has worked on this for some time – is knowing what to do at the border.” 

The current U.S. system can’t cope with the number of asylum-seekers, and migration is only likely to increase due in part to climate change in tropical countries, he adds. “I haven’t run into anybody yet that has a clear, unequivocal, easy solution.” 

Democrats say a comprehensive deal is needed to fix an obviously broken immigration system, and that securing the border can’t be separated out from other problems, including addressing the underlying reasons so many migrants are coming to the United States.

Republicans beg to differ. They say the Trump administration already showed that illegal immigration could be vastly reduced through a combination of disincentives and stepped-up enforcement. And while they offer a variety of legislative proposals – from increased funding for law enforcement to restarting construction of a border wall – they say the situation at the border is too serious to wait for a gridlocked Congress to act.

“Right now, the No. 1 most immediate threat to our national security is this open border,” said Sen. Roger Marshall of Kansas, a member of the Homeland Security committee, last Thursday, after touring a makeshift migrant camp in Brownsville, Texas.

On the banks of the Rio Grande

Later that night, Senator Marshall and a few other Republican lawmakers stood along the banks of the Rio Grande warning of the dangers of illegal immigration. On the other side, migrants gathered around campfires, as festive music wafted across the river that stood between them and a new life. 

A stray turquoise flip-flop and flattened toothpaste tubes lay on the dusty path up which thousands of migrants had passed in recent days. The concertina wire does little to stop them, nor does the prospect of a dangerous journey.  

Amid a global migration surge, U.S. Customs and Border Protection registered a record 2.4 million encounters along the southwestern border in the last fiscal year – nearly triple pre-pandemic figures. More than 850 migrants died trying to cross during that period, points out Texas Sen. Ted Cruz. In addition, there are widespread reports of smugglers sexually assaulting women and girls.  

Chris Cabrera, vice president of the National Border Patrol Council – the agents’ union – told the Monitor of seeing a grandmother who was beaten up for protecting her granddaughter from being assaulted. He also described pulling the bodies of children out of the brush, and seeing a 12-year-old girl’s body pulled from the river – scenes he says would change the minds of people and policymakers opposed to stricter border enforcement measures.

“If they see what we see, they would realize that the most humane thing to do was to deter people from coming,” he says. 

To Republicans, reviving the Trump playbook is an obvious solution. That included efforts to construct a border wall, deportations by Immigration and Customs Enforcement, and “Remain in Mexico,” a program under which asylum-seekers awaited the results of their claim in Mexico rather than being released into the U.S. Another aspect less touted by GOP lawmakers was the family separation policy, which was highly controversial but seen by many as an effective deterrent. Once the pandemic started, the administration also added Title 42 to allow the expulsion of migrants on public health grounds.

With those programs in place, illegal immigration dropped by more than 50% from 2019 to 2020, just before the pandemic shut down much of the world. It then tripled during the first year of the Biden administration, reaching a total of 1.7 million encounters – a proxy for illegal immigration flows, even though some of those individuals are turned back. In addition, Department of Homeland Security head Alejandro Mayorkas told Congress, there were 389,155 “known gotaways”– migrants picked up by cameras and other technology who slipped away before border agents could get to them. There are presumed to be unknown gotaways as well.  

In 2022, the number of encounters grew to a historic high of 2.4 million – about 700,000 more than the previous record, in 1986. 

Border Patrol union leaders say agents are overwhelmed, too often bogged down with administrative tasks, and demoralized by not being able to do their jobs. 

“I think the most frustrating thing is that when you arrest individuals, they laugh at you,” says Art Del Cueto, vice president for the Western region. 

Another concern is the amount of fentanyl coming across the border; in the first half of fiscal 2023, nearly as much fentanyl was seized as in the entire previous year, which was already four times higher than in 2019. According to a government report earlier this month, the rate of fentanyl deaths in the U.S. tripled from 2016 to 2021.  

Nearly 90% of those seizures occurred at official ports of entry along the southern border, but Border Patrol agents and lawmakers say that’s because it’s much harder to interdict drugs along the long expanses of the border outside official crossings – especially when the Border Patrol is coalescing around groups of migrants who often need immediate humanitarian assistance. Cartels will amass a large group of migrants and send them across the border to distract border agents, and then send drug smugglers through an unpatrolled area, says Brandon Judd, president of the National Border Patrol Council.

“When you’re in a secure location and you can go through every single vehicle, you’re going to catch more stuff,” says Mr. Judd. “But when you’re between the ports of entry ... where the cartels reign, they’re pulling our agents out of the field, creating gaps in our coverage, and that’s when they’re bringing stuff across.”

A “shift” toward legal pathways

Many on both sides of the aisle were bracing for already high levels of illegal immigration to balloon when Title 42 was lifted May 11. The emergency provision had been used to expel 40% of migrants seeking to cross the southwestern border illegally in recent months.

However, daily crossings – which spiked to more than 10,000 last week – are down to less than half of that.

In a media call Monday, Biden officials credited their expansion of legal pathways over the past two years, including a sixfold increase in refugee admissions from Latin America in fiscal 2022.

“We’re starting to see this shift of people understanding that it is to their advantage – and lifesaving – to use a lawful pathway, rather than to put themselves in the hands of some of the unscrupulous actors in the region,” said Marta Costanzo Youth, principal deputy assistant secretary of the State Department’s Bureau of Population, Refugees, and Migration. 

The administration also introduced a rule last week that prevents those who traveled through another country prior to reaching the U.S. from applying for asylum if they did not do so in the third country, with limited exceptions.

Another factor that may be dissuading migrants is the fact that whereas those expelled under Title 42 faced no penalty for attempting to cross again, now removal comes with a five-year ban on reentry and potential criminal prosecution. In addition, Mexico and Guatemala have stepped up enforcement along their southern borders. And the U.S. has sought to counter cartels’ marketing to vulnerable populations looking for a better life, most recently focused on Venezuela.

But the Biden administration is facing lawsuits from across the political spectrum for nearly all the measures it’s trying to implement.

“This shows just how dysfunctional and broken the immigration system is – and why we need Congress to step up in a bipartisan manner to resolve these issues,” said Blas Nuñez-Neto, assistant secretary for border and immigration policy at the Department of Homeland Security. 

Bills in Congress

Democratic Rep. Vincente Gonzalez, who represents Brownsville, reintroduced his Safe Zones Act last month to streamline the asylum process and establish areas in Mexico and Guatemala where migrants can apply for asylum without undergoing a dangerous journey.

On May 11, as Title 42 was set to expire, the Republican-controlled House passed the Secure the Border Act by a narrow margin, 219-213. The sweeping bill, which includes restarting border wall construction, limiting who can apply for asylum, and calling for a new employment eligibility verification system to be used by all employers, has virtually no chance of passing the Democratic-led Senate.

Republican Sen. Thom Tillis of North Carolina and independent Sen. Kyrsten Sinema of Arizona introduced a bill May 5 that would replace Title 42 with a temporary expulsion authority that would last for two years. That could potentially give Congress time to work out more comprehensive immigration reform – something Biden officials and allies say is desperately needed. 

For now, Brownsville resident Juan Rodriguez has taken matters into his own hands – hiring two recent Venezuelan migrants to weed his yard, and helping them earn money to get to New York, where they have family. 

“Congress is all about black and white,” says Mr. Rodriguez, whose family has been in this area since it was part of Mexico. He faults lawmakers for paying “very little” attention to the humanitarian dimensions of the crisis, leaving that to grassroots efforts. 

“Right now, it’s people helping people,” he says.