Tipsheet

Will the Biden Admin's 'New' Border Plan Actually Work?

Mia Cathell
Mia Cathell  |  April 29, 2023 8:00 AM

Title 42, a pandemic-era emergency public-health order imposed under former President Donald Trump that allowed Border Patrol agents to swiftly expel migrants, is expected to lift overnight on May 11. With its anticipated expiration spurring more treacherous trips to America comes a flood of illegal immigrants that U.S. authorities are bracing for at the southern border.

In an apparent last-ditch attempt to avert disaster before Title 42's end, a fact sheet issued Thursday by the U.S. Department of Homeland Security announced that the Biden administration is implementing "sweeping new measures to further reduce unlawful migration across the Western Hemisphere..." Biden's DHS claimed that the actions announced "draw on the success of recent processes that have significantly reduced unlawful border crossings" through the purported "swift removal" of unlawful migrants.

Language like "drawing on success" and "further reducing" illegal immigration paint a pretty picture of the scene at America's embattled border. In actuality, President Joe Biden's administration continues to let illegal aliens loose into the U.S. and has failed to capture a jaw-dropping number of gotaways. The border, evidently, has worsened under Biden's watch, watchdogs observe, and some of the "new" steps being taken, as outlined in the DHS's press release, are rehashes of old stuff, but beefed up.

Will the Plan Actually Work?

There are a multitude of flaws in the Biden admin's supposed plan-of-action, as experts on immigration are voicing.

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According to the Federation for American Immigration Reform (FAIR)'s assessment, Biden's DHS plans to "accommodate" the awaited deluge of illegal migration—rathan than prevent or deter it—in "a massive scheme to process migrants and disburse them around the country as quickly as possible." Afterall, the DHS bills the master plan as "managing" Biden's border crisis.

The rollout amounts to "the same failed policies [...] only on steroids," which resulted in more than 7 million illegal entries in just the first 26 months of Biden's administration, FAIR's president Dan Stein charged in a press release. "Expanding these policies, as the DHS plan proposes, will do irreparable damage to the country that will be felt for generations to come," Stein stated.

Resident law-and-policy fellow Andrew R. Arthur of the Center for Immigration Studies (CIS), a non-partisan research institute that examines the impact of immigration on American society, said that under the "new" border plan, we should expect short-term detentions of single adults and the mass releases of adults traveling with children in "family units," plus "a whole lot of chaos."

To facilitate the "orderly" processing of new arrivals, the U.S. will "expeditiously" process and remove entrants who don't have a legal basis to remain in America, the DHS press release said. In expedited-removal proceedings, migrants who seek asylum for fear of persecution at home will be referred to a U.S. Citizenship and Immigration Services officer for a "credible fear" interview.

As Arthur explained, Congress defines credible fear as "a significant possibility," taking into account the credibility of the migrant's statements made in support of the alien's claim and facts known to the officer. The reason that the credible-fear bar—establishing eligibility for asylum—isn't higher is because Congress intended for the interviews to simply be a screening process to determine whether aliens may be eligible for asylum, Arthur wrote. Consequently, even aliens with "weak, bogus, or otherwise non-meritorious asylum claims," Arthur countered, can receive "positive credible fear determinations," as DOJ statistics demonstrated.

Eighty-one percent of aliens who claimed fear of return between fiscal years 2008 and 2019 received "positive credible fear determinations," Arthur cited. Despite that high credible-fear approval rate, however, fewer than 17 percent of migrants found to have a credible fear in those years were granted asylum by immigration judges, and 32.5 percent of aliens deemed to have a credible fear were ordered to be removed in absentia when they, then, failed to appear in court. As aforementioned, credible fear is not a high bar, and thus, can be easily exploited. Illegal immigrants have quickly realized that making a fear claim is a quick ticket to release into the U.S.

Stein assessed that the DHS subjecting illegal immigrants to expedited removal is "a hollow threat that is designed to convince the American public that they are attempting to enforce immigration laws, which they have adamantly refused to do since the day President Biden took office." In reality, "it is an open invitation to foreign nationals to make specious claims for asylum, under which they will be allowed to enter the United States while they wait as long as ten years for a hearing on their cases," he added.

Arthur noted that the Biden administration has "rarely utilized" expedited removal.

In fiscal year 2022, just 9.6 percent of the more than 1.2 million illegal migrants apprehended—and processed under the Immigration and Nationality Act, as opposed to expelled under Title 42—were subject to expedited removal. In contrast, almost 311,000 others (27 percent) were served with a Notice to Appear, the charging document; given a court date; and released on their own recognizance.

"Expect that as part of its post-Title 42 plan, Biden's DHS will briefly detain many if not most" single adult migrants who enter illegally, Arthur wrote. "Biden's expansion of expedited removal will collapse under the weight of a massive migrant surge, and if those migrants aren't detained for a sufficient period to deter future illegal entrants [...] that massive migrant surge will occur."

Arthur suspected that the Biden administration will likely handle a massive post-Title 42 wave of migrants in "family units" (FMUs) by releasing them with NTAs ("Notice to Appear") and court dates. DHS must release migrant children in FMUs within 20 days, and to avoid "family separation," DHS has a rule to release the adults in FMUs within the 20-day timeframe as well. Although the Biden administration had reportedly considered the reinstatement of some level of FMU detention, DHS Secretary Alejandro Mayorkas denied that migrant families would be detained during Thursday's joint DHS-U.S. State Department press conference.

Center for Immigration Studies executive director Mark Krikorian offered commentary as well in a write-up analyzing the DHS's announcement, which he called "preemptive damage control" for the looming rush of illegal border-crossers. According to Krikorian, the Biden admin is "trying to manage effectively unlimited immigration, but in such a way as to minimize bad press."

What Hasn't Worked So Far

DHS reiterated that the Biden admin has "approached migration as a regional challenge" by "address[ing] root causes" of migration in Central America, which was a so-called strategy the U.S. adopted after Biden signed an executive order calling for its development. Vice President Kamala Harris has been the point-person tasked with leading the Biden administration's diplomatic efforts. This year, she secured over $4.2 billion in private-sector commitments, collecting pledges by private companies like Nestle, Target, and Columbia Sportswear to support Central American communities and fund projects that support farmers, create textile jobs, and invest in other industries. However, border crossings remain at record hights despite the big-money backing.

Biden has already requested that Congress cut the number of ICE detention beds for illegal aliens in his fiscal year 2024 budget at a time that U.S. Immigration and Customs Enforcement's detention capacity needs to be exponentially expanded, Arthur said.

Detention is the key to a successful post-Title 42 border strategy, Arthur argued. If illegal aliens are released upon capture, only more will follow. "If they're detained for more than a few days and face the risk of removal, however, many future would-be illegal migrants won't view paying thousands of dollars to a smuggler for a perilous and possibly unsuccessful trek to the United States as a good investment," Arthur wrote. "Migrants are smart economic actors" and must balance the risks against the potential rewards. That's why illegal entries have hit historic levels after Biden eliminated almost of these risks early in his presidency.