Did Biden intentionally cause the border crisis?

The House Judiciary Committee issued a report recently on the Biden administration’s record-breaking undocumented immigrant apprehensions and releases at the border, and its refusal to enforce the immigration laws in the interior of the country. 

The report questions whether the administration intentionally caused the border crisis. 

It certainly does seem to be intentional.  

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When President Joe Biden was campaigning for the presidency, he promised that he would swiftly reverse the Trump administration’s border policies.  

Then he walked back that promise at a press conference a month before beginning his presidency. He told the reporters that he would establish a more humane policy at the border, but that his administration would need "probably the next six months" to prepare for the transition. 

Terminating Trump’s border security and interior enforcement measures without the necessary preparations, he said, could lead to having "2 million people on our border."  

But he did it anyway. On Day One of his presidency, he rescinded the so-called Muslim travel ban; revoked Trump’s enforcement priorities; terminated border wall construction; and suspended enrollments in the Remain in Mexico Program. 

Catch and release 

Then his administration resumed the catch-and-release practice that Trump had ended whereby illegal border crossers are apprehended and then released into the United States. 

The Border Patrol apprehended nearly 6 million illegal crossers from the beginning of the Biden presidency on January 20, 2021, through September 30, 2023, and released more than 3.3 million of them into the country. Approximately, 99.7% are still here. It currently is releasing more than 85% of the illegal crossers it apprehends.  

The release figures would have been higher if the administration had not turned people away more than 2.3 million times pursuant to Title 42, which required border officials to expel illegal crossers to prevent the spread of COVID-19. 

The administration also has taken steps to ensure that the illegal crossers it admits will be able to stay in the United States. It replaced the removal provisions in the Immigration and Nationality Act with its own guidelines which shield illegal crossers from being put in removal proceedings once they have reached the interior of the country.  

According to DHS Secretary Alejandro Mayorkas, "The fact an individual is a removable noncitizen therefore should not alone be the basis of an enforcement action against them." He has limited enforcement measures to deportable migrants who pose a threat to national security, public safety and border security. 

The ICE Annual Report for Fiscal 2023 indicates that he has been successful at ensuring compliance with his guidelines.  

In fiscal 2023, ICE managed the cases of more than 6.2 million immigrants who were in removal proceedings. This included 1,292,830 migrants who were subject to final deportation orders. ICE only removed 142,580 of them.  

Moreover, only 44,255 of the 142,580 removals were from the interior of the country, and all but 2,540 of the migrants had criminal convictions or pending criminal charges. 

In other words, no more than 5.7% of ICE’s 44,255 removals from the interior of the country were just deportable for being here unlawfully, which would be the case for most of the illegal crossers. 

Lawful pathways 

When Title 42 was about to expire, the administration expected a surge in illegal crossings, which could be a political liability to Biden’s campaign for a second term as president. 

Consequently, the administration tried to discourage illegal crossings by providing lawful pathways as safe and orderly alternatives, and restricting asylum eligibility for migrants who choose to make an illegal crossing anyway. 

The lawful pathways included an increased use of humanitarian parole to admit up to 30,000 migrants a month into the country who do have visas. As of the end of November 2023, the administration had paroled 297,000 migrants into the country under this program. 

The administration also increased the use of the CBP One program for scheduling interviews at a port of entry for migrants who do have visas. Around 95.8% of the migrants who have been interviewed were admitted into the country. 

The lawful pathways did reduce illegal crossings initially. The crossings dropped from 183,921 in April 2023, to 99,538 in June, but they rose back to 181,059 in August and were at 218,763 in September.  

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Despite the failure of the lawful pathways program to reduce illegal crossings, the administration has continued to use them.  

Now what? 

What is going to happen to the millions of migrants without visas that the administration has released into the country? 

The ones who were paroled will have the same immigration status and receive the same treatment as any other applicant for admission to the United States when their parole periods expire. 

The release figures would have been higher if the administration had not turned people away more than 2.3 million times pursuant to Title 42, which required border officials to expel illegal crossers to prevent the spread of COVID-19. 

Legalization is not a realistic possibility. It has been almost 40 years since the last major legalization program was established by the Immigration Reform and Control Act of 1986. 

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Lastly, the immigration court can’t adjudicate their asylum applications unless their cases are considered ahead of asylum seekers who have been waiting for up to 10 years. As of the end of December 2023, the immigration court had a backlog of 3,287,058 cases.  

In other words, the administration has given false hope to millions of migrants who expected to establish a lawful permanent home in the United States. This is especially unfair to the asylum seekers who will never have a chance to present their asylum applications. 

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