A Border Crisis By Design
It is unequivocally the intended result of Biden administration policy.
Jeffrey H. Anderson, City Journal
Three years into the border crisis, most Americans still don’t understand what’s actually happening at the border. This lack of understanding extends to the mainstream press and to most Republicans, who have struggled to communicate effectively on the issue.
The cause of the current crisis is President Joe Biden’s unprecedented refusal to enforce federal immigration law, which requires that all asylum-seekers be detained rather than released into the United States. The solution, therefore, is for Biden to start enforcing federal law as he is constitutionally required to do—or for Congress to deny the president something else he wants until he does.
Many observers, however, seem unclear about the cause of the crisis. Praising a not-yet-released Senate immigration bill, which a trio of senators is currently negotiating with the White House behind closed doors, the Wall Street Journal editorial board writes that “the President needs Congress to fix the underlying incentives at the border.” But the president, not Congress, has created the incentives that have attracted so many illegal aliens, by offering a near guarantee that asylum-seekers will get released into the U.S. rather than detained as their claims are adjudicated.
Under presidents of both parties before 2021, those trying to enter the U.S. illegally at least had to evade the authorities. This hasn’t been true under Biden. U.S. District Court Judge T. Kent Wetherell writes that U.S. Border Patrol (USBP) Chief Raul Ortiz “testified that the current surge differs from prior surges that he [has] seen over his lengthy career in that most of the aliens now being encountered at the Southwest Border are turning themselves in to USBP officers rather than trying to escape the officers.” Ortiz, whom the Biden administration selected as chief, said that aliens are likely “turning themselves in because they think they’re going to be released.”
The difference in the number of releases under Biden and under his immediate predecessor is like the contrast between the Himalayas and a pitcher’s mound. According to U.S. Customs and Border Protection (CBP) statistics, in December 2020, the last full month under President Donald Trump, the USBP released 17 aliens into the U.S. In December 2023, the most recent month for which statistics are available under Biden, the USBP released 191,142 aliens into the U.S. In other words, the USBP released 0.009 percent as many aliens into the U.S. during the final month under Trump as it did during the most-recent month under Biden—for every one alien released under Trump, 11,244 were released under Biden. That’s not a normal increase; it’s a flash flood.
In all, the Congressional Budget Office (CBO) estimates that the Biden administration released 2 million aliens into the U.S. in fiscal year (FY) 2023. In addition, the CBO estimates that there were 750,000 “got-aways”—those detected crossing the border but not apprehended. This gives a rough sense of what’s driving this crisis: for every three people who were detected crossing the border but got away, there were eight people—nearly three times as many—who were apprehended between the ports of entry, or deemed inadmissible at a port of entry, yet were released into the U.S. in defiance of federal law.
The prospective Senate bill would reportedly let the president “shut down the border” if the average number of migrant crossings were to surpass 4,000 a day over the span of a week, and it would mandate such action if there were 8,500 illegal crossings on a given day. Oklahoma senator James Lankford, the sole Republican playing a lead role in the negotiations, appeared on Face the Nation on January 28 and suggested that he believes the Biden administration’s line that it is releasing so many aliens into the country because there are simply too many to detain them.
In truth, the reason why there are so many aliens to detain is because word has gotten out that if you come and request asylum, you’ll be released into the U.S.—and this has been the case since Biden took office. As Judge Wetherell put it in a 2023 immigration case, the Biden administration’s actions have been “akin to posting a flashing ‘Come In, We’re Open’ sign on the southern border.” As word has spread, the numbers at the border have massively increased, with the most recent month on record (December 2023) being the worst month to date.
For his part, Biden claims that if the prospective Senate bill “were the law today, I’d shut down the border right now and fix it quickly”—thereby implying that Congress is at fault. This flips the truth on its head. What’s more, even if the bill were to pass and Biden were to “shut down the border,” it’s not as if the flow would stop: people cross the border illegally on a daily basis already.
Such a “shutdown” would reportedly “suspend asylum [claims] in between official ports of entry” but apparently wouldn’t stop people from claiming asylum at the ports. According to CBS News, during a so-called shutdown of the border, the bill “would preserve asylum at official ports of entry”—indeed, it “would require U.S. border officials to continue processing more than 1,400 asylum-seekers daily at these official border crossings.” So, this means that another half-a-million illegal aliens would be released into the U.S. annually, even if the border were “shut down” all year.
In reality, having a “Come In, We’re Open” sign at each port of entry, while discouraging rampant crossings of the border between the ports, reflects the Biden administration’s goals. In a 2022 interview, Fox News anchor Bret Baier asked Department of Homeland Security (DHS) Secretary Alejandro Mayorkas whether “it is the objective of the Biden administration to reduce—sharply reduce—the total number of illegal immigrants coming across the southern border.” Strikingly, Mayorkas refused to answer yes, instead immediately replying, “It is the objective of the Biden administration to make sure that we have safe, legal, and orderly pathways for individuals to be able to access our legal system.”
What Mayorkas meant by this is that the administration wants illegal aliens to come not to random places along the border but to the ports of entry—from whence they will be released into the interior of the country. The Biden administration and the mainstream media insist on calling this “lawful” entry. The law, however, requires that those who enter the U.S. without proper documentation be continuously detained until their claim can be adjudicated, since they lack the documents to enter lawfully.
The Immigration and Nationality Act (INA) states that if “an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a [removal] proceeding.” It also declares that “if an alien asserts a credible fear of persecution, he or she shall be detained for further consideration of the application for asylum.” Justice Samuel Alito writes that these detention “requirements, as we have held, are mandatory.”
The Biden administration asserts that it can use “parole” or “prosecutorial discretion” to release illegal aliens into the U.S. as it sees fit, but this policy plainly violates federal law. Quoting the INA, Chief Justice John Roberts writes for the Supreme Court, “DHS may exercise its discretion to parole applicants ‘only on a case-by-case basis for urgent humanitarian reasons or significant public benefit.’” In the past, DHS has construed this language to mean that those who would qualify might include, for example, someone who needs emergency medical care (for urgent humanitarian reasons) or an alien scheduled to be a witness in a trial (providing significant public benefit). The Biden administration is construing it to mean essentially anyone.
The administration’s primary justification for releasing massive numbers of aliens into the U.S. is that it doesn’t have the space or personnel to detain them as the law requires. But as a 2023 DHS Inspector General report notes, “Since FY 2019, Congress has authorized most of the law enforcement personnel that CBP and ICE [Immigration and Customs Enforcement] requested.” Judge Wetherell observes that DHS had the capacity to detain an average daily population (ADP) of 55,000 just five years ago, but under the Biden administration “DHS requested a reduction to 32,500 ADP for fiscal year 2022” and for FY 2023 “requested a further reduction to 25,000 ADP.”
Congress nevertheless approved funding for 34,000 ADP for FY 2023. This year, in its 119-page FY 2024 Budget in Brief—under the heading of “Major Decreases”—DHS requested that detention space be reduced to 25,000 ADP for FY 2024, touting that this would save $555 million versus 2023 outlays. In short, the Biden administration is claiming that there isn’t enough detention space, while simultaneously proposing further reductions in detention space.
The Biden administration’s catch-and-release—or welcome-and-release—policy has also had the effect of making it easier for others to evade capture along the open border. Andrew Arthur, a former federal immigration judge currently at the Center for Immigration Studies, explains that “many if not most” border patrol agents are now “stuck transporting and processing migrants before they are released,” rather than policing the open border.
Why would anyone feel the need to cross the open border when the Biden administration would willingly let them in at a port of entry if they utter the password “asylum”? Well, if one is a drug-smuggler, a terrorist, or someone with a criminal record in the U.S., one might rather cross the open border than risk an encounter at a port of entry. We don’t know how many potential terrorists have crossed the southwest border under Biden without getting caught, but we do have strong evidence of a huge increase in the number who have tried. According to CBP statistics, from FY 2018 through FY 2020—the three full fiscal years under Trump—USBP had only nine encounters along the southwest border with noncitizens on the terrorist watch list. In just the first two-and-one-quarter fiscal years entirely under Biden (FY 2022 through the first quarter of FY 2024), USBP had 316 such encounters—a 35-fold increase overall, and a 47-fold increase per month.
Even apart from aiding terrorists, drug-smugglers, and the like, the effects of Biden’s refusal to enforce federal law have been profound. According to data released by the Bureau of Labor Statistics, in less than three years under Biden, the United States’s foreign-born population over the age of 16 rose by 5 million (from 43,086,000 in January 2021 (Table A-7) to 48,049,000 in December 2023). That’s enough to populate a new Los Angeles, Miami, and Washington, D.C. combined.
Why is Biden releasing millions of illegal aliens into the U.S.? Because he thinks that his notion of “equity”—which he extends to non-U.S. citizens—requires it. On his first day in office, Biden issued an executive order declaring that his administration would pursue a policy of “advancing equity for all, including people of color and others who have been historically underserved, marginalized, and adversely affected by persistent poverty and inequality.” In a subsequent document, DHS quoted that passage from Biden and made clear that it was applying it “[i]n the immigration and enforcement context.”
In other words, the situation at the border is by design. What most Americans think of as a “crisis,” the Biden administration regards as a success.
Jeffrey H. Anderson is president of the American Main Street Initiative and served as director of the Bureau of Justice Statistics at the U.S. Department of Justice from 2017 to 2021.
