Under Biden, are illegal immigrants safe from deportation once they get past the border? 

CATO scholar David J. Bier says Republicans want a border deal that would reduce migrant flows, but the migrant flows aren’t the problem — the border crisis was caused by politicians who restricted legal immigration.  

America has nearly 9 million open jobs and needs to support its growing retiree population. The solution is to let immigrants who want to work here come legally.  

Bier is not the first person to observe that the lack of opportunities to enter the United States legally encourages illegal border crossings. Certainly, this is a factor, but it isn’t the only one. In any case, it doesn’t explain the record-breaking increase in illegal border crossings that has occurred during the Biden presidency. 

Todd Bensman, a recognized expert in border security, offers an explanation that does account for the increase. He calls it the “Biden Effect.”  

Migrants from South and Central America and elsewhere around the world heard Joe Biden’s campaign promises, such as reversing his predecessor’s immigration and border security measures, and later learned that he was keeping them with executive orders on Day 1 of his presidency. This produced the record-breaking increase in illegal border crossings.  

Title 42 expulsions provided some restraint on the tsunami of illegal crossings that the Biden effect had caused. When that order was about to expire, Biden’s administration did what Bier is advocating: it created lawful pathways to reduce the need to make illegal border crossings.  

But the administration’s lawful pathways strategy didn’t work. Illegal 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.  

The main pathway is the CBP One program for making interview appointments at a port of entry, which leads to lawful admission for 95.8 percent of migrants. The others were limited to certain countries and had restrictions.  

CBP One works for those migrants who are able to get appointments, but the wait for appointments has been too long for many. As of November, the average wait time is a few months. Consequently, migrants who can’t — or don’t want to — wait are resorting to making an illegal crossing.  

In any case, this approach is not likely to meet the country’s employment demands. The administration is not attempting to match the migrants it is letting into the country to the 9 million job openings. There is no way of knowing whether they will be willing and able to do those jobs. 

The journey undocumented migrants make through South and Central America to reach the United States is fraught with dangers and hardships. Doctors Without Borders says that migrants face extreme risks traveling from Colombia to Panama, especially when they go through the treacherous Darién Gap jungle. The predominant risk along the route, however, is violence. 

Migrants won’t make this journey unless they expect to be able to enter and stay in the United States; Biden’s administration has made this exceptionally likely. It has released more than 2.3 million illegal border crossers into the country, a number that would be much larger if Title 42 had been terminated at the beginning of the Biden presidency instead of several years later.  

In addition, the administration has virtually eliminated illegal crossers’ risk of being deported from the interior of the country. They are home free when they reach the interior, unless they commit a serious crime.  

In fact, Department of Homeland Security Secretary Alejandro Mayorkas’s September 2021 Guidelines for the Enforcement of Civil Immigration Law exempts migrants who just have unlawful status from enforcement proceedings. According to Mayorkas, “The fact an individual is a removable noncitizen will not alone be the basis of an enforcement action against them.”  

This encourages undocumented migrants to keep making illegal crossings until they succeed in reaching the interior of the country. 

Moreover, the ICE Annual Report for Fiscal 2023 indicates that Mayorkas has been quite successful at ensuring compliance with his enforcement guidelines. 

In fiscal 2023, ICE’s Office of Enforcement and Removal Operations (ERO) managed the cases of more than 6.2 million immigrants who were in removal proceedings or subject to final orders of removal. Although 1,292,830 of them were subject to final orders of removal, ERO only removed 142,580 of them, indicating that the danger of being deported is minimal even for migrants who are subject to final deportation orders.  

What’s more, only 44,255 of the 142,580 removals were from the interior of the country. This included 34,193 migrants with criminal convictions, 7,522 with pending criminal charges, and 2,540 who were deportable for violating civil immigration laws. 

In other words, only 5.7 percent of ICE’s 44,255 removals from the interior of the country did not have criminal convictions or pending criminal charges, and unless the Mayorkas enforcement guidelines were being violated, none of them was just here in unlawful status. 

It won’t be possible to deport the migrants the administration has released into the country who do not establish a lawful basis for remaining.  

According to TRAC Immigration, the growth of the backlog has been accelerating at a breakneck pace since the start of the Biden administration, when the backlog was only 1,290,766 cases. By the end of November 2023, the backlog had 3,075,248 cases.  

Adding more judges won’t help. The immigration court has more than 700 judges already, but the Congressional Research Service (CRS) estimated in a July 2023 report that it would take 1,349 judges 10 years to clear the backlog, which was only 1,979,313 cases when CRS made that calculation.  

Frankly, I don’t think it is possible to secure the border when the administration is unwilling to deport illegal border crossers who reach the interior of the country, and the immigration court has too many cases to put them in removal proceedings in any case.  

Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow him at: https://nolanrappaport.blogspot.com.