Biden caused the border crisis — his immigration proclamation won’t fix it 

The White House claims that, “Since his first day in office, President Biden has called on Congress to secure our border and address our broken immigration system. Over the past three years, while Congress has failed to act, the President has acted to secure our border.” 

But that isn’t true. Biden caused the border crisis by reversing the previous administration’s policies without establishing effective alternatives, despite knowing the repercussions. 

During his campaign, he promised to swiftly undo the previous administration’s border security measures. But at a press conference shortly before he began his presidency, Biden told reporters that he would need “the next six months” to rebuild a system to process migrants.  

“It will get done and it will get done quickly but it’s not going to be able to be done on Day 1,” he said. Changing the Trump administration’s policies immediately might lead to having “two million people on our border.”  

Nevertheless, during his first week in office, he issued more than three dozen executive orders and memoranda, virtually all of them reversing or stopping actions taken by the Trump administration.  

Biden’s concern was prescient. There were 1,662,167 encounters with illegal crossers in fiscal 2021, then the highest annual total on record. Encounters rose to 2,214,652 the very next year.  

A proclamation Biden just issued won’t restore Trump’s border security measures or establish effective alternatives.  

Biden must have expected the ACLU and other organizations to challenge it in court, which makes me wonder whether he really intends to implement anything. Is it just a political gesture intended to overcome broad public disapproval of his border security measures that could hurt him in the upcoming elections?  

The proclamation 

When there has been an average of 2,500 or more encounters with illegal crossers over seven consecutive calendar days, the proclamation will suspend the entry of aliens who cross the border illegally.  

An interim rule has been issued that makes the following changes in processing illegal crossers when there is a suspension: 

1. Most illegal border crossers will be ineligible for asylum; 

2. Illegal border crossers who are put in expedited removal proceedings will only be referred for a credible fear screening if they express a fear of persecution or torture; and  

3. The United States will continue to adhere to its international obligations by screening individuals who manifest a fear of persecution or torture to determine whether they should be permitted to apply for withholding of removal or Convention Against Torture protections, which require higher burdens of proof than an asylum application.  

These measures will remain in effect until there has been an average of less than 1,500 encounters between the ports of entry over seven consecutive calendar days.  

The courts won’t have any difficulty justifying an order to invalidate the proclamation. 

Biden specifies that he issued it pursuant to his authority under Sections 212(f) of the Immigration and Nationality Act (INA), the pertinent part of which provides that: 
“Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may … suspend the entry of all aliens or any class of aliens … or impose on the entry of aliens any restrictions he may deem to be appropriate.” 

Presumably Biden determined that illegal border crossings are detrimental when a predetermined limit has been exceeded, but not if the same number of aliens make illegal crossing before or after a suspension period or if the limit is exceeded for six calendar days instead of seven.  

In other words, the proclamation isn’t based on whether the entry of any alien or class of aliens is detrimental. It is based on whether the number of illegal crossers has reached a level that makes illegal crossings detrimental, which may not be covered by Section 212(f). 

In addition, Section 212(f) applies to alien entries, not asylum applications. Biden doesn’t have the authority to reject asylum applications when an arbitrary limit on illegal entries has been exceeded. Section 208(a)(1) of the INA grants any alien on American soil the right to apply for asylum, regardless of whether his or her entry was lawful. 

Inadequacy of the proclamation 

The Senate Border Act (Border Act) that Biden is supporting has the same limitations that the proclamation has. Neither would restore the previous administration’s border policies or establish effective alternatives to take their place, and neither would terminate the Biden administration’s policies that encourage illegal immigration, such as eliminating meaningful interior enforcement. 

Department of Homeland Security Secretary Alejandro Mayorkas says in his enforcement guidelines that, “The fact an individual is a removable noncitizen therefore should not alone be the basis of an enforcement action against them.” Enforcement efforts are focused instead on migrants “who pose a threat to national security, public safety, and border security and thus threaten America’s well-being.”  

This shields illegal crossers who have been released into the interior of the country from being put in removal proceedings unless they do something that makes them appear to pose a threat to America’s well-being. Biden’s administration let more than 2.3 million migrants into the country without visas during the first three years of his presidency. 

Moreover, deportable migrants subject to final deportation orders generally aren’t deported. The ICE Annual Report for Fiscal 2023 states that there were 1,292,830 migrants subject to final deportation orders in fiscal 2023, and ICE only removed 142,580 of them.  

What’s more, it isn’t possible to implement the proclamation without cooperation from the Mexican government, and helping the United States to stop illegal border crossings would hurt Mexico financially. 

Very few visas are available to Mexicans who want to work in the United States, so most new workers have to enter illegally. And Mexico depends on the money (remittances) these undocumented Mexican workers send home to their families; remittances totaled $55.9 billion in 2022.  

The takeaway 

If Biden really wanted to end the crisis, he could make a big step toward doing it by restoring the previous administration’s border measures and terminating his own measures that encourage illegal immigration.  

Biden can’t be compelled to comply with either the security measures in the Border Act or in his proclamation. If he is re-elected, he could simply ignore them during his second term in office the way he has ignored the INA’s enforcement provisions during his first term. America cannot afford four more years of Joe Biden. 

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.