Out of the more than three million attempted crossings by undocumented migrants at the southern border in fiscal year 2023, the roughly 2.5 million who got through have created a tremendous fiscal burden on our border as well as in cities and states not only in the Southwest but also in the Midwest and Northeast. Many of these migrants have joined an underclass of workers whom employers have over the decades exploited mercilessly to bring down wages in farming, meatpacking, construction and other vulnerable occupations. At the same time, the ease with which these undocumented migrants have gained passage has cast doubt on America as a nation of enforceable laws.
Using Section 212(f), Mr. Biden can narrow two of the main avenues through which the undocumented enter the country. While some migrants cross the border undetected — some 600,000 in fiscal year 2023 — or overstay visas, a much larger number now claim the right to asylum. In the Refugee Act of 1980, Congress put into law the United Nations convention for granting asylum to migrants who have a “well-founded fear of persecution on account of [their] race, religion, nationality, membership in a particular social group, or political opinion.”
Many migrants, seeking a better life for themselves, sidestep the legal path to citizenship through immigration by claiming to be fleeing persecution. Those who ask for asylum are often released pending a court hearing on their claims, which, because of our overburdened courts, can take an average of four years. About 60 percent of the migrants who finally show up for court dates are denied asylum — a sure sign that the asylum system is being abused. Some don’t show up at all.
Through executive orders, Mr. Biden can require that those who seek asylum do so only at ports of entry and can limit those numbers in view of the backlog of over three million cases. Those who cross at places in between will, if apprehended, be turned back. That would create huge backups, but it would reduce the numbers significantly. Mr. Biden could also repeal his administration’s decision in 2021 to greatly widen the right to asylum to include people who claim to be threatened by domestic and gang violence. That goes well beyond the kind of persecution, epitomized by the Nazi persecution of the Jews, that inspired the United Nations convention and the Refugee Act.
Many undocumented migrants have also been admitted temporarily through what is called parole, which admits migrants “only on a case-by-case basis for urgent humanitarian reasons” or for “significant public benefit.” It was conceived in the 1952 law for admitting, for instance, people who needed extended medical care. But Mr. Biden applied it whole hog to classes, groups and nationalities. These included Afghans, Cubans, Haitians, Venezuelans and Ukrainians. Over 300,000 migrants were admitted in fiscal year 2023.