Excellent progress has been made on reducing the number of illegal crossings between ports of entry on the southern border. Apprehensions dropped from 117,905 in May to 85,536 in June and to 56,399 in July; they rose slightly to 58,038 in August.
White House spokesperson Angelo Fernández Hernández attributes the decrease in illegal crossings to the Biden-Harris administration’s June 4 proclamation on securing the border and an accompanying Interim Final Rule that bars most illegal crossers from seeking asylum when they are apprehended.
But is Hernández right that the administration’s actions caused the reduction? The U.S. worked on the reduction with the Mexican government; perhaps credit should go to the Mexican government instead.
How serious could this administration possibly be in stopping illegal crossings? During its first three and a half years, it released more than 5.4 million migrants into the country who didn’t have visas or other valid entry documents, including at least 99 who were on the terrorist watchlist.
Frankly, I am not impressed with the administration’s proclamation, which suspends the entry of migrants who cross the southern border illegally. The suspension will be discontinued 14 calendar days after the secretary of the Department of Homeland Security determines that encounters with illegal crossers have averaged less than 1,500 per day for seven consecutive calendar days.
The discontinued suspension will then be reinstated if the secretary determines there has been an average of 2,500 or more encounters with illegal crossers for seven consecutive days.
In addition, suspensions don’t necessarily apply to every illegal crosser. The proclamation gives Border Patrol officers discretion to ignore the suspension when they think it is warranted by the “totality of the circumstances” or “operational considerations.”
These conditions are so vague that it will be easy for Border Patrol to justify ignoring the suspension whenever they choose to do so.
The administration simultaneously promulgated an interim final rule providing that migrants who make an illegal crossing during a suspension are ineligible for asylum unless they show by a preponderance of the evidence that “exceptionally compelling circumstances exist,” or they fall within one of the exceptions to the suspension.
Also, illegal crossers who are apprehended during a suspension won’t get a credible fear interview to determine whether they should have an asylum hearing unless they affirmatively manifest a fear of returning to their own counties or request asylum.
What did the administration’s actions accomplish?
They established new asylum restrictions on illegal crossers, but as immigration expert Aaron Reichlin-Melnick points out, this is not a new development. Under the May 2023 administration’s Circumvention of Lawful Pathways regulation, illegal border crossers were presumed to be ineligible for asylum unless they qualified for specified exceptions.
Reichlin-Melnick says that the main change is that Border Patrol officers who take illegal crossers into custody are no longer required to ask them whether they fear persecution. He thinks this has made it easier for the officers to ignore migrants who want to apply for asylum.
If he is right, then Customs and Border Protection needs to take corrective action. But I am more concerned about the likelihood that word will get out about this trap and illegal crossers will bypass it by asking for asylum as soon as they are apprehended, repeating the request until it is acknowledged.
Moreover, the executive actions were announced on June 4. How could migrants around the world find out about the announcement quickly enough to cause the steep drop in illegal crossings that occurred that same month?
Mexico increased its efforts to reduce illegal crossings at its border with the U.S. after a meeting with Secretary of State Antony Blinken in December of last year, but illegal crossings remained well above 100,000 a month, ranging from a low of 117,905 to a high of 249,741.
Federation for American Immigration Reform Media Director Ira Mehlman claims that record-breaking numbers of illegal crossings became a political liability in the face of the upcoming elections. But it wasn’t feasible politically for the administration to do what was necessary to make a substantial reduction in illegal crossings, so it had to persuade the Mexican government to do it.
Mexican President Andrés Manuel López Obrado was receptive, but he wanted compensation for Mexico’s assistance. He said during a “60 Minutes” interview in March that he would fix the root causes of the increase in illegal crossings if the U.S. agreed “to commit $20 billion a year to poor countries in Latin America and the Caribbean, lift sanctions on Venezuela, end the Cuban embargo and legalize millions of law-abiding Mexicans living in the U.S.”
I don’t know the extent to which the administration acceded to these demands or whether additional demands were made during negotiations, but the Mexican government is helping. It is making it harder for migrants traveling through Mexico to reach the American border, which accounts for the precipitous drop in illegal crossings.
Washington Post correspondent Mary Beth Sheridan says that the Mexican government stops migrants crossing Mexico on their way to the United States border at highway checkpoints and removes them from buses and trains, in a massive dragnet that Mexico set up under pressure from the U.S.
The Mexican government can’t afford to deport them, so it just returns them to the southern end of Mexico. When they are released, many of them turn around and head back to the American border. This situation is being called a “merry-go-round.”
Even senior U.S. officials and immigration advocates acknowledge that this is a major factor in the sudden drop in illegal border crossings.
It seems apparent, therefore, that most of the credit for reducing illegal crossings should go to Mexico.
My main concern, however, is that illegal crossings will be allowed to go back up to previous levels when the elections are over. This seems especially likely if the election results put Kamala Harris in the White House next year.
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.
