Biden’s pledge to shut down border points to policy shortfalls

President Biden’s surprise declaration Friday that he would “shut down” the southern border when illegal crossings surge to overwhelming levels illustrates how his many other efforts to address immigration have fallen short of their goals.

Biden signed more executive orders related to immigration than any other topic on his first day in office. He’s taken more than 500 executive actions since then, already surpassing former president Donald Trump’s four-year total, according to a recent tally by the nonpartisan Migration Policy Institute (MPI).

But one of Biden’s most active areas of policymaking has become one of his biggest vulnerabilities to reelection. The president’s management of the southern border and immigration is his worst-rated issue in polls, and record numbers of illegal crossings have galvanized Republicans, undermined the president’s push for Ukraine aid and played to the perceived strengths of Trump, the GOP front-runner.

Several of the Biden administration’s signature initiatives intended to make the immigration system fairer and more orderly have stalled out or remained too limited to significantly curb illegal entries and reduce chaos at the border, according to analysts, and current and former administration officials.

“This is the area where the gap between the president and Trump is the widest, and where the country seems to have least confidence in the president,” said Muzaffar Chishti, an MPI senior fellow and one of the report’s authors.

Last month 249,785 illegal crossings were recorded along the U.S.-Mexico border, the highest monthly total ever, and Biden officials acknowledge the majority of the migrants were released into the United States with pending claims for protection. The latest influx has worsened strains on New York, Chicago, Denver and other cities whose Democratic mayors are pleading for more federal aid to shelter and assist the newcomers, including the thousands of migrants sent by Texas Gov. Greg Abbott (R).

The political pressure on Biden has been growing, with Trump saying the issue won’t be fixed until he reclaims the White House and Abbott testing the president - and federal law - by seizing a public park along the border and denying access to U.S. agents.

Frustrated and anxious about legislative negotiations that would deliver aid to Ukraine and Israel in exchange for new border restrictions, Biden stated Friday that he was willing to accept restrictions to the asylum system and other enforcement measures that were almost unthinkable for Democrats at the beginning of the president’s term. Trump and top Republicans have cast doubt in recent days on a potential deal - which include several measures sought by GOP leaders - with some lawmakers suggesting the changes could help drive down illegal crossings and benefit Biden.

Biden said the bipartisan Senate bill “would be the toughest and fairest set of reforms to secure the border we’ve ever had in our country.”

Measures under discussion include an expansion of the government’s deportation powers and an ability to expel border-crossers - denying them access to the asylum system - when daily crossings surpass 5,000. Republicans have also pushed for new limits on the president’s ability to use executive parole authority to waive in migrants without visas.

Biden said the changes would give him an emergency authority to “shut down the border when it becomes overwhelmed” and said he would “use it the day I sign the bill into law.”

Such statements risk further alienating some Democrats who see efforts to stiffen enforcement as too similar to the Trump-era approach Biden campaigned against, leaving the president in a political squeeze.

Biden’s desire to secure funding for Ukraine and Israel is a key reason he is entertaining the idea of major policy changes on the border backed by Republicans, but the political and logistical challenges he faces have forced him to consider new options, said Theresa Cardinal Brown, a former federal immigration official who is now a senior policy adviser on the issue at the Bipartisan Policy Center in Washington.

“What is happening at the border right now is just unsustainable,” she said. “I do think that that is one of the reasons why the administration is willing to look at different types of policies, policies that candidate Biden in 2020 would not have put on the table.”

Migrants from around the world riding freight trains and buses through Mexico arrived to the U.S. border last month in numbers that often exceeded 10,000 per day, overwhelming U.S. agents. Images of families crawling under barbed wire and climbing through gaps in the border wall cut by smugglers dealt new damage to the president’s approval ratings on the issue. Biden officials once more turned to Mexico for enforcement help, and in recent weeks illegal crossings have eased.

The White House declined to answer questions on the record for this article. Biden officials say their broader strategy - expanding opportunities for migrants to arrive legally while applying tougher penalties to those who break the law - needs more time and resources.

The administration has made significant strides toward rebuilding the country’s legal immigration system, they say, and the number of migrants being deported or returned is now higher than under Trump.

But several of the initiatives the administration introduced with fanfare - programs that symbolized the type of balance sought by the president between compassion and firm enforcement - have fizzled out or fallen short.

One problem for the Biden administration: The success of its policy initiatives relies in part on funding from Congress, and therefore support from at least some Republican lawmakers. The current supplemental request, pending since October, seeks roughly $14 billion to add more border agents, immigration judges and deportation officers.

- - -

What Biden has tried

Biden officials announced a new policy in March 2022 that would empower lower-level asylum officers to settle claims that historically have required a court hearing with a judge. They installed more than 500 videoconferencing booths at processing facilities for migrants in U.S. custody along the border. The asylum officers were authorized to grant asylum, but if they denied a claim, the applicant could still appeal to the government’s badly-clogged immigration courts.

Department of Homeland Security data show the program did not reach a scale that would have a significant influence on the numbers. At the program’s high point in March, 936 applicants were processed by asylum officers, during a month when U.S. Customs and Border Protection recorded more than 163,000 illegal crossings from Mexico, federal data show.

The administration suspended the program in April for six months to free up personnel as Biden prepared to lift the Title 42 border policy, which U.S. authorities had relied on during the pandemic to rapidly expel migrants without giving them a chance to seek asylum.

Biden then implemented new measures penalizing asylum seekers if they crossed the border illegally or did not apply for protection in other countries they traveled through en route to the U.S. border. Immigration advocates have sued to block the policy, the Circumvention of Lawful Pathways rule.

It too, made little measurable difference on attempted border crossings. Immigration court filings show the rule was applied to only percent of illegal border-crossers between May and September 2023, according to the MPI analysis of the most recent available data.

Biden officials say the measures are being applied more widely now, and remain crucial to their efforts to stiffen consequences for breaking the law.

The administration has also launched a plan to curb record crossings by migrants traveling in family groups with a program called Family Expedited Removal Management (FERM). It uses GPS technology fitted to ankle bracelets to impose curfews and ensure compliance with court orders on a designated head of household for families applying for U.S. protection.

Families are a particular challenge for federal authorities because of a 20-day court limit on the amount of time minors can be held in immigration custody. Biden officials announced in 2021 they would no longer hold families in immigration detention.

The FERM program currently has fewer than 1,000 enrollees, according to Immigration and Customs Enforcement data obtained by The Washington Post, at a time when 100,000 to 120,000 migrants have been crossing illegally each month in family groups. Biden officials say that they are expanding FERM, families are not getting a pass at the border and they have deported or returned more than 84,000 individual family members since May.

Andrea Flores, who served as a top border policy official in the White House during Biden’s first seven months, said it’s not enough to tighten asylum requirements if you don’t have enough judges and asylum officers to apply the new rules, so that cases can be resolved in weeks rather than months or years.

“There’s an assumption that if you just add asylum ineligibility, the numbers will go down, but if you don’t have adjudications that will lead to timely removals, you won’t impact changes at the border,” said Flores, now at the immigration advocacy group FWD.us. “With every ineligibility you add, you give smugglers more opportunities to send people through unauthorized channels.”

Biden officials point to a clear measure of a policy success: a sharp drop in illegal crossings by Cubans, Haitians and Nicaraguans last year after the administration allowed migrants from those nations, as well as Venezuela, to seek legal entry to the United States through a U.S. sponsor. The program relies on executive “parole” authority to waive in the migrants - the same presidential powers Republicans are trying to curtail in the senate negotiations.

- - -

Rolling back Trump

When migration spiked in the months after Biden took office, the Biden administration launched a plan, led by Vice President Harris, to address what it called the “root causes” of emigration by promoting job creation and stability in Central America. The strategy was mocked by critics, but illegal crossings by Guatemalans and Hondurans are down about 30 percent since 2021.

The problem: Arrivals from dozens of other nations - including countries in Asia, Africa and Europe - have skyrocketed since then. The number of migrants coming from Venezuela, Colombia, China, India, Senegal, Romania and elsewhere is at historic levels, with many of the new arrivals making requests for asylum.

The U.S. Border Patrol has recorded more than 6 million illegal crossings along the Mexico border since Biden took office, the busiest span in the agency’s 100-year history, in additional to nearly 2 million “gotaways” who were detected but not apprehended.

Seth Stodder, who worked as a top border policy official during the Obama and George W. Bush administrations, said that with Biden officials’ urgency to undo Trump policies “things were set in motion that have been difficult to put back in the bottle.”

“The Trump administration had been brutal, but I think unfortunately the Biden administration overcorrected and overcorrected in a way that didn’t have the resources to accommodate what would be a massive flow. And now we’re in a worse place,” Stodder said.

“They’re doing what they can, but they need a legitimate effort by Congress to rethink the system,” he said.

Some of the president’s immigration advisers have argued enforcement data should not be a gauge of immigration policy success or failure. Mounting political pressure, however, has left Biden’s team no less attuned to border-crossing numbers than its predecessors.

Senior administration officials, who, like others, spoke on the condition of anonymity to discuss internal policymaking, echoed the sentiment that the president is attempting to solve a problem that involves domestic politics, international relations, legal obstacles, national security and humanitarian considerations. He is doing so within a fraught political environment.

The intricacy of the issue has in some ways left Biden more susceptible to simple, easy-to-digest political attacks that expose his vulnerability on the issue of border security, strategists of different political affiliations said.

“Part of the problem for Democrats is that the images stoke emotion - when people see the images of the border, they get angry,” said Doug Heye, a Republican strategist. “So, a white paper saying these are twelve smart policy proposals that we’d like to see enacted doesn’t speak to that emotion. Regardless of the language he uses, that benefits Donald Trump.”

A mix of challenges has complicated Biden’s task - including a lack of funding, adverse legal rulings and highly adaptable smuggling operations that have learned how to target points of weakness in the system.

Democrats have “lost the narrative” on immigration amid negotiations that focus so squarely on border enforcement, said María Teresa Kumar, founder of the advocacy group Voto Latino.

She suggested that rather than negotiating with Republicans on a deal linking border policy with Ukraine funding, Biden and his aides should make a case to the public about the need for more comprehensive immigration reform.

“I would encourage them not to take the bait,” she said. “They should not cede on what is happening with this misunderstanding that the other side might actually be negotiating with them - because they’re not.”

While noting that the president released a plan for an immigration overhaul on the first day of his presidency, Biden’s political allies have acknowledged the difficult bind they now find themselves in as the president tries to mount a reelection bid at a time when the border stands as a clear example of his struggle to enact effective policy. The Republican-controlled House has rejected most of Biden’s border proposals and is not a party to the ongoing negotiations with the Senate.

Other Biden allies have asserted that, despite Republican efforts, immigration will be less of a focus for most voters in November than abortion, democracy, the economy and other issues Biden’s campaign is highlighting.

One former Obama administration official pointed to the 2018 midterm elections - when Republicans sought to focus on the border but Democrats prevailed by championing issues like health care - as a model for this year’s races.

“There is a reality that more people at the end of the day, especially swing voters, are voting on health care, education, jobs,” said the former official, who spoke on the condition of anonymity to speak candidly about Biden’s political prospects.

Rep. Robert Garcia (D-Calif.), who was born in Peru and came to the United States as a child, said he has been troubled by polls showing a hardening of Americans’ views toward border enforcement.

“It is very disheartening and sad to me that so much of our country has turned their backs on the very core of who we are and who we are as immigrants,” Garcia said.

He put the blame squarely on Trump.

“When you have Trump saying my family is poisoning the blood of the country and trying to replace people, of course it will have an impact,” he said, referring to the former president’s recent statements. “He is causing horrific damage.”

- - -

Maria Sacchetti contributed to this report.