Biden’s Not ‘Failing’ to Prevent Illegal Entries — Because He’s Not Trying

Hundreds of thousands of aliens are entering illegally because the president doesn’t want to stop them

By Andrew R. Arthur on August 22, 2022

Washington Post columnist Henry Olsen argued last week that “Biden’s failed immigration policy should be a scandal”. With due respect, Olsen misses the point. Biden’s immigration policy hasn’t “failed”. To the contrary, it’s working perfectly — for the administration. Hundreds of thousands of aliens are entering illegally because Biden’s border objective isn’t to stop illegal entrants. Getting them into our legal system to apply for asylum, regardless of whether they are eligible for that protection, is.

Olsen shouldn’t feel bad, however. Nearly every critic of the president’s Southwest border policies makes the same mistake.

Illegal Entries Hit Record Highs. The columnist lists the same problems that many others, including me, have identified with respect to Biden’s record at the border.

With two months left to go in FY 2022, Border Patrol agents at the Southwest border have already set a new yearly record for apprehensions, beating the previous record set in FY 2021, also largely under Biden. By the middle of September, the number of illegal entrants apprehended at the U.S.-Mexico line under the current administration will have surpassed the total there during all 96 months of the Obama administration.

1 Million-Plus Illegal Migrants Released Under Biden, Despite Detention Mandate. While 53 percent of the 3.191 million migrants apprehended by Border Patrol at the Southwest border during the Biden administration have been expelled pursuant to CDC orders issued under Title 42 of the U.S. Code in response to the Covid-19 pandemic (orders first issued under Trump), more than 1.129 million others stopped by CBP there were released into the United States through the end of June.

That’s despite the fact that all inadmissible aliens encountered by CBP at the border (including illegal migrants) are supposed to be detained until they are either granted immigration benefits or removed, under a congressional mandate that dates back to 1903.

Title 42 is a public-health policy, but it’s the only policy that currently deters illegal entries at the border. And, even though DHS has warned that the number of aliens entering illegally will more than double from their already historic highs post-Title 42, the administration attempted to terminate those orders in late May, only to be enjoined in that effort by a federal district court judge on May 20 (a ruling the administration is currently appealing).

Court Cases Will Take Years, Assuming Migrants Ever Appear. As Olsen notes with respect to those illegal entrants who have been released at the border:

Most will have to appear for court hearings to assess their right to remain, but our immigration court system is hopelessly overloaded. It could be years before these cases are heard. Many migrants — 10 to 20 percent — will skip their hearing, secure in the knowledge that the system will have likely lost track of them.

Most of that statement is correct. It will be years before nearly all those cases are heard, particularly given that the administration is allowing some of those aliens up to a year to settle into the United States before even beginning the process, and that an average of 818 days passes between immigration hearings in any individual case (it can take four hearings or more before a decision is issued in a case).

As for aliens “skipping” their hearings, Olsen gets the 10 to 20 percent figure from a PolitiFact Fact Check for which I was one of the sources. As I explained therein: “At best, calculating in absentia rates is an art, not a science.” I stand by that statement, but evidence shows that the in-absentia rate for aliens stopped at the border has been much higher historically than 20 percent.

DOJ has published statistics on the outcomes of cases involving aliens encountered by CBP at the border and ports who were released into the United States to apply for asylum between FY 2008 and the fourth quarter of FY 2019. Just fewer than 17 percent of those aliens were granted asylum, while nearly 46 percent never even applied for asylum, and 32.5 percent were ordered removed in absentia when they failed to appear.

If anything, the percentage of illegal entrants released in the past 18 months who will fail to appear in immigration court will be even higher because, as I have explained elsewhere, DHS under Biden is not screening the vast majority of those aliens to assess whether they may qualify for asylum before releasing them. It’s axiomatic that aliens without relief from removal are less likely to appear, and few of the latest arrivals are eligible for any relief.

Releasing Hundreds of Thousands of Illegal Migrants Is Bad for the Country. Olsen explains why releasing hundreds of thousands of illegal migrants is bad for the United States:

It’s bad because it does a nation no good to disrespect its own borders. It’s bad because as the country recovers from the pandemic, allowing massive numbers of people to join the economy means legal residents will have to compete with them for jobs. And it’s bad because it divides our country by flagrantly ignoring the sentiments of the half or so of voters who want illegal immigration to be controlled. So much for “healing the nation.”

Biden’s Not Failing — His Objective Is Not Controlling Illegal Immigration. Every one of those statements is demonstrably true. But you know who doesn’t care about “controlling illegal immigration”? Joe Biden. And right now his is the only opinion that counts.

That’s because the administration either disagrees with those conclusions or has no interest in “respect for our borders”, the effect 1.129 million new unskilled workers will have on the economy, or how “half or so of voters who want illegal immigration to be controlled” feel.

Olsen, again like most critics of Biden’s immigration policies, thinks the White House is trying to comply with the immigration laws, to protect our national sovereignty at the border, and to satisfy the voters. It isn’t, on any of those three counts, but that’s why Olsen and the others think it’s failing when it’s not.

Olsen and most critics who believe Biden’s border policies are failing don’t understand what the president is seeking to accomplish there. They think that Biden is trying to deter illegal entrants and can’t make any headway. He’s not trying because the border security Olsen wants and you probably clamor for isn’t the administration’s objective.

Don’t trust me. Trust Biden’s DHS secretary, Alejandro Mayorkas, who explained in May that the administration’s objective is not reducing “the total number of illegal immigrants coming across” the Southwest border.

Rather, “the objective of the Biden administration” is “to make sure that we have safe, orderly, and legal pathways for individuals to be able to access our legal system”. In other words, the president’s sole border objective is to ensure that every migrant who makes it to U.S. soil can apply for asylum, even if they aren’t eligible for, and will never actually seek, asylum.

Why does Biden want to end Title 42 even though the result will be a massive wave of migrants that will swamp agents and prevent them from stopping drugs, contraband, and criminals? Because expelled migrants can’t apply for asylum, and ensuring illegal migrants can apply for asylum is the goal.

Biden isn’t “failing” to prevent illegal entries because he’s not trying to prevent illegal entries. You may not like the results, but until Congress forces the president to adopt the same border objective as all his predecessors, i.e., controlling the border by deterring aliens from entering the United States illegally, nothing’s going to change. Olsen and you just must live with the consequences, dire as they may be.