What Exactly Is in Biden’s Border Plan?

And why are immigration-enforcement advocates dissatisfied?

By Elizabeth Jacobs on January 16, 2023

As the Center for Immigration Studies has recently reported, the Biden administration announced on January 5, 2023, its new strategy to address the historic crisis on the U.S.-Mexico border. Here are the quick facts about what’s in the plan, why it falls short, and what the U.S. government can do today to stop this madness.

1. Creation of Three New Parole Programs

First, the Biden administration announced that the Department of Homeland Security (DHS) is expanding its use of humanitarian parole by creating new parole programs for Cuban, Haitian, and Nicaraguan migrants. DHS said it modeled these programs off the parole programs it created in 2022 to allow Venezuelans and Ukrainians to enter and work in the United States without obtaining a lawful immigration status.

Under these programs, DHS will parole “up to” an additional 30,000 aliens per month (or 360,000 per year) into the United States without explicit authorization from Congress. Aliens paroled into the United States under these programs will be automatically eligible to apply for work authorization and can stay in the United States for up to two years. DHS also warned that it will return to Mexico up to 30,000 nationals each month from these countries who circumvent this process and attempt to enter the United States without authorization. DHS will, generally, process all others in expedited removal proceedings (explained below) or under the Title 42 public health order.

DHS has not provided any information regarding what happens after two years passes or whether this type of parole can be extended. Nevertheless, it is unlikely that an alien whose parole expires will meet the Biden administration’s enforcement priorities without the existence of other aggravating circumstances. Secretary of Homeland Security Alejandro Mayorkas explicitly stated in his 2021 enforcement guidelines that “the fact that [an alien] is removable ... should not alone be the basis of an enforcement action against them.”

Why Does This Fall Short? First, it’s not legal. Congress has only conferred to DHS narrow authority to parole aliens into the United States on a “case-by-case” basis for “urgent humanitarian or significant public benefit” reasons. Parole is explicitly not meant to circumvent the caps or mechanisms set by Congress, or otherwise to be used as a “supplement” to immigration policy. Second, the Biden administration’s parole programs are designed to allow hundreds of thousands of aliens into the United States to live and work without any legal authorization by Congress. Third, while U.S. Citizenship and Immigration Services (USCIS, the agency charged with administering the country’s legal immigration system) is experiencing historically long processing times and severe budget challenges as a result of the Covid-19 pandemic, it should not be diverting agency resources away from congressionally authorized immigration programs to new parole programs for which there is no statutory authorization.

2. Creation of a Mobile Phone App for Border-Crossers

DHS also announced on January 5, 2023, that it has created a mobile phone app, called “CBP One”, to allow aliens to schedule their unauthorized arrival at the U.S. border with U.S. Customs and Border Protection (CBP). DHS stated that it created the app to ease processing at the border and that it is intended for aliens who are seeking an exemption from expulsion under the Title 42 order on account of “humanitarian reasons based on an individualized assessment of vulnerability”. DHS said that this process is meant to replace the process that CIS uncovered in 2022, which allowed migrants seeking to circumvent the Title 42 order to coordinate with NGOs placed near the border.

Why Does This Fall Short? The Biden administration cannot possibly expect its border strategy to deter illegal immigration when it has created a mobile app for migrants to schedule an appointment for unlawful arrival. The reality is that nearly all migrants who have made asylum claims at the U.S.-Mexico border have done so for purported humanitarian reasons and have requested “individualized assessments of vulnerability” (i.e., credible fear screenings). CBP One, like other aspects of this plan, is designed to hide mass illegal immigration from public view — but not discourage it.

3. Expanding Use of Expedited Removal

DHS also announced that it will be expanding use of its expedited removal authority as part of the administration’s strategy. Expedited removal proceedings, which are governed by section 235(b)(1) of the INA, are designed to quickly remove inadmissible aliens caught at the border. Specifically, the agency stated that the “enhanced expedited removal process will include: dedicating additional resources including personnel, transportation, and facilities; optimizing processes across DHS and DOJ; and working with the State Department and countries in the region to increase repatriations”. DHS also noted that it will continue to process migrants under its recent asylum processing rule, which gave asylum officers (rather than immigration judges) the ability to make a final grant of asylum to aliens who make credible fear claims at the border.

Why Does This Fall Short? As CIS has repeatedly discussed, expedited removal does not work unless the government also gives effect to section 235 of the INA’s detention requirements. Biden’s border plan, however, says nothing about ending its mass-release practices or otherwise increasing detention among border-crossers. Surging resources to DHS’s expedited removal operations is therefore unlikely to be much more than “smoke and mirrors” designed to give the public the impression that the administration will be enforcing federal law in good faith while the same loopholes that have plagued the credible fear process (i.e., the process the government uses to screen aliens who make fear claims after they are placed in expedited removal proceedings) persist.

4. A Forthcoming Regulation to Revive the Third-Country Transit Policy

Last but not least, DHS announced that it intends to issue a proposed regulation to create a “rebuttable presumption of asylum ineligibility” for aliens who fail to use either the Biden administration’s new parole programs or the CBP One app and also fail to seek protection in a country through which they traveled on their way to the United States. (This type of deterrence policy should sound familiar.) The regulation will also impose a five-year ban on reentry for aliens who do not establish a valid claim to protection under the new rule's (not-yet public) standards.

Why Does This Fall Short? While the language for the forthcoming proposed regulation is not yet public, there are reasons to be concerned about how effective the policy will be. As I recently explained, asylum and statutory withholding of removal (which also provides protection against persecution) are not the only forms of immigration relief aliens can receive after they make a credible fear claim. An alien could be ineligible for asylum or statutory withholding, but nevertheless be allowed to remain in the United States because an asylum officer determines that the alien has a “significant possibility” of eligibility for withholding or deferral of removal under the regulations implementing the Convention Against Torture (CAT).

Unless the proposal also amends eligibility for CAT, aliens subject to the third-country transit policy may still receive positive credible fear determinations and be paroled into the United States (albeit, unlawfully because of section 235’s detention requirements). While the CAT regulations impose different standards for eligibility than the asylum laws, asylum officers frequently determine that migrants who make asylum claims are eligible for protection under CAT as well. Furthermore, whether aliens paroled out of detention under these circumstances will count against DHS’s 30,000 parolee per month cap is not clear but also unlikely.

What Needs to Be Done

The Biden administration must commit to closing loopholes in the asylum system and reviving either the Migrant Protection Protocols (MPP, commonly known as the “Remain in Mexico” program) or resuming mandatory detention (as is required by law) for aliens who illegally cross the border in order to effectively deter illegal immigration across the southern border. The near-guarantee of release into the United States has been a primary pull factor for illegal immigration since January 2021 and will continue to be unless the administration makes these necessary changes to its border policies.