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Biden’s Border Order Is Kabuki

Don’t be fooled; stronger action is available without more laws.

President Biden Delivers State Of The Union Address

Joe Biden is playing voters for suckers. He thinks he can snap up their votes with some sleight-of-hand new policy on the southern border. This all comes cynically as the border is emerging as a major issue in the campaign for president; only 28 percent of voters approve of Biden’s handling of the matter so far, and voters overall mark it as their second biggest concern, after the economy. But why fix anything when you can just fake the rubes out?

Biden took executive action earlier this month to turn away asylum seekers who cross the southern border illegally when the weekly average of daily border crossings exceeds 2,500 between ports of entry (it has exceeded that number consistently since Biden took office, averaging about 4,500.) Administration officials, reports the Hill, “walked a tightrope announcing the order, a forceful but targeted shift on asylum rights — one that administration officials said is not comparable to the Trump administration’s system-wide crackdowns.”


Well, maybe. The president’s decree certainly rhymes with a 2018 Trump policy, invoking the same powers to deny people seeking asylum. Federal courts blocked that one. The ACLU says it will challenge the Biden ban as well.

Otherwise, all well and good—except when you drill down a bit. For the last three years, Biden policy allowed nearly 5,000 asylum seekers to illegally cross the border daily, seven days a week. That number meant the southern border alone produced a million immigrants every 200-odd days, a significant number given otherwise only about 1 million legal green card–type immigrants are allowed into the U.S. each year.

The border does not discriminate. In addition to the flood of poor Mexicans entering the U.S. this way, the in-flow from the southern border is chock-a-block with Serbs, Chinese, Central and South Americans, as well as Africans from a multitude of countries. Almost none of those people got there on their own, benefiting instead from organized crime and human traffickers to help them make the arduous journey from say Nigeria to Texas. It was worth it to most, as standard green card applications (except for spouses of American citizens) can be backed up for years, even decades for certain categories. Why wait when you can be one of 4,500 lucky daily winners? Reducing that 4,500 to 2,500 a day is good, one guesses, as it means Biden policy only comes close to doubling immigrant numbers yearly.

What was left untouched by the new executive order was the Biden method for handling those 2,500 claiming asylum.

Humanitarian parole is a discretionary mechanism of the U.S. Citizenship and Immigration Service to allow individuals to stay in the U.S. on a (theoretically) short-term basis for urgent humanitarian reasons or significant public benefit. The program was never intended to replace regular visas or green cards, but rather to be a temporary relief measure.


Prior to Biden, humanitarian parole was typically granted in cases involving medical treatment not available in the individual’s home country, urgent family needs, or situations where the person can contribute significantly to the public interest, say as an artist fleeing a repressive government. Pre-Biden, humanitarian parole was decided mostly on a case-by-case basis.

The previous two administrations averaged about 5,000 individually-selected cases per year, not per day as under Biden. Past uses of mass parole include the one-time flood of migrants after the Vietnam War (340,000 people; 75 “Biden Border Days”) and the Mariel Boatlift (125,000; 27 “Biden Border Days”) from Cuba. Every administration, Republican and Democratic, used parole in emergencies; before Biden, it was never the cornerstone of an ongoing mass migration program. Parole used this way is part of the asylum process which is being abused daily on the southern border.

Asylum applicants must demonstrate that at home they would be persecuted on account of race, religion, nationality, politics, or social group. The definition of those five protected grounds varies with American domestic politics. For example, since 1994, LGBT status has been a possible grounds of asylum. Victims of domestic violence were granted consideration for asylum under the Obama administration, but that was rolled back under Trump.

However, asylum never has been and was never intended to stretch to economic situations covering almost everyone in a country. “Seeking a better life” has never been grounds for asylum. 

Until Biden. Economic immigrants without legitimate claims to asylum have taken advantage of slow processing by American authorities. A Mexican man caught at the border who says he came to find a job may be sent back almost immediately. Should he claim asylum, the U.S. is obligated to adjudicate his case, however frivolous.

Clinton’s 1996 Illegal Immigration Reform and Immigrant Responsibility Act requires detention for those seeking asylum during processing. But for logistical and political reasons, prior administrations set most asylum-seekers to wait at large in America. Asylum-seekers become eligible for work authorization if their case pends for more than 150 days—as almost all do. 

Trump enforced the letter of the law, ending this catch-and-release system. He also negotiated that many asylum-seekers wait for case judgments in Mexico instead of working in the U.S. Biden, of course, nixed Trump’s reforms.

Biden’s new executive order also contains loopholes for unaccompanied minors, and those applying at a formal port of entry, who won't count against the 2,500 daily limit. In May 2017, when Trump made an exception for minors, the number of unaccompanied children soared by 329 percent. The smugglers are quick to adjust to any changes in U.S. policy.

Biden of course was equally quick to blame his opposition for the mess he created. While senior administration officials did not explicitly tie the timing of the executive order to the election, they argued the measure was a result of congressional Republicans’ inaction. “If Congress refuses to act, and if congressional Republicans refuse to act, the president is prepared to do so,” one official told reporters. The president and White House officials previously said it was up to Congress to enact changes at the border and suggested Biden’s hands were tied on the issues. They never were.

Republicans chastised Biden for waiting to take executive action on the border and argued this measure is too little, too late. They are correct. It made no sense for Biden to throw open the southern border to faux asylum claims in the first place. It made even less sense for him to maintain there was nothing he could do about the crisis he created, that it was up to Congress alone to fix it, when obviously the executive orders issued by Trump were always available, as well as the weak tea of Biden's own order. When angry Joe Biden says that there was nothing he could do about the southern border without Congress acting, he was lying.

The border crisis is caused solely by Biden’s decision to employ humanitarian parole on a large scale. That decision can be reversed at any time. Reducing the daily influx of asylum claimants from 4,500 to 2,500 just months before the presidential election is indeed too little, too late.