The Biden administration is using new rules to manage the flow of migrants by discouraging them from coming to the U.S.-Mexico border, delaying them once they arrive or removing them if they don’t follow the guidelines.
In the month since the end of the emergency health order used during the pandemic at the border, the United States is again focusing on deterrence to manage immigration.
In May, the Biden administration introduced strict asylum measures when the public health measure known as Title 42 officially ended. Title 42 allowed border officers to quickly expel some migrants to Mexico or their home countries.
Robert McKee Irwin, deputy director of the Global Migration Center at the University of California at Davis, told VOA the Biden administration policies are meant to “complicate arriving to the U.S. and to limit the number of asylum-seekers that are able to attempt to enter and stay in the [country].”
Migrants arriving at the border are processed under Title 8, the U.S. law governing immigration. That law allows migrants to seek asylum or other forms of relief within the United States if they have a legitimate fear of persecution in their home country.
Those who cross the border outside official entry points without authorization will be apprehended. They will either be swiftly removed from the U.S. or go through a lengthy deportation proceeding overseen by an immigration judge. The latter typically applies to families, while single adults will generally undergo the fast removal process unless they can establish a credible fear of returning to their countries.
However, under the Biden administration’s asylum restrictions, migrants who travel through another country must seek and be denied asylum there in order to be eligible to seek asylum in the United States, with exceptions. If migrants don’t follow that rule, they will be deported and barred from returning for at least five years.
“All of these policies are kind of slowing down the process of initiating an asylum claim, to follow through on it and just kind of complicating migration in general,” Irwin said.
In a May conference call with reporters, Biden officials said the U.S. government was implementing a multi-agency plan to humanely manage the border after the lifting of Title 42. That plan was based in enforcement, deterrence, and diplomacy.
"When we talk about deterrence, we mean meaningful consequences for individuals who do not have a lawful basis to remain in the United States; humane migration management throughout the region; and putting in place lawful pathways for individuals who seek to come to the United States. ... They can access protection, legal pathways, parole, temporary work, family reunification, and do not need to put their lives into the hands of smugglers but, rather, can access those pathways from where they are," the U.S. official, who spoke without being identified, practice often used in official conversations with the media.
According to Guadalupe Correa-Cabrera, a professor of policy and government at George Mason University, the U.S. has tried several ways to dissuade migrants from seeking asylum several times over the past three decades.
But they do not work, she said. People still come.
Correa-Cabrera said deterrence leads to increased use of smugglers or migrants taking dangerous routes to get to the United States.
Policies such as Title 42, the Migrant Protection Protocols, metering and asylum turnbacks are some of the restrictive policies used over the years “to manage the border in times when a number of people are desperate to leave their homes and to get into the United States,” she said.
She pointed to Operation Gatekeeper and Operation Hold the Line in 1994 as pivotal moments that solidified the strategy of "prevention through detention."
As border policies grew increasingly stringent and the number of border patrol officers increased, families were permanently separated and unauthorized crossings became more difficult, Correa-Cabrera said.
Yet migrants kept coming to the border, she said. The journey also became more deadly.
In the early 1990s, Correa-Cabrera said, the Clinton administration built walls that closed off the safest and sometimes easiest locations to cross the border, sending migrants to more difficult and remote areas.
The result, according to U.S. Border Patrol data, was more than 8,000 migrant deaths along the U.S-Mexico border since 1998. Migrant advocates say the number is an underestimate.
“What we're doing is just benefiting very terrible networks that have become more and more sophisticated,” Correa-Cabrera said. “[They] make use of technology, social media. It's easier and cheaper for them to transport migrants, communicate with them, and maintain their anonymity through social media.”
Decades of deterrence
As deterrence policies became the norm, the number of migrants encountered and apprehended in between ports of entry increased.
In 2014, the Obama administration faced an increase in migrant arrivals at the southern border and, as a result, significantly expanded family detention. Asylum-seekers were kept in detention without bond while their immigration cases went through the courts.
The Trump administration relied heavily on deterrence and implemented the zero-tolerance policy that separated families and prosecuted parents.
In 2019, it implemented migrant protection protocols, which forced tens of thousands of asylum-seekers to wait in dangerous cities along the U.S.-Mexico border for court dates in the U.S. Finally, during the pandemic years, the administration used Title 42 to expel migrants crossing into the U.S. back to Mexico, resulting in a sudden rise in border crossings by single adults.
Biden and challenges in federal courts
Shortly after the Biden administration’s new asylum rules took effect, the ACLU and other immigration groups sued to challenge the restrictive asylum policy. A hearing is not expected until late July.
In the meantime, a federal judge in Florida issued a temporary injunction, preventing the Biden administration from releasing migrants into the U.S. while they await immigration hearings.
Although the Department of Homeland Security says the number of daily encounters along the U.S.-Mexico border remains low since Title 42 was lifted, the ruling raises overcrowding concerns at already overburdened Border Patrol migrant facilities.
Biden officials are expected to appeal the case to the 11th U.S. Circuit Court of Appeals.
Irwin, from the Global Migration Center, said while challenges at the federal courts are unfolding, migrants are stuck.
“The real solution is to develop a more efficient process of dealing with claims of migrants who seem to have real possibilities of obtaining asylum. … Congress needs to review [U.S. immigration law] … to make things work for the country and for those in need of refuge,” Irwin said.