It has become an article of faith on the right that the huge number of immigrants flooding our borders is a direct result of Joe Biden refusing to enforce the law. What's more, he's doing it deliberately. His reasons for this act of obvious political suicide vary depending on who you listen to, and mostly range from the absurd (more Democratic voters a decade or two from now!) to the merely implausible (he's soft-hearted).
Reasons aside, though, I've finally gotten curious enough about this to wonder just which immigration laws Biden is supposed to be flouting. I've found a few.
Exhibit A is the "Mayorkas memo," which outlines immigration enforcement priorities. It focuses on felons and other lawbreakers, but one of the targeted groups is those who "are apprehended in the United States after unlawfully entering after November 1, 2020." That may let longstanding residents off the hook, but it pretty obviously includes everyone currently crossing the border. So that can't be the cause of the border surge.
Another popular theory is that Biden has slowed down deportations and other removals. But the evidence here is pretty thin:
Conventional removals:
- Gradually fell under Barack Obama.
- Ticked up and then ticked back down under Donald Trump.
- Ticked down and then back up under Biden.
Removals in 2022 under Biden were only slightly lower than the beginning and ending of Trump's presidency.
But if you include those removed under Title 42, the emergency pandemic authority begun by Trump, Biden has the most aggressive removal numbers of any recent president. To the dismay of his supporters, he initially insisted on keeping it in place—hardly the act of a president who actively wants to flood the border with illegal immigrants. In 2022 he tried to end it, but it was kept in place by the courts until May of this year, when it was finally lifted because the pandemic emergency was over. Nonetheless, Title 42 was in place during all of 2021 and 2022, and encounters at the border were high that entire time and haven't changed much since it was halted.
What else? There's Biden's parole program, of course, which has admitted about 200,000 immigrants this year. However, immigrants are only admitted if they have a sponsoring family, and whatever else you think about this, it relieves pressure on the border.
There's also detention. Critics point to the fact that Biden allows most illegal immigrants to stay in the country until they're seen by a court, rather than detaining them. This is called catch-and-release. But for all his big talk, along with his performative separation of families, detentions were never very high even under Trump:
Detentions ticked up under Trump and then ticked down. The detention level under Biden is lower than the historical average, but not by an awful lot. The truth is that we've always had limited detention capacity, and that limits the number of immigrants who can be held.
As a caveat, I admit these figures are sometimes tricky. It's possible I'm missing something. But I don't think so. If you squint hard, you can make a case that Biden's border policy has been slightly more lenient than Trump's, but only by a smidgen. It's nowhere near different enough to explain the huge number of people crossing the border.
The explanation rather obviously lies elsewhere: the enormous growth in border crossers who are claiming asylum. Like it or not, this triggers legal accountability that just doesn't exist for ordinary illegal immigrants. By law, asylum claims have to be adjudicated, and our enormous backlog of cases guarantees that lots of asylum seekers will be allowed free for years until their cases are heard. There are fixes for this—mainly stricter rules and more judges—but in the meantime lots of people are streaming to the border because they know about asylum and there's not a lot anyone can do about it.
Beyond that, I'd suggest Republicans look to their own masters: the corporate interests who want more immigrants, both legal and illegal. They probably have more influence on this than the ACLU and every bleeding-heart lefty combined.