The Crisis at the Border: A Primer for Confused Americans

commentary

Feb 28, 2024

A Chinese family sits in front of a wall on the U.S.-Mexico border in Jacumba Hot Springs, California, January 23, 2024, photo by Kyodo via Reuters Connect

A Chinese family sits in front of a wall on the U.S.-Mexico border in Jacumba Hot Springs, California, January 23, 2024

Photo by Kyodo via Reuters Connect

President Joe Biden and former President Donald Trump will both be making appearances at the southern U.S. border Thursday, February 29, underscoring how the migrant crisis has become a leading political issue in this election year.

The White House, U.S. Senate, and U.S. House of Representatives have been at loggerheads about how and whether to address the crisis for months. A bipartisan team of senators introduced a bill on February 4 that would have represented the first major changes to U.S. immigration law since 1996—only to have it stall out in the chamber within days.

While that compromise effort is no longer under discussion, lawmakers remain under pressure to address the border crisis, and the administration and congressional leaders are discussing additional proposals. The primary challenge is to reduce the number of migrants arriving while also adhering to American legal and humanitarian responsibilities.

Here's an overview of the issues and measures at the heart of the border crisis.

Who is arriving at the U.S. border and why?

The volume of migrants arriving at the border without prior authorization—a historic high of 3.2 million encounters in fiscal year 2023—is indeed record-breaking. Migrants now hail from a greater diversity of countries than in the past and consist of more families and children.

They make the dangerous trek for many reasons (PDF). Some are fleeing increased violence or political upheaval. Others seek jobs and economic opportunities, in the wake of profound economic dislocations caused by COVID-19, natural disasters, and economic stagnation. There are few lawful paths into the country for migrants driven by those factors. As a result, growing numbers seek to enter the country through the asylum process.

The volume of migration is straining the capacity of the entire immigration system. Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) have struggled to process, detain, or remove arrivals. U.S. Citizenship and Immigration Services (USCIS) has struggled to screen the ballooning number of those seeking to claim asylum. And cities around the country are unable to house the swelling numbers of destitute newcomers.

U.S. Citizenship and Immigration Services has struggled to screen the ballooning number of those seeking to claim asylum.

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How does the asylum process work at the border?

Those who arrive to the United States without advance authorization, but who can establish that they have a credible fear of persecution in their home countries, may be paroled. That means they are allowed in temporarily to apply for asylum. Some people—usually families and unaccompanied children—are more simply paroled into the country with a notice to appear before an immigration judge in the future.

Only a minority of these migrants are ultimately likely to be granted asylum. Although data does not cover all the relevant cases, between 12 percent and 17 percent (PDF) of cases originating with a credible-fear claim that have been decided since 2016 have ended with grants of asylum.

What kind of problems has this created?

Simply put, the U.S. asylum system was never intended to handle such large numbers.

Those who process and screen new arrivals for credible fear of persecution can't keep up. That's why so many migrants are paroled and released into the country until their case can be assessed. It is equally impractical to hold everyone in a detention center until their asylum claims are resolved. Even beyond humanitarian considerations, there are legal limits to who can be detained and for how long.

Court dates for asylum cases are, on average, more than four years out in the future, and even longer for final decisions. Over 3 million cases were pending before immigration courts near the end of 2023, with the backlog growing by 1 million since 2022.

What is the effect on U.S. communities?

Whether it is border towns in Texas or urban areas like New York City, communities face constraints on their abilities to provide shelter or public services to large numbers of new people. The strain is exacerbated by the fact that in many cases, migrants must wait 180 days before they are able to work legally.

New York's mayor estimates that the city will pay $4.6 billion this year to pay for migrants' care. Other public services struggle to meet demand. Our RAND study found that, while federal law guarantees public education to all children regardless of immigration status, many schools struggle with resources to meet these responsibilities. By way of example, from FY2017 through FY2019, Los Angeles County and Harris County (which includes Houston) together received 50,000 new students.

What sort of solutions are being discussed?

One set of measures under discussion would make it harder for migrants to enter or remain in the United States. For example, the short-lived Senate bill included an emergency expulsion authority (PDF) that would allow the Department of Homeland Security to turn away migrants if daily encounters at the border exceed 4,000 a day for a week, and mandate such actions at certain higher numbers of encounters. The proposal would make exceptions only for those asylum seekers who arrive at ports of entry with appointments.

Another measure in the bill would have raised the bar (PDF) for credible-fear screening. It was intended to reduce the numbers of asylum seekers who would meet the standard and are therefore paroled into the country.

There has also been talk of wanting to curtail the administration's current parole programs for those fleeing nations in crises. These programs provide lawful pathways outside the asylum process and offer swift protection for Haitians, Venezuelans, Cubans, Nicaraguans, Afghans, and Ukrainians. They allow qualifying migrants to enter the United States for two years, require them to have a financial supporter in the United States, and make them eligible for work authorization sooner.

Are these measures likely to reduce the tide of arrivals at the border?

They would probably deter or prevent some entries. But recent experience and research also suggest that their effectiveness may be limited and that unintended effects are likely.

Experience with mass expulsions under the Title 42 public-health authority demonstrates that such policies can backfire. While many were expelled during the COVID-19 emergency, repeat attempts to cross the border increased significantly (PDF) while the policy was in effect. Any emergency expulsion modeled on Title 42 risks repeating that experience.

Research shows that tougher enforcement doesn't always deter migrants. Instead, migration patterns adapt to new measures and people find other pathways (PDF) into the country. For example, if the border becomes more difficult to cross, more people might head to formal ports of entry and claim asylum. Conversely, making asylum more difficult—such as by raising the bar for credible fear, as proposed—might increase illegal border crossings and increase human smuggling.

Gutting group parole programs would likely backfire as well. Significantly fewer people from Haiti, Venezuela, Nicaragua, Ukraine, and Afghanistan now show up at the U.S. border without prior authorization or without means of financial support. Restricting or eliminating such parole programs would likely push some from those countries to pursue asylum at the border or seek irregular pathways into the country instead.

All three of these policies risk leaving unprotected many with compelling humanitarian claims for entry into the United States.

What would it take to speed up asylum processing? Would that help?

Some argue that it is the prospects of parole and a lengthy stay in the country that attract migrants who do not have strong claims to asylum. If it takes years to decide cases, applicants get years to work in the United States, send money home, and potentially find another path towards legalization before they get a ruling. Reducing the time to adjudication thus should reduce the appeal of exploiting the asylum system to those without strong asylum claims.

The Senate compromise bill tried to do this. It would have increased immigration court resources, which would enable the Executive Office for Immigration Review (EOIR) to clear its existing backlog of cases faster and reduce time to decision. It would also have boosted USCIS resources and created an expedited process (PDF) for USCIS officers to adjudicate asylum claims arising from border encounters.

In contrast with policies narrowing pathways into the country, reducing processing times would benefit those with stronger asylum claims by giving them timely relief.

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These measures would entail hiring considerably more judges and asylum officers, as well as increasing resources to CBP and ICE, which play a role in processing and monitoring asylum seekers. This could lead to asylum cases being resolved in a matter of months rather than years, but implementing such changes would take time. The effects at the border are unlikely to be dramatic in the short term.

And, as with other proposals, such fixes can have unintended effects, like pushing some to seek undetected entry between ports of entry. Yet, in contrast with policies narrowing pathways into the country, reducing processing times would benefit those with stronger asylum claims by giving them timely relief.

What would it take to address the crisis at the border more effectively?

Taken together, restricting pathways into the country, expediting asylum processing, and better resourcing the whole immigration system may affect the crunch at the border. But the focus on the border distracts attention from the broader crisis of the outdated U.S. immigration system.

U.S. immigration laws are no longer adequate to meet the demands of the U.S. labor market, nor do they account for the powerful factors driving migration. While politically challenging, a holistic update to U.S. immigration laws based on a better understanding of American immigration needs and the factors that are driving people to make the dangerous trek to cross the border would help reduce the numbers of migrants arriving daily to the U.S.-Mexico border and the challenges migration poses to receiving localities. This would require building on the current efforts to provide lawful pathways, easing the burden on host communities, matching immigration policies with the needs of the labor market, and addressing root causes of migration, while adhering to American legal and humanitarian responsibilities.


Elina Treyger is a senior political scientist at RAND. Shelly Culbertson is director of the Infrastructure, Immigration, and Security Operations Program in the RAND Homeland Security Research Division, a senior policy researcher at RAND, and a professor of policy analysis at the Pardee RAND Graduate School.

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