Everything You Ever Wanted To Know About the Immigration Mess
And the Senate debate over how to end it.
[Author’s note: This discussion of immigration comes in two parts. The first part is about the crisis the country faces and the attempt by the Biden administration and the Senate to address it. The second part is about the Republican House bill on immigration and a provision it includes that the Senate negotiators have ignored and that would address the crisis.]
Congress has ground to a halt again—this time over immigration, asylum and parole, and fourteen other terms that the general public is not familiar with. In the Senate, Republicans have held up funding for Ukrainian and Israeli war efforts until Democrats agree to new restrictions on illegal immigration. In the House, Republicans have threatened a government shutdown if Democrats don't agree to a massive immigration bill (H.R.2) that would “secure the border” and that Republicans passed last May on a party-line vote.
Let's leave aside the possibility of another shutdown. There are two things worth considering about this controversy. First, America’s immigration system is a mess and has only gotten messier under Joe Biden's presidency. Illegal immigration has soared in the last two years, a result in part of undocumented immigrants claiming asylum and of the Biden administration granting what’s known as “parole” to hundreds of thousands of aspiring migrants. Democratic mayors have joined Republicans in demanding that the federal government do something about this situation.
Second, the current immigration debate in Congress represents a first salvo in the 2024 presidential and congressional campaigns. Republicans and the Republican nominee for president are going to blame the Democrats for the border crisis—and they’ll have a point! If Democrats don't find a credible way of addressing the crisis, they and the country could have to endure another four years of you know who.
Here is a brief account of what the controversy is about. Fair warning: it's filled with legal complexities.
In line with past legislation, the United States legally admits a little over one million migrants a year. (These include 675,000 with permanent visas, another 400-500,000 family members of immigrants with permanent visas or who have obtained citizenship, and about 50,000 refugees.) But in addition to these 1.1 million or so immigrants, many migrants who do not have legal authorization try and often succeed in entering the country.
In fiscal year 2017 (spanning October 2016 to September 2017, the end of the Obama administration and the beginning of the Trump presidency), U.S. Customs and Border Protection encountered 526,901 migrants trying to enter the country without legal authorization. Numbers rose during first three years of Trump's presidency, but then plummeted back to 646,822 in 2020 during the Covid lockdown. But during Biden's presidency, they shot back up higher than ever. In fiscal year 2023, customs agents encountered 3,201,144 migrants. That's a six-fold increase from fiscal year 2017.
What happened to these migrants and to those the CBP didn't encounter? According to the Department of Homeland Security, about 3.1 million attempted to enter the country through the Southwest border; 600,000 were able to bypass immediate detection; 565,000 were expelled under Trump's Covid-era Title 42 order, which allowed border agents to expel unauthorized migrants without a deportation hearing (which, after let standing, the Biden administration rescinded in May 2023). Some 300,000 received parole, or temporary immigrant status, and another 1.5 million were apprehended, promised a court date, and released. Many of the latter applied for asylum.
This surge in illegal immigration was driven by the breakdown of public order and economic collapse in Venezuela and some Central American countries; many migrants were lured by the hope of gaining employment in a prosperous post-Covid United States. Many correctly saw in Biden a more welcoming attitude toward illegal as well as legal immigrants. What’s novel about the Biden years has been the vastly expanded use of parole and asylum in boosting immigration by those who could not hope to get through normal legal channels.
Asylum and the Courts
The laws governing asylum-seekers and refugees were established in the wake of World War II to accommodate peoples—European Jews, for instance—who feared persecution if they returned to their native lands. The United States endorsed a United Nations protocol and convention on refugees and put it formally into law in the Refugee Act of 1980. A refugee (who applied from abroad) or asylum seeker (who applied in the United States) could be eligible for asylum if they had been persecuted or had a “well-founded fear of persecution on account of [their] race, religion, nationality, membership in a particular social group, or political opinion.” If they were accepted, they would be eligible to work in the United States, and after five years they could apply for citizenship.
Like every other country, the United States does not have to accept every application for asylum or refugee status. The president sets the annual limit. Under Barack Obama, the ceiling was around 80,000, while under Trump, it dropped to an all-time low of 15,000 in FY2021; Biden immediately raised it to 62,500 for FY2022. There is no limit on grants of asylum. For the first 15 years of the twenty-first century, asylum applications were generally in the five-digit range but began to rise under Trump. They then dropped in FY2021 during the Covid-era Title 42 regulations, and then soared under Biden. In FY2022, there were 259,912 applications and in FY2023, 478,885.
The reason for this huge jump in asylum applications was that migrants, often advised by smugglers, widely adopted a tactic for gaining legal admission to the United States. They allowed themselves to be apprehended by border security, often at ports of entry, and then applied for asylum. They were interviewed by an immigration official who determined whether they were eligible for a court hearing on their application. If they were able to establish a fear of persecution, they were given a “notice to appear” in court and, most cases, released. (Immigration and Customs Enforcement facilities can hold only 35,000 undocumented migrants awaiting court hearings.) The definition of what amounts to fear of persecution has steadily broadened to include domestic violence, sexual discrimination, police brutality, and gang violence; the Biden administration has even been considering including the threat of climate change. Families and unaccompanied minors have had to pass a much lower bar in claiming a fear of persecution.
There are not, however, enough judges in immigrant courts to handle so many asylum applicants. Immigration courts suffer from a backlog of nearly 3.1 million cases, and as a result it takes immigrants who are given a notice to appear an average of four years—and sometimes as many as ten years—before their case is scheduled to be heard. In the meantime, they become part of the large population of undocumented immigrants. Many never appear at their court dates. In Los Angeles in 2022, for instance, roughly 72 percent of applicants didn't show up for their court date. This process accelerated under Biden, with the case backlog doubling between January 2021 and December 2023.
The Parole Option
The other way that migrants without papers can be admitted to the United States is through what’s called “parole.” According to the Immigration and Naturalization Act of 1952 and its successor, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, a migrant could be temporarily admitted, that is paroled, “only on a case-by-case basis for urgent humanitarian reasons” and for “significant public benefit.” After a period specified by the attorney general, the migrant would have to apply for normal legal admission.
According to a 1982 clarification by the Immigration and Naturalization Service (predecessor agency of ICE, CBP, and U.S. Citizenship and Immigration Services), parole was supposed to “allow the Attorney General to act only in emergent, individual, and isolated situations, such as in the case of an alien who requires immediate medical attention, and not for the immigration of classes or groups outside the limit of the law.” But under Biden, the use of parole has vastly expanded.
The Biden administration applied it for classes, groups, and nationalities under the aegis of “humanitarian parole.” These include Afghans, Cubans, Haitians, Venezuelans, and Ukrainians, as well as individuals who seek admission at ports of entry. The number of undocumented migrants paroled has skyrocketed from 35,314 in FY 2019 to 130,016 in FY2022 to 301,069 in the first ten months of 2023. These parolees may be given authorization to obtain employment. They may also reapply for parole or for permanent resident status after their initial period expires.
To sum up: of the 3.1 million undocumented immigrants who entered the United States at the Southwest border in FY 2023, about 1.5 million entered the maze of the immigrant court system, 300,000 were paroled, and 600,000 got through undetected. That's about 2.4 million undocumented migrants in addition to the 1.1 million authorized to receive permanent visas under current immigration law. That's an influx of undocumented immigrants that matches the population of Chicago or Houston. Given that migrants who were expelled could try again, America's borders have been de facto open during the first three years of the Biden administration.
Many migrants stayed in the Southwest and West, where they have taxed the ability of towns and cities to provide services. The city of El Paso spent $89 million last year on services, for example, and California spent $900 million. But many migrants have made their way to northern cities and towns—some as a result of being bused there by Republican governors, but others flown in by federally-funded liberal organizations, notably Catholic Charities USA. The cost of sheltering them and the difficulty of maintaining public order in these cities have outraged citizens and their public officials, most of whom are Democrats.
About 150,000 undocumented migrants have made their way to New York City. Under New York's right-to-shelter rule, the city has to find housing for them. But by the end of this year, it was no longer doing so. As Mayor Eric Adams told a press conference in October:
There’s two schools of thought in the city right now. One school of thought states you can come from anywhere on the globe and come to New York and we are responsible, on taxpayers’ limited resources, to take care of you for as long as you want: food, shelter, clothing, washing your sheets, everything, medical care, psychological care for as long as you want. And it’s on New York City taxpayer’s dime. And there’s another school of thought: that we disagree.
In a Quinnipiac poll of New York City residents last fall, 62 percent agreed with Adams that the surge of migrants “could destroy the city.”
In Chicago, about 34,000 migrants have come from Texas; caring for them cost $361 million last year. The city council has put a referendum on the March primary election ballot to decide whether Chicago should remain a "sanctuary city" for migrants that rejects federal enforcement of immigration law. When 1200 migrants arrived in Edison, New Jersey, a town of 100,000, Democratic mayor Sam Joshi said the town couldn't accommodate them. “Our position in Edison Township is that they’re not welcome here,” he said. “They’re illegal, and they belong on the other side of the border.”
Facing the ire of Democrats as well as Republicans, Biden sought to stanch the flow of illegal immigrants. In May of last year, when Trump's Title 42 policy expired, Biden instituted new rules governing the application for asylum. Applicants could only apply online or from processing centers in their countries or at the port of entry. But if they entered the United States by a way of a third country, their application would only be accepted if they had sought and been denied asylum there. If they were apprehended outside of a port of entry, they could not apply. Outraged by these restrictions, the American Civil Liberties Union and foundation-funded immigration advocacy groups took Biden to court. In July, a district court ruled against the administration, but the next month an appeals court, which is now deciding the case, stayed the district court’s ruling.
In the immediate aftermath of Biden's new rule, the number of undocumented migrants trying to cross the border dropped. But by the summer's end, it had resumed its prior pace and set a new record in December. The new rules seem to have had little effect. It may be that immigrants at ports of entry lie to overworked, understaffed border officials about whether they have been denied asylum in a third country. Or if they are caught crossing outside the ports of entry, they ask for asylum on the tougher standards for what's called “withholding of removal,” or if families or unaccompanied minors are apprehended, they may be granted exception to the tougher standards. Border officials are also being flooded with online requests for a hearing on asylum, most of which are being granted.
The Senate Republican Plan
Last November, Senate Republicans unveiled a set of proposals on illegal immigration that they demanded the Senate adopt as part of the proposal for military aid to Ukraine and Israel. Republicans wanted Trump's border wall completed, and they wanted the rules on asylum and parole toughened. Instead of having to convince a border officer that there was a “significant possibility” that their claim of asylum would be accepted by a court, applicants would have show that it was “more likely than not” that their claim would be accepted. The Republicans wanted to eliminate the “broad class-based criterion for humanitarian parole.” They wanted parole to be granted “rarely” and only for a year with the possibility of one year extension. They also wanted the Biden restrictions on application for asylum, which were under court review, codified into law. And they wanted families facing court hearings held in detention rather than released on their own recognizance. Finally, they wanted other claimants returned to a contiguous country—Mexico in this case—while they awaited immigration court hearings.
Leading Democratic Senators rejected the Republican proposals. California Senator Alex Padilla warned that the proposals would “eviscerate our asylum system, endangering families and children fleeing violence and persecution.” The ACLU assembled scores of immigration advocacy groups to reject “the anti-immigrant proposals that would gut our asylum system.” But Biden urged Democrats to try and reach agreement with the Republicans on reform proposals. In December, a bipartisan group led by Oklahoma Republican James Lankford, Arizona Independent Kyrsten Sinema, and Connecticut Democrat Chris Murphy began meeting to hammer out a deal.
This group hasn't yet come up with a proposal. What is known is that the group, at Biden's urging, has agreed on some proposals for toughening asylum criteria, but has failed to agree on reforming the administration's use of parole. The fate of other proposals is unknown. Nolan Rappaport, who served as minority counsel for the House Subcommittee on Immigration, Border Security and Claims, and who writes about immigration for The Hill, doesn't think that, even if the bipartisan groups accepted the Republican proposals, they would “stem the tide of illegal border crossers.”
Rappaport points out that the wall could take at least ten years to complete in the areas where it would be most needed. He thinks that even the new criteria for establishing a credible fear of persecution would not prevent an applicant from “using a bogus persecution claim to get into the country.” Applicants could also ask for the "withholding of removal" provision. Nothing in the plan would address the huge backlog of asylum court cases. The restrictions on parole and on entry points for asylum applicants would only encourage more illegal border crossings. And he doesn't think Mexico would accept many thousands of detainees. The Republican plan, he concludes, “is likely just to increase the number of illegal crossings.”
Is Rappaport right? I think he makes a good case that even if, in the interest of obtaining aid for Ukraine and Israel, Senate Republicans and Democrats make a deal, it's not likely to end the crisis on the border. It is also unlikely to get through the House, whose bill contains provisions that more clearly address the rising numbers of migrants trying to get into the country.
More on that—and on a provision in H.R.2 that might actually work but is unlikely to get adopted because of the opposition of business—in part two of this essay.
John B. Judis is author of The Politics of Our Time: Populism, Nationalism, Socialism and, with Ruy Teixeira, Where Have All the Democrats Gone?