The Biden Administration’s Border Policies Are a Success. They Are Also a Failure.

New border policies continue the Trump administration’s unlawful practice of denying asylum seekers their basic legal rights and stranding migrants in inhumane and dangerous conditions.

On its face, the Biden administration has successfully navigated the transition from a border that was essentially closed for nearly three years under the Title 42 public health law. Despite dire predictions that chaotic hordes of migrants would start storming the U.S.-Mexico border when Title 42 was lifted on May 11, 2023, the number of migrants seeking to cross the border illegally has dropped drastically. Instead, migrants are being funneled into a new kind of asylum “lottery” that allots a limited number of appointments each day allowing migrants to seek legal entry in order to pursue their asylum claims in the United States.

Success Also Equals Failure

However, this “success” is at the expense of the migrants themselves.

It is true that many fewer migrants from certain countries are traveling to the U.S.-Mexico border in search of asylum, because they have been funneled to a new program—available only to citizens of Cuba, Haiti, Nicaragua, Venezuela—for which they must apply from their home countries (or at least outside of the United States). These programs are designed to admit as many as 30,000 people per month from each of the four countries.

To qualify, applicants must have a sponsor in the United States and undergo a robust security screening. The program is thus limited to those who can locate a sponsor, obtain a passport, navigate the application process, purchase plane tickets to the United States, and safely remain in their countries until their applications are approved. Even so, there is already a backlog of 1.5 million applications for those 30,000 monthly spots. (A similar program is separately available to citizens of Ukraine.) And while the CHNV program provides two years of “humanitarian parole” and a work permit, it confers no long-term legal status, and beneficiaries must still qualify for asylum or some other pathway toward permanent residence in order to remain in the United States over the long term.

Persons from other countries who arrive at the border can be summarily turned away unless they applied for asylum—and were rejected—in at least one of the countries they passed through on their way to the border. This is analogous to a similar requirement the Trump administration tried to put into place in 2019, but which was struck down in the federal courts as unlawful. Under the Biden plan, there are certain exceptions to this travel ban, but it will be difficult for most asylum seekers to present evidence that they, for example, are subject to an “acute” medical emergency or are in “imminent and extreme danger” if forced to remain in Mexico.

Asylum Seekers at the Border Must Use an App to Secure an Appointment

Even those who make it to the border can only apply for an appointment to appear at the official port of entry by using a smartphone app known as CBP One.

Most people who have made it overland through Mexico to the Mexican side of the U.S.-Mexico border have been robbed of whatever money and belongings they may have possessed, often under conditions of extreme violence. Many have been kidnapped by Mexican cartels and released only once family members paid ransom. A large percentage of female migrants have been raped. Use of the CBP One app is restricted through geo-blocking to persons in the Mexico City area or close to the border, but those at the border typically end up living in makeshift tent camps in dangerous border cities, struggling to keep themselves safe and feed themselves and their family.

The United States government is well aware of these conditions, such that it can be said that these are not collateral but predictable consequences of U.S. policy. The suffering and cruelty to which these migrants are subject are features, not bugs.

Nonetheless, the U.S. government has seen fit to restrict appointments with border officials to those migrants who have made it to the border, possess smartphones, can afford to pay for cellular service or have access to a Wi-Fi signal, can navigate a notoriously unreliable app, and can manage to secure one of the 1,000 appointments that are rolled out each morning and are usually snapped up within minutes.

The Mexican Migrant Shelter System is on the Verge of Collapse

While the new U.S. policies may have reduced the number of people who are crossing the border into the United States, it has increased the number of migrants who find themselves stuck in Mexico. Moreover, these new policies have done nothing to address the violence to which migrants are subject in Mexico.

Some migrants, worried about finding themselves stranded in dangerous border cities while hoping for a slot in the new asylum lottery, are choosing to apply for asylum in Mexico instead. But many more are simply halting their journey until they feel more confident about their chances of successfully entering the United States. As a result, they are overwhelming the capacity of the limited number of migrant shelters that can be found in Mexico.

Recent reports from a network of 23 migrant shelters across Mexico indicate that the network is virtually collapsing due to the increasing numbers of migrants seeking their services. Sandra García Álvarez, the Executive Director of the Red de Documentación de las Organizaciones Defensors de Migrantes (REDODEM) in Mexico, said in a recent webinar that the situation these shelters are facing is no longer merely a crisis but a full-fledged disaster—perhaps a permanent one.

All shelters in Mexico are at or above capacity. Recently, the largest migrant shelter in Mexico City was forced to close, and the shelter has begun shipping migrants to other states in Mexico. Many of those shelters, in turn, have reached up to 800% of their normal capacity. 

García Álvarez calls U.S. and Mexican government policies "exploitative models" that put the burden of the migration crisis on volunteer- and civil society-led shelters. Government policies, which are made based on political and electoral interests, do not prioritize the rights and safety of individuals in forced human mobility. And migrants lack access to the most minimal conditions needed to meet their basic protection and humanitarian needs.

No Easy Solutions

It is important to remember that the right to seek asylum is protected under both international and domestic U.S. law. This protection applies regardless of how, when or why a person arrives in a country and asks for protection. This means that anyone arriving at an international border and asking for protection should be allowed to enter the country to seek asylum. They should not be faced with a “lottery” or other barriers to even asking for asylum.

I’m not suggesting there are any solutions to how to handle the numbers of people showing up at the U.S. border seeking asylum or just the means to feed themselves and their families. What we see at our border is just a snapshot of a larger problem of global migration. The global migration crisis is largely one of forced migration: people who are compelled to leave their home countries because remaining is untenable, for reasons including, but not limited to, persecution, poverty, violence, corruption, climate change or war.

As poet Warsan Shire so famously put it, “No one leaves home unless home is the mouth of shark.”

But a good start here in the United States might be what Dara Lind, Senior Fellow at the American Immigration Council, suggests in her recent guest essay in the New York Times, “The U.S. Keeps Telling People to Come the ‘Right Way.’ They’re Listening.”

“[I]magine a world,” Lind writes, “in which the thousands of military and civilian personnel that were mustered to the border in anticipation of a surge of illegal crossings—a surge that didn’t materialize—were instead mobilized to meet the people who we already know are waiting for their chance to follow the law.”