By Eric Vandenbroeck and co-workers

The Formula For Managing Migration

Throughout the spring, observers across the political spectrum predicted a sudden surge in illegal crossings at the U.S.-Mexican border. For more than a year, over 150,000 people—and often well over 200,000—had been arriving at the southern border each month, straining capacity throughout nearby communities and leaving many awaiting entry to the United States in perilous conditions in Mexico, where they were sometimes vulnerable to exploitation, robbery, and assault. But in May came the expiration of Title 42, a temporary COVID-19 policy that had allowed the U.S. government to expel migrants quickly back into Mexico. Even U.S. President Joe Biden, who had worked to quell mayhem at the border, predicted a sudden influx of migrants.

Instead, the opposite has happened. Far from devolving into chaos, the border has experienced an eerie quiet. In June, the average number of daily unauthorized crossings dropped from more than 6,000 per day over the prior twelve months to 3,300. There were fewer unauthorized arrivals that month than since February 2021, at the height of the COVID-19 pandemic and shortly after Biden took office. Although the numbers have ticked slightly in July to around 4,300 arrivals daily, they have remained far below the prior year’s average.

Much to Washington’s surprise, the Biden administration appears to have hit on a successful formula for managing dysfunction at the border—at least for now. The new migration policy is built around a three-part strategy: tightening enforcement at the U.S.-Mexican border, expanding legal pathways for entry, and vetting candidates for asylum and humanitarian protection in countries of origin rather than primarily at the border itself. This integrated approach departs from the previous strategy of confining the entry decision-making process almost exclusively to the border. All three policy elements are embryonic, and more migrants could attempt to cross into the country in the coming months as the deadly summer heat at the border gives way to a cooler fall. But so far, in the crucial months following the end of Title 42, the Biden administration’s strategy appears to be working.

The new policy faces challenges: its survival and chances of success depend on whether there is sufficient political will and logistical capacity to continue building it out and, just as important, whether U.S. courts deem it legal. But suppose the strategy works over the long term. In that case, it will mark an ambitious effort to reimagine how governments manage the flow of migrants in a safer, more organized way that moves the admittance process further upstream, long before most potential migrants reach the border. And the need for such an effort grows more crucial by the day. With people worldwide more mobile than ever and many developed countries facing labor shortages, governments struggle to ensure that people arrive through legal pathways.

Migration systems have long been plagued by a mismatch between the supply of willing workers abroad, some of whom also have protection needs, and the narrow legal avenues for entry, despite the real demand for labor in destination countries. Without legal pathways, irregular migration routes multiply. This deficit has exposed migrants to dangerous journeys, undermined the credibility of immigration systems, and poisoned the politics around immigration in country after country, not least in the United States. If the Biden administration’s approach succeeds, it would set a precedent that could be adapted elsewhere to benefit both migrants and the destination countries.

 

Migration, Reimagined

First, however, the policy has to work. So far, the Biden administration’s strategy of expanding legal pathways while reducing unauthorized migration appears to be paying off. But the new policy nonetheless faces a slew of legal and logistical challenges that threaten its viability in the short term. Determining the strategy’s chances of survival requires assessing its three elements, how they fit together, and the hurdles they must overcome.

The first—and most visible—measure has received the most attention. The overwhelming majority of illegal crossings at the U.S.-Mexican border occur between ports of entry—designated crossing points where people may enter the country—in the vast unoccupied stretches of desert and scrub that characterize the southern boundary. The Biden administration has made it much harder for people to seek asylum if they enter the country without authorization by creating a presumption of ineligibility for asylum for anyone who crosses between ports of entry. Unaccompanied minors are exempt from this rule, but others who enter an unauthorized location must now demonstrate that they qualify for asylum. Those deemed ineligible can be deported to Mexico or their country of origin. Once formally removed, they face a five-year ban on reentering the United States, under threat of criminal prosecution. In exchange, asylum seekers can now make an appointment through an online app, CPB One, and eventually present themselves at a port of entry to be processed for admission into the United States, with roughly 1,450 appointment slots available daily.

The threat of deportation appears to be a credible deterrent to many potential unauthorized migrants, as they risk being sent home directly and losing the money they have invested in the journey north. At the same time, access to appointments at ports of entry has created an orderly process through which migrants can request entry.

But these measures represent more of a change on paper than they do in practice. In reality, tens of thousands of unauthorized migrants are still being released into the United States to wait for immigration court hearings. The U.S. government does not have the institutional capacity to carry out adequate numbers of initial screenings that determine whether an asylum seeker has a credible fear of persecution or torture. Unable to identify those who are ineligible for asylum under the new rules and subsequently deport them, the U.S. government has often reverted to the status quo. It allows migrants—especially families which the government is reluctant to hold in detention—to wait out the process in the United States or, in some cases, to return voluntarily to Mexico.

Meanwhile, those who present themselves at ports of entry with CBP One appointments are still not undergoing immediate screenings for asylum because there are not enough asylum officers. Instead, these migrants are admitted to the country and later allowed to apply for asylum. Once they apply, they are assigned a hearing date, often many years later, and are consigned to legal limbo. But even though the reality on the ground marks less of a change than the new rules suggest, the shift toward greater border enforcement and expanded deportation has loomed large enough that it may have reduced the number of migrants arriving at the border.

Perhaps even more important, the Biden administration has understood that enforcement alone will never stop migrants who are determined to enter the United States. So the administration has combined enhanced enforcement with a second measure: the expansion of legal pathways for entry for migrants from Latin America and the Caribbean. By targeting the groups from Latin America and the Caribbean that are most likely to attempt a dangerous journey north with a smuggler, this policy encourages legal avenues for entry while discouraging illegal entries.

For instance, the Biden administration has expanded seasonal employment visas, which have skyrocketed from 275,000 in 2020 to over 422,000 in 2022—an increase that has mostly benefited Mexicans and Central Americans. This expansion indicates a growth in demand for agricultural seasonal workers and a policy decision to expand the number of nonagricultural seasonal visas.

But the largest expansion of legal pathways is through a new set of sponsorship initiatives. This program allows U.S. citizens and residents to request entry for someone living abroad; these foreigners are then admitted under what is known as “humanitarian parole.” The use of humanitarian parole long predates today’s surge at the southern border; U.S. presidents have invoked such authority to expedite the entry of vulnerable populations worldwide since the 1950s, including Cubans in the 1960s, Vietnamese in the 1970s and Afghans in 2021. More recently, the Biden administration has expanded this process by allowing U.S. citizens and legal residents to sponsor first Ukrainians escaping Russia’s invasion and then later Cubans, Haitians, Nicaraguans, and Venezuelans fleeing authoritarian governments or collapsing states. So far, over 140,000 Ukrainians and 160,000 Cubans, Haitians, Nicaraguans, and Venezuelans have been admitted to the United States through these sponsorship programs over the past two years, supported by religious and civic groups, family members, and average citizens. The Ukrainian program is uncapped, and up to 30,000 nationals from the four Latin American and Caribbean countries can be admitted each month as of this year.

The Biden administration has also created a series of family sponsorship programs for citizens of Colombia, El Salvador, Guatemala, and Honduras, and it has promised to revive halted programs for Cuba and Haiti. This process allows those approved for a family-based visa to enter the United States before the visa has been issued, often speeding up the process by several years and deterring people from preemptively migrating illegally. The administration has also restarted the Special Cuban Migration Program. This lottery offered 20,000 Cubans special entry to the United States each year and was created as a result of a 1994 agreement between the U.S. and Cuban governments to control migration from the island. All these steps represent a major expansion of legal pathways for admittance into the United States—one large enough that the administration hopes it encourages would-be migrants to seek lawful ways of entering the country.

The third and final element of the strategy has been to relocate much of the vetting processes for humanitarian protection to the countries of origin rather than having it take place almost entirely at the U.S. border through asylum applications. The United States has previously attempted small-scale iterations of this upstream vetting process, mostly in Central America and Colombia. The current effort, however, represents a considerable expansion of refugee resettlement from the region, with the Biden administration hoping to admit around 5,000 refugees a month from the Americas through this process.

Expanding the resettlement program will take time, requiring the tools to identify potential refugees and the resources to resettle them. As part of this effort, the administration has announced that it is opening screening centers known as “safe mobility offices” in countries throughout Latin America to vet possible candidates for refugee resettlement, as well as those eligible for other legal pathways. For now, offices with limited services are opening in Colombia, Costa Rica, and Guatemala. But the administration has announced plans to open more offices across the hemisphere and increase the kinds of vetting they can do. The Canadian and Spanish governments have also come on board, offering refugee resettlement and employment-based visas through these U.S. offices.

The Biden administration has encountered complications in attempting to move the vetting process abroad. Host countries have legitimate concerns that putting safe mobility offices in their territory could generate expectations about migration that cannot be met even with the expanded pathways. This is an especially critical concern in South America, where over five million displaced Venezuelans already live in other countries, and many countries have gone to great pains to integrate them into schools, labor markets, and local communities. As the overseas vetting program expands, the Biden administration may want to move discreetly and build up its screening capacity to effectively reach target groups before advertising the process to the wider population.

 

Against The Clock

The greatest threat to the new strategy may be the lawsuits the Biden administration faces from all sides. Civil rights groups oppose limits on asylum eligibility between ports of entry. They have invoked U.S. immigration law, which mandates access to asylum for all, including those who cannot safely wait for an appointment at a legal crossing point or apply for asylum in a transit country. A district court judge has already struck down the policy change, but an appeals court has allowed the rule to stand while considering the case. Conversely, a group of Republican governors has filed a lawsuit targeting the sponsorship program, arguing that the decision to grant humanitarian parole to large groups of people based on nationality violates the purpose of humanitarian parole, which was designed for case-by-case individual choices. If the ruling against the asylum rule stands, it will hollow out the enforcement part of the strategy. In contrast, a ruling against the sponsorship program would eliminate one of the most important legal pathways that have emerged in recent months. Given that the Biden administration’s strategy depends on all three elements functioning together, a blow to anyone could prove fatal to the strategy as a whole.

It is possible that the administration will win both sets of cases or that these cases will wind their way through the courts for months or years without the policies being stopped, giving the strategy time to take hold. Recent Supreme Court decisions, including one in June that allowed the Biden administration to set priorities on enforcement and detention, seem to signal some deference to federal government discretion in setting immigration policy, and many cases take years to resolve fully.

But even if the courts favor the Biden administration, the strategy could still fall apart under its weight. Depending on employer demand, seasonal worker programs will take time to develop. Although much faster, sponsorship programs need to be better targeted, as they are contingent on migrants having sponsors and passports, which are difficult requirements for some potential migrants to meet. The refugee resettlement system is still being scaled up throughout the hemisphere. And even for those admitted to the United States through legal pathways, it could still take years for immigration courts to reach a final decision, even as the Biden administration is working to implement a policy that would allow faster proceedings by allowing decisions to be made by asylum officers. And, of course, the enforcement capacities at the border are much weaker than they seem on paper. Already, more families are flocking to the border over the past month, anticipating that the U.S. government will be reluctant to detain them.

Real challenges of resources, political will, and legal authority could defeat the Biden administration’s new strategy. As temperatures cool and smugglers learn more about the gaps in new border policies, the number of migrants at the border could swell again. The Biden administration’s strategy makes eminent sense in theory, but implementing it requires expanding current efforts in multiple directions simultaneously in ways that have not been tried before.

However, if the policy survives, evolves, and eventually succeeds, it could reshape migration patterns in the hemisphere for decades. It might not reduce the number of migrants arriving from Latin America and the Caribbean, but it would ensure that those who arrive do so through legal channels, reducing chaos at the border. The United States and the rest of the world have seen the devastation and tragedy of dysfunctional migration systems. A safe, fair, and orderly migration policy in the United States is starting to emerge; if it succeeds, it could serve as an example of what might be possible elsewhere.

 

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