Don’t buy into the border bill, no matter how hard Biden tries to sell it 

President Joe Biden is supporting the Senate Border Act of 2024 (Border Act), which he says would “be the toughest and fairest set of reforms to secure the border we’ve ever had in our country.” 

“It would give me, as President, a new emergency authority to shut down the border when it becomes overwhelmed,” he said. “And if given that authority, I would use it the day I sign the bill into law.” 

Biden invited former President Donald Trump to join him in lobbying Congress to pass the Border Act, saying, “You know and I know it’s the toughest, most efficient, most effective border security bill this country’s ever seen. So instead of playing politics with the issue, why don’t we just get together and get it done?” 

I disagree. The Border Act would have little, if any, impact on the factors that attract illegal immigration to the United States: it’s too easy for migrants without a visa to get into the United States, and they are reasonably safe from deportation once they have reached the interior of the country.  

The main reason I can think of for Biden to support that bill is to reduce the negative impact that the border crisis will have on him in the upcoming elections. It makes it possible for him to say that he tried to secure the border with a tough bill — and the Republicans prevented it from passing. 

Getting into the United States  

Biden began his presidency on Jan. 20, 2021. As of Sept. 30, 2023, the Border Patrol had recorded nearly 6 million illegal encounters and released more than 3.3 million illegal border crossers into the interior of the country. Approximately 99.7 percent of them are still here. Since then, the Border Patrol has been releasing more than 85 percent of the illegal crossers it apprehends.  

The Border Act would provide the president with the authority to shut down the border, but that authority wouldn’t kick in until the seven-day average number of cumulative encounters with inadmissible migrants averages 4,000 per day. And it would be discretionary unless the seven-day average goes above 5,000 per day — that’s almost 2 million per year. 

In any case, a border shutdown isn’t feasible without cooperation from the Mexican government, and it is far from certain that the Mexican government would cooperate. Among other problems, a reduction in the admission of Mexican workers could significantly reduce the remittances sent home to workers’ families in Mexico; these remittances are a valuable lifeline for millions of Mexican households. Remittances from the United States to Mexico reached a record $55.9 billion in 2022.  

Migrants who do not want to take their chances on an illegal crossing would still be able to use one of the legal pathways the administration has created. These pathways include special processes for paroling up to 30,000 migrants a month into the country from Cuba, Haiti, Nicaragua and Venezuela, and a Family Reunification Parole Process for certain nationals from other countries. 

The Border Act wouldn’t end the CBP One mobile application program either, which permits migrants without visas to schedule an appointment to present themselves for inspection at a designated port of entry. Nearly 250,000 migrants have been paroled into the United States through this program as of August 2023. Parole was granted in 99.7 percent of the interviews.  

The Center for Immigration Studies learned through a Freedom of Information Act lawsuit that the administration has used the CBP One app to bring 320,000 inadmissible immigrants from foreign countries to American airports.  

Likelihood of being deported  

The Border Act does not require the administration to abandon enforcement guidelines issued by Department of Homeland Security Secretary Alejandro Mayorkas, in which he says, “The fact an individual is a removable noncitizen therefore should not alone be the basis of an enforcement action against them.” Enforcement efforts are focused instead on migrants “who pose a threat to national security, public safety, and border security and thus threaten America’s well-being.”  

This shields illegal crossers who have been released into the interior of the country from being put in removal proceedings.  

It is unlikely they will be deported even if they are put in removal proceedings and a judge orders their deportation. According to the ICE Annual Report for Fiscal 2023, there were 1,292,830 migrants subject to final deportation orders in fiscal 2023, and ICE only removed 142,580 of them.  

And executed deportation orders may go down now. In late January, Venezuelan President Nicolás Maduro stopped accepting flights returning Venezuelan nationals from the United States and Mexico. More illegal crossers are coming from Venezuela than from any other countries other than Mexico and Guatemala. This reduces the value of deportation as a deterrent and limits enforcement actions against migrants who are deportable even under the Mayorkas guidelines.  

Venezuelan migrants have been linked to a recent wave of violent crimes, which may be attributable in part to the fact that they come from a country with one of the highest crime rates in the world.  

An undocumented Venezuelan immigrant who was paroled into the country after making an illegal crossing has been charged in connection with the violent murder of Georgia nursing student Laken Riley. A Venezuelan migrant was arrested for shooting at cops as he fled a sports clothing store. He hit a security guard and an innocent bystander. And in Chicago, four Venezuelan immigrants were arrested for robbing and beating a man on a train.  

Maduro’s order will prevent the United States from returning them to Venezuela.   

It seems unlikely, therefore, that Biden’s support for the Border Act means that he really wants to secure the border now. I will be surprised if he is still trying to get border security bills passed after the upcoming elections. 

Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow him at: https://nolanrappaport.blogspot.com