Illegal border crossings have reached unprecedented levels. President Biden can significantly decrease the flow of migrants across the Southern border by making the following three simple changes:

First, suspend the admission of migrants who try to enter the United States without a valid entry document until the post-Title 42 surge in illegal crossings has ended.

Biden can do this with an executive order based on his authority under INA section 1182(f), the pertinent part of which reads as follows:

“Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens…”

The Supreme Court has held that the sole prerequisite to exercising this power is that the president must find that the entry of the covered migrants “would be detrimental to the interests of the United States.”

This wouldn’t have to result in the abandonment of our moral obligation to provide refuge to people who are fleeing from persecution. The migrants who claim to fear persecution could be transported to one of the regional processing centers in Central and South America that the administration is establishing, where they can be given an opportunity to apply for refugee status.

Biden can increase the cap on refugee admissions to accommodate the expelled asylum seekers who establish eligibility for refugee status at a processing center; INA section 1157(b) gives the president authority to raise the refugee number on an emergency basis whenever he thinks an increase is warranted by humanitarian concerns.

Second, Biden should establish a special task force of Labor Department investigators to sanction employers who are exploiting employees in industries known to hire large numbers of undocumented migrants.

Congress tried to eliminate the job magnet that draws undocumented migrants to the United States by establishing employer sanctions in the Immigration Reform and Control Act of 1986. The theory was that if employers were sanctioned for hiring migrants who do not have work authorization, they would stop hiring them.

But this approach is complicated by the fact that it can be difficult for employers to confirm that a prospective foreign employee is who he says he is and that he has work authorization.


Published originally on The Hill.

Nolan Rappaport was an Executive Branch Immigration Law Expert to the House Judiciary Committee and subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims. Prior to working for the House, he wrote decisions for the Board of Immigration Appeals for 20 years.