In response to record numbers of migrants arriving at our Southern border--2.2 million in FY2022--President Biden has announced some new rules designed to deter people from coming to our country to seek asylum. At the same time, these rules also open a new pathway for "up to 30,000 migrants from Venezuela, Nicaragua, Cuba and Haiti... to enter the United States on 'parole' each month if they have financial sponsors here and pass background checks."

Today, we'll discuss the import of these new rules. We'll also look at how the rules might affect asylum seekers who currently have cases before the Asylum Office or Immigration Court.

Let's start with the numbers. These are tricky, as there are different ways to measure how many people are "encountered" by Customs and Border Protection ("CBP") at the Southern border. Advocates have argued that CBP exaggerates the number of people trying to enter the U.S. because when someone is expelled and tries to re-enter, that person is counted twice. If they try to enter three times, they are counted three times, etc. Thus, 2.2 million encounters ≠ 2.2 million people. Nevertheless, it is clear from the data that the number of people seeking entry has been increasing from a pandemic low (in FY 2020) of 405,036 to about 1.7 million in FY2021 to 2.2 million in the prior fiscal year. These numbers can also be contrasted with the FY2019 surge during the Trump Administration, when CBP recorded 859,501 encounters. Basically, no matter how you slice it, more people have been arriving in the last year or two than during previous Administrations.

Of course, "fixing" the border (whatever that means) has proven an intractable problem for numerous Administrations. Proposals have ranged from shutting the border down to throwing the doors open (and have even included a few reasonable solutions in between). The Trump Administration used the pandemic as a pretext to summarily expel many asylum seekers under a public health statute, Title 42. The Biden Administration has taken a schizophrenic approach towards Title 42: On the one hand, it has tried to end the program, though these efforts have thus far been blocked by courts. On the other hand, it has expanded the use of Title 42 to expel more migrants without consideration of their asylum claims.

The President's newest proposal aims to expand "enforcement measures to increase security at the border and reduce the number of individuals crossing unlawfully between ports of entry." At the same time, the new rules "expand and expedite legal pathways for orderly migration and result in new consequences for those who fail to use those legal pathways." To this end, the Administration will allow 30,000 citizens of Venezuela, Nicaragua, Cuba and Haiti to enter the U.S. each month as parolees if they have "an eligible sponsor and pass vetting and background checks." People who attempt to enter without permission or between points of entry will be subject to increased use of expedited removal. Mexico has agreed to accept up to 30,000 citizens of Venezuela, Nicaragua, Cuba and Haiti per month, and this will make it easier for the U.S. to expel nationals from these four countries. The idea is to force these migrants to enter the United States under the parole program, rather than by claiming asylum at the border. I have real doubts about whether this will work, but perhaps if people see the U.S. expelling asylum applicants, it will deter them from trying to enter at the border. Perhaps.

In addition, CBP has created a mobile app called CBP One, which allows potential migrants to schedule an appointment to "present themselves for inspection and to initiate a protection claim instead of coming directly to a port of entry to wait." Supposedly, this "new feature will significantly reduce wait times and crowds at U.S. ports of entry and allow for safe, orderly, and humane processing." Again, I have my doubts. For those migrants with phones and the ability to understand the app, maybe this will create a more orderly system. But do we really expect those who cannot get an appointment to simply turn around?

The new rules (modestly) expand the number of refugees who will be resettled in the U.S. from the Western hemisphere. Also, the Biden Administration has apparently negotiated with several countries in the region to offer status to migrants, which (it is hoped) will reduce the number of people coming to our country. The Administration will also increase aid to Mexico and countries in Central America in order to help improve their capacity to assist migrants.

The new rules will surge "asylum officers and immigration judges to review asylum cases at the border more quickly – with the aim of reducing initial processing times from months to days." We've heard this before, and we know that when the border gets busier, we see even more delays for asylum seekers who already have cases pending in the United States.

As I've written here ad nauseam, hundreds of thousands of asylum applicants have been waiting years for their decisions, and these new rules offer nothing for those who have been waiting. Worse, since "surging" resources at the border necessarily means decreasing resources in the interior, asylum seekers with pending cases will probably see backlogs continue to grow. Add to this a new Congress which is unlikely to provide additional resources for asylum adjudication, and it is difficult to see how the situation will improve any time soon.

The real solution to our current woes is a comprehensive reform of the immigration law. This would require Congressional action, which also seems unlikely. Barring new laws, the Biden Administration should use its (limited) rule-making authority to de-couple the interior asylum system from the system at the border. Or at least if the Administration could dedicate more resources to adjudicating long-pending cases, that would allow for some progress on the asylum backlogs. While I understand that the border is important, the Biden Administration should not forget about the hundreds of thousands of asylum seekers who are already here, and who have been waiting and hoping for some relief.

Originally posted on the Asylumist: