The Causes of the Latest Border Crisis, and How to Fix It

How did illegal immigration along the U.S.-Mexico border become the mess that it is? U.S. Customs and Border Patrol (CBP) encounters with migrants averaged under 600,000 in fiscal years 2010–20, but tripled in fiscal 2021, the year Biden took office, to a record of nearly 1.9 million, and reached 3.2 million in fiscal 2023. What happened? The answer, in short, is that the United States is in the midst of the most widespread asylum fraud in its history.

This crisis is driven by the abuse of a loophole in Section 235(b)(1)(A)(i) of the Immigration and Nationality Act (INA). This loophole allows migrants who would normally be removed from the United States to declare “an intention to apply for asylum” or “a fear of persecution”; they are then referred to a U.S. Citizenship and Immigration Services asylum officer to screen whether they have a “credible fear” of persecution or torture in their home country. The definition of “credible fear” is being stretched to include just about any complaint migrants have about their country, and migrants are gaming the system with fake stories to qualify for asylum, with little or no vetting.

The Biden administration also returned to the tried-and-failed policy of catch-and-release. Migrants awaiting a hearing of their asylum claims are given a “notice to appear” later; they almost never do, and are then released into the United States. Biden abandoned the “Remain in Mexico” policies established in the Migration Protection Protocols (MPP) of the previous administration, which required migrants to wait in Mexico for their asylum case to be heard.

Furthermore, the Biden administration has worked with Latin American countries to put systems in place that speed up and encourage illegal migration rather than shut it down, like Operation Controlled Flow in Panama and Costa Rica. Finally, the U.S. migrant processing infrastructure is insufficient for the current influx. There is a lack of (1) humanitarian centers for migrants awaiting asylum hearings and (2) migration courts at ports of entry along the U.S.-Mexico border.

Misconceptions

But before looking more closely at these causes, several persistent misconceptions merit refuting. First is the misconception that the current border crisis is driven by refugees. The reality is that some 90 percent of those apprehended at the U.S. border have not been persecuted or tortured in any way and are making fraudulent asylum claims.¹ Most are economic migrants looking for a better life. (This helps explain record-setting remittances to Latin America and the Caribbean this year.²)

Second, it is a misconception that those experiencing difficulties in other countries have no other options outside the United States. Having lived in Latin America for five years and spent time in fifteen countries in the Americas, I have seen clearly that there are many safe areas in the region, even in so-called dangerous countries. Venezuela, for instance, is closer to many other countries that are destinations for hundreds of thousands of migrants from around the world—including many American expats—because of their quality of life, like Colombia, Ecuador, Brazil, Costa Rica, and Panama. And many experiencing difficulties can find safety simply by moving to another part of their own country.

In El Salvador, for example, most of the MS-13 and Barrio 18 drug cartel activity of recent decades has occurred in very specific areas, like the city of Soyapango. Most Salvadoreños never go near Soyapango. There are many, much safer areas of El Salvador to live in, from the diverse neighborhoods of San Salvador, a city of over one million people, to beach, farming, and mountain towns. As Michigan representative Brian Mast said in a recent hearing of the House Foreign Affairs Committee, the definition of asylum is currently being stretched to where it no longer has meaning: “We’ve moved to a situation where everybody that makes a complaint about their country, and is unwilling to look at a different city in their country, a different territory in their country, an adjacent country to them, because they’re unwilling to look at that, we’ll say ‘Well, it must have been a credible threat to life.’”³

Third, it is a misconception that the notion of turning some migrants away at the U.S. border means that America is not compassionate. The United States has for decades had the largest immigrant population in the world, currently over fifty million, over three times larger than the second highest, Germany’s sixteen million, and larger than the combined immigrant populations of the UK, France, Canada, Australia, and Spain. Open border policies are facilitating a dramatic spike in human smuggling, forced labor, and sex trafficking, which is the antithesis of compassion. And open borders encourage a brain drain of young workers from developing countries, who do low-level jobs in the United States when they could be contributing to improvement of their home countries by building businesses and families there.

Fourth, it is a misconception that the root cause of the current border crisis is an increase in push factors that make migrants want to come to the United States. Push factors have always been there, and always will be. In fact, Venezuela (one of the largest sources of migrants) today is showing a few modest signs of economic recovery, far from the mass raids on supermarkets that occurred in 2016. In the long view, one factor that is facilitating more migration over the past decade is the increased availability of global air travel in developing countries. The Human Progress project reports that “The most striking [air travel] trend is among the citizens of developing nations. For example, the number of Latin American passengers tripled from 1999 to 2019, and those from Congo and Bangladesh quadrupled. And there is still quite a lot of room on the upside.” This surge has opened the door to a wider demographic to fly to countries in South America with lax visa requirements, like Ecuador, and move toward the U.S. border from there.

With the migration magnets turned on by Biden’s border policies, migrants around the world are, understandably, eyeing this as a uniquely opportune moment to try to enter the United States. The sources of migrants are nearly bottomless. While some Biden apologists point to Venezuela’s economic crisis as a cause for the migration spike during his administration, the reality is that Venezuela has been in meltdown since 2010. Over a quarter of Venezuela’s 28 million citizens now live outside Venezuela, and an estimated 2,000 more leave every day.⁴ The Pew Research Center reported in August that, from 2000 to 2021, the Venezuelan-origin population in the United States increased 592 percent, from 95,000 to 640,000.⁵

Haitians are now the second-largest group crossing the U.S. border, facilitated in part by the weaponization of migration by Nicaragua’s anti-U.S. dictator Daniel Ortega, who in recent months has allowed over 260 unofficial charter flights carrying some 30,000 migrants from Haiti to land in Nicaragua, where they set off northward for the United States. Over 300,000 emigrants are now leaving China each year, and from January to September 2023, the U.S. Border Patrol arrested 22,187 Chinese nationals illegally crossing the U.S.-Mexico border—nearly thirteen times the number during the same period in 2022.

Asylum Fraud and the Revival of Catch-and-Release

Amid a tsunami of illegal migrants and asylum-seekers at the U.S. border, rather than calling for more caution and tighter vetting, the Biden administration has instead returned to the tried-and-failed policy of catch-and-release, encouraging the U.S Customs and Border Patrol to process migrants through faster. Now apprehended migrants are simply waved through the border and released into the United States without being assessed for any asylum claims at all, according to the testimony of former Department of Justice and Department of Homeland Security official Gene Hamilton. What is often lost in the discussion is how much this hurts the 10 percent who truly qualify for asylum under U.S. law, who must wait much longer to receive the status they legally deserve as fraudulent asylum-seekers glut the system. According to Hamilton, on a single day in November 2023, of some 9,400 migrants apprehended on the border, over 5,200 were just handed paperwork and released into the United States, with no credible screening at all to determine if they met the criteria for asylum.

Todd Bensman of the Center for Immigration Studies has personally collected hundreds of national IDs found lying in the grass along the U.S. border, thrown away by migrants before crossing. A resident of Texas, Bensman has seen how tens of thousands of migrants discard their IDs so that their stories of persecution, and even their names and countries of origin, cannot be vetted. Others carry fake passports or other IDs purchased from smugglers, like Chinese posing as Japanese tourists. Through one means or another, West Africans pose as Haitians, Afghanis as Venezuelans.

Staggeringly, new records show that from January to September 2023, the Department of Homeland Security under Biden accepted 99.7 percent of recent aliens applying for entry using the CBP One app, which is the required application system for migrants coming to the United States through Mexico. Are we to believe that 99.7 percent of illegal migrants arriving from around the world are “perfect angels,” as Bensman puts it? Consider that in October 2023 alone, the CBP apprehended thirteen migrants on the U.S. terror watchlist trying to cross the Southwest border.⁶ Another 172 on the terror watchlist were apprehended by CPB agents earlier in fiscal 2023—compared to just three in all of fiscal 2019. “The only agency preventing terrorists from entering the United States illegally across the border is CBP,” says Andrew R. Arthur of the Center for Immigration Studies, “but the administration’s border policies have agents so overwhelmed that the odds of them dropping the ball moves the needle from ‘possible but doubtful’ to ‘way too close for comfort.’”

CBP agents are indeed overwhelmed. About half of the U.S. Border Patrol agents along the southwest border are not actually patrolling the border. The Biden administration has redeployed them to help in migrant centers, where they serve meals, distribute clothing, and change diapers, according to former Department of Homeland Security official Chad Wolf in an interview with the Heritage Foundation. “That’s not what they’re trained to do. That’s not the job they signed up for.”

More Loopholes, Disastrous Consequences

The current explosion of migration to the U.S. border was set off in 2021, when the Biden administration created three additional legal loopholes that offered a fast lane to entry into the United States. These loopholes went viral over social media, turning on a migration magnet far stronger than the United States has ever seen before. Specifically, the Biden loopholes guaranteed immunity to Title 42 expulsions, which had been established under the previous administration, to three categories of migrants: (1) families with children under seven who crossed into Texas from the state of Tamaulipas, Mexico; (2) unaccompanied minors; and (3) women in the late stages of pregnancy, usually seven months or more.

Migrants in these categories suddenly received automatic entry into the United States. As a result, strangers paired with “rented kids,” as Bensman calls them, have been posing as families in the hopes of being granted asylum status under the Biden loophole for families with children under seven. This has resulted in an explosion of what the U.S. government calls “kinship fraud.”

Mothers receive thousands of dollars to allow complete strangers to cross the U.S.-Mexico border with their babies and other small children. In fact, Wolf says that many of these rented kids are also “recycled kids,” used multiple times to help different strangers cross illegally. According to CPB statistics, the number of “family unit individuals” apprehended at the border saw nearly a sevenfold increase, from 70,094 in fiscal year 2020 to 479,000 in 2021. In his 2023 book, Overrun: How Joe Biden Unleashed the Greatest Border Crisis in U.S. History, Bensman relates an interview in which a retired ICE Homeland Security Investigator revealed:

Most typically, human smugglers or brokers in home countries would cut package deals with a parent of two or more children. . . . Parents who agreed to do this could have most or all of their huge smuggling fees waived to bring the whole family over. . . . Very young children and infants were most valued because they couldn’t answer Border Patrol questions and blow everyone’s cover. That’s why Border Patrol agents often saw the arrival of single men carrying infants without baby formula, bottles, diapers, or any other accoutrements indicating infant caretaking.

While it was certainly a bad general practice for DHS to separate children from their parents in 2018, there was little mention in the news of the fact that a significant number of these children were separated to remove them from parents (real or fake) who were known or suspected traffickers and criminals, for the children’s own protection.

The second Biden-era Title 42 loophole, giving automatic asylum to unaccompanied minors, caused the number of unaccompanied minors crossing the border to more than quadruple in just a single year, from 33,239 in fiscal year 2020 to 146,925 in 2021.

Where do 146,925 unaccompanied minors go after entering the United States? It turns out that often the U.S. government has no idea. The Department of Health and Human Services (HHS) is responsible for making sure that the adult sponsors who receive unaccompanied minors support and protect them, especially from trafficking and exploitation. Yet the New York Times reported in February 2023 that “as more and more children have arrived, the Biden White House has ramped up demands on staffers to move the children quickly out of shelters and release them to adults. Caseworkers say they rush through vetting sponsors.”⁷ As a result, over a two-year period, the Biden HHS lost contact with over 85,000 kids, one third of the unaccompanied minors who had entered the United States. Virtually all of these unaccompanied minors were trafficked to the border by cartels, and thousands of them are being trafficked by cartels in the United States right now, including for sex trade and forced labor. In short, while the Biden administration calls its border policies, “fair, orderly, and humane,” it has turned human trafficking into a booming business.

As Senator Marsha Blackburn puts it:

Human smuggling is thriving under the Biden administration and has expanded from a $500 million industry in 2018 to an over $13 billion industry. . . . Human trafficking is the second-fastest growing criminal industry in the U.S., [including for] forced labor, sexual exploitation, crime, and marriage. In fiscal year 2022, arrests for human trafficking increased by 50 percent, and convictions skyrocketed by 80 percent.⁸

The third Biden Title 42 loophole, for women in an advanced stage of pregnancy, has led to hundreds of women abroad getting pregnant specifically for the purpose of getting into the United States. They time their departures to arrive at the U.S. border seven or more months pregnant and thus receive immunity and automatic asylum. Hundreds of such pregnant migrants have crossed the treacherous jungles and swamps of the Darién Gap that separate Panama and Colombia. For example, a June report from Doctors Without Borders reveals how a Haitian mother eight months pregnant, who had been living in Chile for years as a domestic worker, embarked on a migration journey from Chile to the United States.⁹ She spent four days crossing the Darién Gap, which claims hundreds of lives each year and is ridden with drug cartels and mosquitoes carrying yellow fever and malaria. Upon entering Panama, she was diagnosed with preeclampsia, a pregnancy complication, and had to give birth prematurely by caesarian section. Doctors Without Borders reports that between January and April 2023 alone, it carried out 499 prenatal consultations in its two Panama migrant reception centers for migrants crossing the Darién Gap.

Facilitating a New Migrant “Superhighway”

The Panama-Colombia border is a key bottleneck where migrants coming from all over South America funnel into North America. Since Biden took office, migration across this border has increased a staggering fifty-fold: it averaged under 11,000 over 2010–20 but reached 500,000 in 2023, roughly the population of Atlanta. Nearly a quarter of these were children. How did this happen?

Part of the answer is what Bensman calls a new migrant “superhighway”: a network of faster, safer, and legalized migrant routes from Colombia to the U.S. border. Bensman explains how, in 2022, in response to intense press coverage of migrant deaths in the Darién Gap by the New York Times and others, the Biden administration helped create this new migrant superhighway by way of three actions. First, it encouraged Panama and Costa Rica to provide overnight buses shuttling migrants across each country toward the United States, in a program called Operation Controlled Flow.¹⁰ Second, it convinced Panama to help migrants bypass the Darién Gap by pulling back its coastal sea patrols to allow migrant smuggler boats from Colombia to land safely at two locations on Panama’s coast. And third, it held talks in Mexico City in 2022, after which Mexico began issuing travel permits to all migrants coming in from Guatemala.

The relatively narrow Panama-Colombia border is the obvious choke point where the United States could work with Panama to stop illegal migration at the source. But instead, the Biden administration has actively worked with Panama and other Latin American governments to make this border less of an obstacle to illegal migrants and speed up their journey.

Farther north along the migrant superhighway, at the Guatemala-Mexico border, UN-funded groups employ psychologists to coach migrants who were initially rejected for refugee status. Bensman’s book reveals how the psychologists teach migrants to change their original narratives of economic hardship to stories of persecution, based on “repressed memories.” This has allowed some 90 percent of migrants to receive asylum when they reapply.

The new migrant superhighway is causing chaos not just for the United States, but for the most vulnerable residents of countries along the route. For example, when migrants crossing the Darién Gap first enter Panama from Colombia, they find themselves inside the borders of Emberá and Wounaan indigenous territory. Some indigenous residents have made money feeding migrants and transporting them by boat upriver to migrant camps run by the UN International Organization for Migration, the Red Cross, Doctors Without Borders, and the Panamanian government. But the migrants have wrought havoc for many of the other ten thousand indigenous residents of Panama’s Darién jungle borderlands. According to Jason Cook, an American expatriate who has lived in Panama’s Darién region for over thirty years, migrants have stolen so much food off the plantain, banana, and avocado plantations of indigenous famers that some have simply stopped planting. Tens of thousands of migrants passing through urinate and defecate on the ground, trample crops, and discard their sleeping mats and tents and other personal belongings, trashing and contaminating indigenous land and rivers. Dead bodies of migrants turn up regularly.

Dissenting Democrats

Not all Democrats are on board with a porous border and a migration magnet turned up to maximum level. Ohio Democratic senator Sherrod Brown launched a reelection campaign commercial touting that he “wrote a bill signed by Donald Trump to increase funding for Border Patrol.”

In October, New York City mayor Eric Adams made a four-day trip to Mexico, Ecuador, and Colombia to survey the migrant situation. Adams visited the Colombian port town of Necoclí, across the border from Panama. Migrants amass in Necoclí and wait for smuggler boats to take them to Panama. Surrounded by migrants, Adams spoke from one of the docks:

When you look at what’s happening here, people are sleeping out waiting to get transportation, just to start a terrible journey that is extremely dangerous going through the Darién Gap. . . . We have to, one, push back on the propaganda that is giving people false hopes and false promises. . . . Two, give support to our neighbors and cities and countries in the southern part of this region. And three, to come up with a real coordinated formidable plan for once and for all, [so] we’re all coordinating on how to deal with a level of humanitarian crisis—probably the greatest level of mobility with human beings that we’ve seen in our lifetime.”¹¹

Speaking in Puebla, Mexico, Adams told reporters that New York City is “at capacity” in absorbing migrants. “Our hearts are endless, but our resources are not. . . . We don’t want to put people in congregate shelters. We don’t want people to think they will be employed.”¹²

Solutions

What makes the current border chaos especially absurd is that most of the solutions are known and have already been tried and shown to work. These measures would drastically reduce both the number of migrants arriving at the border and the time required to process them. They include the following:

(1) End the Biden administration’s catch-and-release policies and return to the successful Remain in Mexico policies that require migrants to wait in Mexico while their asylum claims are processed. Hamilton says that as the previous administration’s DHS called the bluff of fraudulent asylum seekers, many of those fraudulently seeking asylum gave up their claims rather than wait in Mexico. This will also signal to Latin American countries to be more proactive again in deterring migration, to avoid having migrants backed up inside their borders.

(2) Close the asylum loopholes by enforcing the true criteria for asylum as written in U.S. law and no longer stretching the definition of a “credible fear” of persecution beyond reason.

(3) As Hamilton has suggested, build immigration courts at every point of entry along the U.S.-Mexico border so asylum seekers do not have to wait so long for their cases to be heard.

(4) As Representatives Maria Salazar and Veronica Escobar have proposed in the Dignity Act:

“[B]uild at least five Humanitarian Campuses (HC) that will receive individuals and families arriving at the southern border for immediate processing. Asylum-seekers will remain at an HC until their case is decided. They will have freedom of movement within the HC, access to state-of-the-art facilities, medical personal, legal counsel, and non-governmental organizations.”¹³

Also per the Dignity Act, create five additional immigration centers in Mexico, Central America, and South America, where migrants can be screened in advance for asylum eligibility. These centers will help stop migrant caravans and obviate the need for migrants to make the dangerous land journey to the United States.

(5) Work with Panama and Costa Rica to abandon Operation Controlled Flow and, as Bensman has proposed, seal Panama’s border with Colombia. At only about forty miles wide at its narrowest point and covered in mountains, swamps, and jungles, the Darién Gap border is infinitely easier to secure than the 1,954-mile U.S.-Mexico border. Providing funding and logistics cooperation to Panama for migration controls, detention centers, and deportations would drastically slow the flow of illegal migration and save hundreds of millions of dollars now spent on apprehending migrants later at the U.S. border.

With each new incentive and loophole created by the Biden administration, the news travels over social media almost instantaneously to the far ends of the world, and more migrants set out on their journey. As the situation continues to unravel, it is imperative for politicians of both parties to recognize the scale of the problem and to cooperate in pursuing solutions like the ones outlined here. The United States can still be compassionate to those truly in need of asylum without abdicating responsibility for its borders, downplaying security concerns, or being overly indulgent toward fraudulent claimants.

This article originally appeared in American Affairs Volume VIII, Number 1 (Spring 2024): 113–22.

Notes