If Washington, D.C. were an aughts-era sitcom, we could call it “Everybody Hates Alejandro.” That’s Alejandro Mayorkas, the Homeland Security secretary, the guy who dozens of House Republicans want to impeach because he’s too soft on the border, whom several progressive Democrats in Congress have confronted for being too harsh on the border, and whom independent Senator Kyrsten Sinema said was “not ready” to deal with an expected surge of migrants on the border.
And yet when “Title 42”—the Trump administration policy that used the COVID-19 pandemic to allow the immediate removal of asylum-seekers from American soil without due process—ended last week, the surge Sinema and others dreaded did not materialize. Why? Because Mayorkas, backed up by President Joe Biden, executed a multi-faceted strategy, developed for months, to both dissuade haphazard border-crossings and encourage orderly migration.
The charged politics of immigration regularly vexes presidents, from Chester Arthur’s reluctant signing of the Chinese Exclusion Act to the failed immigration reform bills of George W. Bush and Barack Obama. Donald Trump harnessed nativist sentiment to win the White House in 2016, then proceeded to repel the public with his policy of migrant family separations.
Biden faces the challenge of a record number of border crossers, fueled by pandemic-related economic and political upheavals in Cuba, Venezuela, Nicaragua, Haiti, and elsewhere.
Political cross-currents also buffet the White House. In 2020, Biden ran on a more welcoming immigration policy, in line with the sentiments of an increasingly multicultural Democratic Party base that, more than at any point in its history, views the immigration issue through a moral lens. Whereas Democrats once felt pressure from working-class Americans primed to blame unemployment on immigrants, today’s tight labor market, which contributes to inflation, sorely needs fresh workers from foreign lands.
At the same time, asylum-seekers have put a huge strain on municipal governments, which cannot easily connect large numbers of sudden arrivals with shelter, work, and school. The more Democratic mayors, like New York City’s Eric Adams, vent their frustrations, the more fodder they provide Trump and the racist elements in the Republican Party, who treat every immigrant like an invading criminal, and who are eager to depict the border as in a state of constant chaos.
How to carefully navigate the volatile issue was always on the mind of top Biden administration officials. Recall the backlash Vice President Kamala Harris suffered in June 2021 when she traveled to Guatemala seeking private investment for Northern Triangle countries (including El Salvador and Honduras). She upset the left, telling those thinking about crossing the border illegally, “Do not come,” then suffered widespread mockery when NBC News’ Lester Holt mentioned she hadn’t visited the Mexican border since assuming office, and she responded, “And I haven’t been to Europe.”
Putting the latter gaffe aside, the attempt to dissuade migration was a response to that year’s spike in illegal border crossing from the Northern Triangle. While Harris’s blunt rhetoric may have rankled some liberal sensibilities, her overall strategy appears to have worked. Apprehensions and expulsions of Northern Triangle migrants, averaging around 23,000 in the final months of 2020, peaked in July 2021 at about 95,000 and have since steadily dropped to slightly under 35,000 in March 2023. The Northern Triangle decline contrasts with the increase in overall apprehensions and expulsions, which jumped from about 93,000 in December 2020 to 234,000 in July 2021 and then kept going up, peaking in December 2022 at just over 300,000. (The Vice President’s office doesn’t credit her ultimatum for the decline but likes to cite the $4.2 billion in private sector commitments for the region she helped secure, although a CNN report suggests the investment’s impact is more likely to be felt in the future.)
Despite the drop-off in Northern Triangle refugees, the total flow of migrants from throughout the hemisphere dramatically spiked in 2022. In turn, the Biden administration scaled up its carrot-and-stick approach, with Mayorkas taking the lead.
Homeland Security has been trying to reduce asylum claims from taking place on our side of the border, even though the asylum law (known as “Title 8”) reads, “any alien who is physically present in the United States … may apply for asylum.” Until recently, Mayorkas continued to deport border crossers using Title 42 emergency powers. Now, the 63-year-old Cuban refugee is taking advantage of Title 8’s “Safe Third Country” exception, allowing deportation to another country than the migrant’s origin, with which we have a “bilateral or multilateral agreement” and “in which the alien’s life or freedom would not be threatened” and the migrant still “would have access to a full and fair procedure for determining a claim to asylum.” Earlier this month, the White House announced an agreement with Mexico to send deported asylum-seekers to our southern neighbor.
The Trump administration tried something similar called “Remain in Mexico,” which was still being litigated when the Biden administration ended it last year. The Trump plan required migrants to wait in Mexico while their asylum case was considered, knowing that there is a huge backlog of asylum cases, often adding years to the process.
In the second 2020 presidential debate, Biden chastised Trump’s policy: “This is the first President in the history of the United States of America that anybody seeking asylum has to do it in another country. That’s never happened before in America … You come to the United States and you make your case … They’re sitting in squalor on the other side of the river.” On its face, what Biden is doing now is a flip-flop. But his plan is not about slow-walking asylum cases while desperate people suffer, but steering asylum-seekers to safer pathways to America—those less prone to exploitation by deadly smuggling operations.
In January, the Homeland Security Department launched a smartphone app so migrants outside the U.S. could apply for asylum and schedule appointments at ports of entry. In April, Mayorkas announced plans for migrant processing centers abroad, beginning with Guatemala and Colombia. And the administration has created “humanitarian parole” programs for those leaving Cuba, Haiti, Nicaragua, and Venezuela, allowing migrants with American financial sponsors to stay for up to two years. Last week, the Homeland Security Department announced on Twitter, “More than 100,000 people from Cuba, Haiti, Venezuela, & Nicaragua have arrived through lawfully available pathways, and we reduced border encounters from these groups by 90% between December of last year and March of this year.”
To further prepare for the policy shift from Title 42 to Title 8, Mayorkas also fortified the border with 1,500 additional troops, FEMA grants to relief organizations, and temporary processing facilities.
What the administration was up to over the past two years may have looked confusing. First, the Biden administration tried to rescind Title 42, upsetting conservatives. Then federal judges stayed the order while it was being litigated. In the meantime, the administration expanded the use of Title 42, upsetting progressives. And then, the Centers for Disease Control and Prevention ended the entire COVID-19 public health emergency. Conservatives applauded the end of Dr. Anthony Fauci-era restrictions but not the end of Title 42 powers which disappeared along with them.
Because Title 42 was being used as a deterrent to migration, the Biden administration’s moves to end it were seen as willfully—to some, recklessly—inviting more migration. But that was an oversimplification. The goal has always been to craft a more orderly system of migration.
Title 42, for all of its harshness, did not establish order. Yes, it allowed for speedy removals by denying asylum hearings to attempted migrants. But it did nothing to prevent those who had been removed from trying again repeatedly. As I noted earlier this year, citing data reported by the CATO Institute, after the imposition of Title 42, the recidivism rate of illegal border crossers jumped from 20 to 49 percent. Title 42 was a slapdash shortcut, not a thoughtful policy.
Many presumed once Title 8 returned and replaced Title 42, we would experience a fresh flood of migrants. This was backward. A burst of migration happened just before the return of Title 8, which comes with stiffer punishments. As El Paso County Judge Ricardo Samaniego explained to the city’s local ABC affiliate KVIA, “A lot of the [migrants] that crossed were really trying to avoid Title 8. Title 8 is really difficult … If you come back, it’s a five-year penalty, and you cannot apply for any type of migration status.” In the days after Title 42 ceased, border crossings dropped about 50 percent.
Of course, the border situation remains a serious challenge for Mayorkas and the administration. Thousands of would-be migrants still struggle to secure scarce appointments on the app, processing facilities are overcrowded, and some cities like New York are stretched trying to settle new arrivals. If a Democratic swing state, and border state, governor like Arizona’s Katie Hobbs is still busing migrants out of state during the thick of the 2024 campaign, that could complicate Biden’s Electoral College math.
Plus, the policies Mayorkas is relying upon are subject to litigation. An ACLU lawsuit says the administration’s agreement with Mexico violates asylum law. Several Republican attorneys general are suing to stop the expanded humanitarian parole program as an abuse of executive power.
But the status quo was untenable. Smugglers tied to organized crime prey on desperate migrants. Parents send unaccompanied minors over the border, who then get exploited for child labor. Strapped cities shuttle migrants to other strapped cities. The chaos unfairly validates nativist narratives that immigrants are a problem when the real problem is a system that doesn’t serve Americans so that the vital flow of those aching to be Americans can get to work and contribute to America’s growth.
We can now see the elements of an orderly system, with easier-to-access apps and processing centers replacing dangerous treks across the desert. Yes, these new tools don’t work as well as they could or should, but a cooperative Congress can approve the financial resources and authorize the hiring of new staff to make them work better. The necessary bipartisanship is always hard to cultivate, but we can get there if we can recognize what success looks like.
Thanks to Mayorkas’ deft execution, we can. Yet the apoplectic reaction of House Republicans is to impeach Mayorkas anyway, even though the secretary would never be convicted in the Senate. Democrats and the independent Sinema should aim to do more than acquit him on a party-line vote. They should stop using Mayorkas as a proverbial punching bag and start praising his heroic efforts to fix what so many others in Washington left broken.
