Exclusive–Kobach: Biden’s One-Two Punch Is Blowing a Hole in Our Border

A U.S. Border Patrol agent questions a man in Nogales, Ariz., seen through a hole in a metal fence marking the border between the U.S. and Mexico, in 2007. Guillermo Arias/Associated Press
Guillermo Arias/Associated Press

A month into his presidency, President Biden is proving that he is truly intent on destroying the progress that President Trump made in restoring the rule of law in immigration.  His early salvo of executive orders was bad enough.  But additional policies announced last week and on Thursday are producing a devastating one-two punch that may eventually be more significant than President Obama’s Deferred Action for Child Arrivals (DACA) executive amnesty.

The first punch, announced last week, was Biden’s termination of the “Remain in Mexico” policy.  The “Remain in Mexico” policy established by the Trump Administration forced asylum applicants to wait in Mexico for their future asylum hearing in an American immigration court.  This was a crucial reform, because the asylum system has been completely overloaded for several years now.  Instead of waiting months for a hearing, migrants now wait years—in some cases, as long as five years.

Because approximately 90% of the asylum claims are bogus and are ultimately rejected, many of the applicants disappear into the fabric of American society and never show up for the hearing.  Others show up; but when their claim is rejected because they do not meet the legal requirements for asylum, they disappear after the hearing.

Keeping asylum applicants in Mexico under the “Remain in Mexico” policy was an effective way of stopping that from happening.  But now, Biden has ended the policy; and his DHS is letting the asylum applicants know that they can come into the United States.  Some 25,600 will soon be allowed in, coming through the ports of entry at San Diego, El Paso, and Brownsville.  DHS plans to bring in 300 asylum applicants a day through San Diego and El Paso, and up to 100 a day through Brownsville.

But those numbers are only the beginning.  The policy change was heard in the predominant sending countries of Guatemala, Honduras, and El Salvador within minutes of its announcement.  A renewed surge of illegal aliens, the vast majority of whom will make bogus claims of asylum, is already building.

A whopping 78,000 migrants showed up in January—a ten-year record for the month of January.  They were undoubtedly driven by Biden’s announcement that there would be no deportations for his first 100 days in office.  But February is shaping up to be even bigger, now that the Remain-in-Mexico policy is gone.  The number has jumped to an average of 3,000 border crossers daily, with some days as high as 3,500.  That’s more than triple the typical 1,100 a day during the last year of the Trump Administration.

And that’s only part one of the one-two punch.  The second part came on Thursday when the Biden Administration announced new interim guidelines that dramatically restrict ICE’s ability to deport illegal aliens.   Under the new guidelines, it will be extraordinarily difficult for ICE officers to remove anyone who is not convicted of an aggravated felony, a member of a gang, or a terrorist.  Recent border crossers are also removable, but they can skate free by merely claiming asylum.  The bottom line is that ICE officers will be effectively hand-cuffed to their desks; and the number of deportations will plummet.

But it is the combination of these two policy changes that produces the truly devastating effect.  First, the end of the Remain-in-Mexico policy means that hundreds of thousands of illegal aliens will be encouraged to come and will be allowed into the country each year, simply because they make bogus asylum claims.  Then, once they are in the country, ICE will not be allowed to deport them.

It’s a de facto executive amnesty for anyone willing to seek asylum.  How big will the amnesty be?  We don’t know.  Its only limitation is the number of illegal aliens willing to come to the border and claim asylum in the years ahead.

Obama’s unlawful DACA executive amnesty allowed some 700,000 illegal aliens to remain in the country.  Unfortunately, this one-two punch by Biden may make DACA look like child’s play.

Kris W. Kobach served as the Secretary of State of Kansas during 2011-2019.  An expert in immigration law and policy, he coauthored the Arizona SB-1070 immigration law and represented in federal court the 10 ICE agents who sued to stop Obama’s 2012 DACA executive amnesty. During 2001-03, he served as U.S. Attorney General John Ashcroft’s chief adviser on immigration and border security at the U.S. Department of Justice.  His website is kriskobach.com.


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