Essay in Hillsdale College’s ‘Imprimis’: An Immigration Crisis Beyond Imagining by Todd Bensman

By Todd Bensman as published in January 2024 Volume 53, Issue 1

The following is adapted from a talk delivered on January 22, 2024, at the Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship on Hillsdale’s Washington, D.C., campus, as part of the AWC Family Foundation Lecture Series.

In 1960, the Eisenhower administration began counting the number of foreign nationals “apprehended” or “encountered” by what was then called the U.S. Border Control when crossing into the U.S. over its southern border with Mexico. These figures have been published and closely monitored through the years, and there has never been anything like the numbers we are seeing now. A human tsunami of previously unfathomable size—Border Patrol has had to handle more than 7.6 million border crossers in 36 months—has smashed every record, with each year’s numbers exceeding the previous year’s record in stair-stepping fashion.

Of the over 7.6 million illegals encountered by Border Patrol since January 2021, the number allowed to stay inside the U.S. is somewhere north of five million. But with the percentage of those allowed to stay now approaching 100 percent, if current trends hold, the total allowed to remain in the U.S. under the Biden administration will reach ten million by next January.

The U.S. has experienced surges of illegal immigration in the past, but these have been brought quickly under control by implementing policies to deter, block, detain, and deport illegal immigrants. Not this time. To put the current numbers in perspective, consider that Jeh Johnson, President Obama’s Director of Homeland Security, told MSNBC that in his time in office—when the number of illegal crossings was relatively low—he considered it bad if apprehensions exceeded 1,000 a day, because anything more than that “overwhelms the system.” Over the past three years, apprehensions have averaged about 6,940 per day.

Even with a surge in illegal crossings in 2019—this was due to a legal loophole that encouraged illegals to cross with minors—the Trump administration had brought apprehensions down to between 800 and 1,500 a day in his final year in office, the lowest numbers in 45 years. Four months into the Biden administration, apprehensions spiked to about 6,000 per day. There were 2.4 million apprehensions in 2022, a daily average of 6,575. In 2023 there were three million apprehensions, a daily average of 8,219. Entering 2024, apprehensions were up to 12,000 to 15,000 per day.

The reality is even worse, because these numbers do not include the people who entered the U.S. illegally without being apprehended—sometimes referred to as “gotaways”—a number the Border Patrol estimates but does not make public. That estimate over the past three years is two million, bringing the three-year total of illegal immigrants to ten million—a number equivalent to the population of Greater London or Greater Chicago.

But these are just numbers. Who are these people? They are internationally diverse: 45 percent come from 170 countries outside the traditional origin countries of Mexico and Central America. Many are unaccompanied minors: 448,000 to date. More than 330 as of November 2023 are on the FBI’s terrorist watch list. Many are murderers, rapists, kidnappers, and violent criminals. More than a million have been lawfully ordered deported by judges in the U.S. but remain in our country regardless. The dismissal by the executive branch of our government of hundreds of thousands of cases of immigration law violations is unprecedented.

It is worth noting some other firsts: Mexico’s crime syndicates and their paramilitary forces have never earned so much money from cross-border smuggling, and it is reported that their proceeds from human smuggling are surpassing those from drug smuggling for the first time. Never before have the Border Patrol’s 19,000 agents been ordered to abandon vast stretches of the border to conduct administrative intake duty. Never have so many immigrants died to take advantage of policies that all but guarantee quick release into the U.S. Never has our government explicitly refused to enforce immigration laws requiring detention and deportation of illegal immigrants on the grounds that those requirements are cruel and inhumane—instead adopting ad hoc policies aimed at providing “safe, orderly, and humane pathways” into the U.S. for illegal border crossers. And never has there been anything like the current conveyor-belt policy to distribute millions of illegals throughout the American interior.

This crisis is not the result of incompetence, but of purposeful policies. What is more, America’s establishment media has largely abdicated its duty to report on the crisis, refusing to acknowledge an event that is having a greater impact than almost any other in the world today. One can only assume that the reason for this is partisan bias: after all, the crisis can easily be traced to an identifiable moment in time—Inauguration Day 2021.

Prior to that day, the Trump administration had brought the southern border largely under control using four key policies.

1. Diplomatic Big Sticks: The U.S. gained Mexico’s cooperation by threatening ruinous trade tariffs of up to 28 percent on Mexican goods. We gained the cooperation of Central American nations by threatening to freeze U.S. foreign aid. The cooperation of these countries consisted of two things: accepting deported illegals from the U.S. and using their military and police to block incoming immigrants at their own borders.
2. Remain in Mexico: Border Patrol was required to return apprehended immigrants immediately to Mexico, where they had to wait out the long duration of asylum processing, rather than releasing them to disappear inside the U.S.
3. Safe Third Country: Immigrants who had passed through designated “safe third countries” (including Guatemala, Honduras, and Mexico) on their way to the U.S. without applying for asylum in one of those countries were automatically deported with no chance to claim asylum in the U.S.
4. Title 42: This pandemic-control health order required rapid deportations to Mexico, without the option to claim asylum, of all immigrants caught illegally crossing the U.S. border.

During the 2020 campaign, candidate Biden promised to undo Trump policies within the first 100 days, to include ending detention and deportation of illegal immigrants. On January 20, 2021, he began to follow through. Four new U.S. policies and a new Mexican law are the chief drivers of the immigration tsunami we see today.

1. The tariff threat against Mexico was withdrawn and full foreign aid to all Central American nations was restored, freeing these countries to end cooperation with U.S. efforts to stem illegal immigration. This marked the end of the Remain in Mexico policy.
2. The Title 42 pandemic rapid expulsion policy was waived for most families with children under ten, for all unaccompanied minors, for pregnant women, and for many single adults from nations that would not accept deportees.
3. Two days after the 2020 election, the Mexican government passed a law prohibiting the detention of families, pregnant women, and unaccompanied minors. It then released thousands of families from 58 Mexican detention centers ten days before President Biden took office.
4. The Biden administration established an ad hoc Border Patrol turnstile honor system by which Title 42-exempted families and others were released into the U.S. with a promise to report back later; this catch-and-release approach came eventually to incorporate the aforementioned conveyor-belt policy, with Border Patrol delivering illegals to non-governmental organizations that would arrange bus and air travel to cities around the U.S.
5. To give the false impression of fewer illegal crossings, the Biden administration created an ad hoc system that allowed hundreds of thousands of illegal immigrants to use a cell phone app called CBP One to schedule “pre-approved” entries at border crossings and U.S. airports.

Those who seek to come to the U.S. illegally are rational actors. They are more willing to pull up stakes and come when they think the effort and expense will pay off. The typical cost for the dangerous journey is $10,000 per person paid to smugglers. Few will take the gamble when the odds are against them. It’s a different matter when the odds move dramatically in favor of success as they did in January 2021.

Toward the end of the Trump administration, Border Patrol used Title 42 to deport nearly 90 percent of apprehended illegals. The Biden administration immediately reduced that number to 60. By 2023, Title 42 deportations were down to 35 percent. And on May 12, 2023, the Biden administration formally ended Title 42, and with it all instant expulsions. U.S. intelligence had predicted that ending Title 42 would lead to between 14,000 and 18,000 crossings a day, and that prediction turned out to be right. As I recently reported, it appears that the Biden administration recently took steps to reduce these numbers—most likely in response to public outrage in an election year—though it remains to be seen how long this will last.

It is too early to gauge the full impact of the ongoing settlement of millions of illegal foreign nationals in the U.S. We know that the initial financial cost is high—$400 billion, by one estimate, to feed, house, clothe, and resettle the illegals who have been allowed to stay. Then there is the burden placed on public school districts that have no choice but to take in millions of new children who often speak no English and whose educations are not commensurate with those of their schoolmates. It is probably not coincidental that hospital systems across the nation have fallen deep into the red since the great mass migration crisis began. And large cities across the nation are looking to Washington for help with unfunded and unexpected fiscal burdens reaching into the tens of billions to care for the hundreds of thousands showing up with hands out.

Expense, of course, is only one part of the equation in terms of impact. Public safety, criminal justice, and national security systems face unprecedented new burdens as the personal histories and criminal backgrounds of most of the millions allowed easy entry are unknown and, often, unknowable. Some percentage will commit crimes and—in addition to the often horrendous effects on the victims of their crimes—increase the load on our already over-burdened courts and prisons. One prays not, but some may also commit acts of terrorism. Last but not least, this great influx will increase joblessness and put immense downward pressure on wages for American workers.

It is not rocket science to figure out how to solve the immigration crisis. Nor is it hard to tell whether a politician is serious when he proposes a solution—one can simply ask whether the proposal will increase or decrease the odds that an aspiring illegal immigrant will decide to make the significant effort and financial sacrifice. For instance, in the ongoing standoff in Texas, placing razor wire at the border as the Texas Governor ordered done will clearly decrease the odds, and removing the razor wire as the Biden administration seeks to do will increase the odds. Similarly, any politician who proposes a solution that begins by granting amnesty to illegals currently in the U.S. is increasing the odds and not serious.

There are two essential steps we must take to begin to solve the border crisis:

1. Enforce current immigration law, specifically the requirements under the Immigration and Nationality Act to detain and deport illegal entrants.
2. Restore the threat of trade tariffs on Mexican goods to ensure Mexico’s cooperation with reinstituting the Remain in Mexico policy, forcing asylum seekers to stay in Mexico while their asylum claims are processed.

Three additional steps will help to solve the problem:

3. Withdraw from the United Nations Convention Relating to the Status of Refugees treaty, which requires the U.S. to meet outdated standards for handling asylum claimants; then institute an asylum law that ends the current catch-and-release system and requires that an asylum claim first be made in a suitable departure or transit country, such as Mexico.
4. Put diplomatic and financial pressure on Colombia, Panama, Costa Rica, and Mexico to implement their own policies of detention and deportation of foreign nationals who are in those countries illegally.
5. Close loopholes in U.S. immigration law such as the Flores Settlement Agreement—which circumvents Immigration and Nationality Act requirements for detention and deportation during asylum claims and forces the release of asylum-seeking families within 21 days—and the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, which requires the quick release of immigrant minors if they are from anywhere but Mexico.

Our politicians know these actions are the ones needed. The problem is not a lack of knowledge but a lack of political will. Too many of our elected leaders have selfish reasons to let the border crisis continue, no matter what their constituents demand. Whether they will be able to continue in their inaction is in the hands of the American people.