Since Biden became the president, the Border Patrol has encountered 5,408,117 illegal border crossers between ports of entry on the Southwest border. The Biden administration has responded to this crisis with a carrot-and-stick strategy which couples an expansion of legal pathways to the United States with adverse consequences for those who still choose to make an illegal entry. 

Migrants who enter illegally instead of taking advantage of a legal pathway may be processed in expedited removal proceedings. If they are deported, they will be barred from reentry for five years and be presumed ineligible for asylum absent an applicable exception. 

The legal pathways program admits migrants without a visa or other valid entry document “at a port of entry” instead of after making an illegal crossing “between ports of entry.” How does this make the admission of a migrant without a visa or other valid entry document legal?


Nevertheless, this strategy worked initially. Illegal crossings dropped from 211,996 in April to 144,570 in June but they went back up to 232,972 in August. Informal reports from CBP indicate that in September, the Border Patrol encountered more than 260,000, which would be the highest figure ever reported. 

In fact, illegal border crossings have gotten so bad in Texas that Mayorkas has resorted to a Trump tactic for funding the construction of border barriers.

On October 10, 2018, Trump’s DHS secretary used his authority under section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, to construct barriers and roads in areas of high illegal entry into the United States in Cameron County, Texas. 

On October 5, 2023, Mayorkas used the same authority to construct barriers and roads in areas of high illegal entry into the United States in Starr County, Texas. 

Mayorkas found that the Rio Grande Valley Sector is an area of high illegal entry. The Border Patrol had encountered more than 245,000 such entrants attempting to enter the United States between ports of entry in that sector as of early August of fiscal 2023. He concluded therefore that he must use his authority under section 102 of IIRIRA to install additional physical barriers and roads in the Rio Grande Valley Sector.

Rio Grande Valley Sector agents patrol more than 320 river miles, 250 coastal miles and 19 counties equating to over 17,000 square miles. Additional roads are needed to reach some of those areas quickly.


I am not surprised that Biden’s DHS Secretary is going to build a border wall. When he was a senator, Biden voted for the Secure Fence Act of 2006, which authorized the construction of hundreds of miles of additional fencing along the Southwest border. 

The question now is, what’s next? 

It seems likely that Mayorkas will build more walls. But will he bring back more of Trump’s border measures? 

Unfortunately, even if he does and it brings illegal crossings under control, it wouldn’t make much difference. Migrants without visas or other valid entry documents will still be admitted through one of the legal pathways he has created.

Legal pathways

The administration established new border enforcement actions to leverage the success of its Venezuelan enforcement initiative.

The initiative permitted certain Venezuelans who arrived by air to be paroled into the United States lawfully instead of having to make an illegal border crossing on the Southwest land border. This apparently produced a 98 percent drop in Venezuelans arriving at the Southwest border.

The new enforcement actions that Mayorkas expanded the Venezuelan enforcement initiative to include nationals from Cuba, Haiti and Nicaragua. The total number of parole grants was raised to up to 30,000 a month, which would be around 360,000 per year.


Participants must have a supporter in the United States who has agreed to provide them with financial support for the duration of their parole in the United States, and they must clear security vetting and meet other eligibility criteria.

The enforcement actions also expanded the CBP One mobile application program to permit migrants without visas or other valid entry documents to schedule an appointment to present themselves for inspection at a designated port of entry and initiate an asylum application. The number of appointments available has increased from 1,000 per day to 1,450, which amounts to around 530,000 per year.

Very few migrants from Venezuela, Cuba, Haiti and Nicaragua are turned away. From January through September 5, 2023, only 698 out of 225,000  of them were rejected. This means that 99.7 percent were admitted into the United States.

Moreover, according to border security expert Todd Bensman, the administration also is secretly flying them into airports around the country. Data obtained by the Center for Immigration Studies through a Freedom of Information Act request indicates that the administration has done this with more than 200,000 migrants over the past year.

In other words, the administration seems to have determined that it should reduce illegal crossings between ports of entry, but it doesn’t appear to have abandoned its plan to let as many undocumented migrants as possible into the United States.