Introduction
Immigration flows from and through Mexico to the United States are a multidimensional phenomenon. Only when approached holistically from socio-political, legal, economic, psychological, and diplomatic perspectives, is it possible to capture the complexity of the issue and the multiple drivers of irregular immigration. This brief sheds light on the current situation of irregular migration at the U.S.-Mexico border and summarizes key findings based on six interviews conducted with immigration experts in the autumn of 2022. Based on the information gathered during the interviews, this brief employs a multidisciplinary approach to sort out a number of issues the U.S. immigration system has failed to address over time, key obstacles to reforming the system, and potential paths to resolution.
Methodology
This brief follows the premise of a multifaceted approach toward immigration. For that, I conducted several interviews with experts on immigration: researchers, political scientists, attorneys, diplomats, and psychologists. These interviews were conducted in person and online between November 28 and December 1, 2022, at the Baker Institute Center for the United States and Mexico. The conversations were recorded and later transcribed.[1] They serve as the core data for a description of the challenges faced by the Biden administration and migrants today, and the crafting of potential solutions to it. All interviewees identified problems relating to the immigration system and suggested ways to address them.
The experts interviewed were Tony Payan, Luz María Garcini, Daniel Tichenor, José Iván Rodríguez-Sánchez, Elizabeth Mendoza and Alicia Kerber Palma.
Current Situation at the United States-Mexico Border
The migration crisis[2] at the U.S.-Mexico border is evident from statistical data alone. The number of encounters[3] at the southern border in fiscal year 2022 surpassed 2.5 million (Table 1[4]), which is significantly higher than the number of arrivals during the Trump years (2017-2021). A possible explanation for the substantive rise is that the Joseph R. Biden administration may have sent a misguided message to potential migrants when it announced that its policies would depart considerably from those of the previous government. Faced with Biden’s initial policy announcement, many would-be migrants assumed that the border was going to be relatively open and would be easier to cross. Predictably, the caravans of migrants heading toward the U.S. soon appeared. Over time, the Biden administration implemented measures to stem the flow of migrants across the border. Consequently, the reality was very different to what most migrants expected — there were overcrowded migrant camps, continual deportations, and expulsions — in addition to difficult conditions on the Mexican side of the border, where many were subjected to violence and other inhumane conditions.
Table 1 — The Number of Apprehensions at the Southern Border in FY 2017-2023
Source: U.S. Customs and Border Protection.
Partisan Divisions and Political Gridlock on Immigration
Initially, in seeking to depart from his predecessor’s policies, the Biden administration tried to set a comprehensive policy for a more humane immigration system. It did so by reversing former President Trump’s largely anti-migrant policies[5] and by strengthening the relationship with Mexico and Canada to slow the flow of migrants and to foster regular migration in the region.[6] However, when the migrant surge occurred, Biden faced criticism on his management of the situation at the U.S.-Mexico border — much of it from governors in border states Texas and Arizona. They argued that the border control system was overwhelmed and did not have the resources to cope. Accordingly, soon the Biden administration, which had previously rescinded the Trump-era Migrant Protection Protocols,[7] reverted to some of the former president’s policies, including the use of Title 42[8] to expel immigrants at the southern border. In effect, even though his administration had previously sought to end the use of Title 42, Biden would soon find himself defending it.
Meanwhile, as many new migrants from countries other than Mexico — primarily Cubans, Haitians, Venezuelans, and Nicaraguans — arrived at the border, the U.S. Department of Homeland Security (DHS) established new procedures for them, aiming to provide safe, orderly, and lawful pathways to enter the U.S., including temporary authorization to work. More recently, however, faced with additional migrant surges, such as that of El Paso, Texas, in January 2023, Biden reversed course and decided to apply Title 42 to people of these four nationalities. This was done to discourage their treks through Mexico toward the U.S. border. The administration also developed a new message, warning that any immigrant who showed up at the border would not be allowed into the United States and telling everyone to use a newly created online app to apply for asylum. The idea was that those who wanted to make a case before an immigration court in the U.S. would need to make an appointment from their home country before being processed at the ports of entries. DHS also applied Title 8 for expedited removal of those deemed to be “inadmissible arriving aliens.”[9]
Past administrations have tried applying a variety of possible solutions to what many believe is a broken U.S. immigration system, in part to avoid crises such as those faced by both the Trump and the Biden administrations. However, Democrats and Republicans have failed to find common ground, leaving the executive branch with few tools to deal with the flow of migrants.[10] One example of the executive branch using its limited power to solve the immigration policy gridlock is the implementation of DACA (Deferred Action for Childhood Arrivals), through which the Obama administration tried to legalize individuals who came to the U.S. illegally with their parents. But this program was controversial from the beginning, and President Trump tried to scrap it.[11] His attempts to do so failed in court, largely because he had not followed the proper channels to end it. The Obama administration also sought to implement a similar program titled DAPA (Deferred Action for Parents of Americans), which gave legal status to undocumented migrants whose children were born in the United States. This program was unsuccessful from the start because it was stopped in federal court and was never implemented.
Another factor in the current gridlock on immigration policy is that both Democrats and Republicans seem to use immigration to gain political attention. Of course, their disagreement on the issue is genuine, even if bridgeable. For instance, according to a Pew Research Center Survey,[12] Democrats prioritize paths to legal status for undocumented immigrants (especially children), while Republicans’ main concern is border security and the deportation of undocumented immigrants. Regardless, the result has been political paralysis, with few alternatives for dealing with the crisis.
Challenges Facing the Immigration System Today
U.S. Immigration System is Slow and Stymied by Politics. According to Mendoza and Payan, the U.S. immigration system is too slow to respond to specific migrant surges, largely due to lack of capacity to process the rising number of arrivals. It is also unresponsive to shifting conditions at the border, mainly because of limits in the number of resources allocated by the U.S. government to the region, and more importantly because of the increasing gap between the visa system limits and the sheer number of arrivals.
A deeper issue discussed in the interviews is the fact that the system is not capable of responding to America’s labor market needs; an obvious mismatch that would normally prompt legislative action. However, the border crisis is the subject of constant frequent unfruitful political debates on the inadequacy of immigration policies and little to no action on Capitol Hill.
The profound divisions between Democrats and Republicans are reflected in the indecision surrounding immigration reform, as Tichenor noted:
"The base of the Republican party is very focused on security, immigration restriction, and a general scapegoating of undocumented immigrants for all sorts of problems. On the Democratic side, in its base, there is a broad support for expansive immigrant rights and for creating legal opportunities for undocumented immigrants and, generally, for expansive and diverse visas."
Mental Health Needs of Migrants. Beyond processing capability, political paralysis, and the mismatch regarding labor markets and immigration, there are other issues discussed during the interviews. Garcini explained how the current system fails to address the mental health needs of the many migrants who make the journey to the United States.[13] She stressed the perspective of the migrants themselves, emphasizing that many have experienced severe trauma and continue to face difficulties at all stages of the migration process.[14] These include threats by organized crime, poverty, climate change in their home country, domestic violence, labor exploitation, extortion, and trafficking in both the transit and host countries. She noted that, even though undocumented immigrants are generally very resilient,[15] they also experience high risk of suicide.[16]
Labor Shortages in the U.S. Returning to the issue of labor markets and their nexus with immigration, the border crisis represents an opportunity to address gaps in the U.S. labor market, particularly in light of current demographic changes in the country. As the U.S. population ages and fertility rates decrease, labor shortages are deepening. Although evidence shows that immigrants represent up to 70% of its labor force in some economic sectors, the U.S. government has failed to connect the dots, as emphasized by Rodríguez-Sánchez.
Protection for Dreamers.[17] Also, not all immigrant groups are the same or should be treated with the same policy instruments. One special case is the DACA recipients or “Dreamers.” Mendoza, one of the interviewees, noted that “Dreamers” — or the young undocumented immigrants who were brought to the United States as children — are some of the most qualified workers in the U.S. labor market and fit the perfect profile of a young, productive U.S. resident. Despite this, “Congress has failed to pass legislation that would provide permanent protection for the ‘Dreamers,’” which is “a political issue,” stated Mendoza. While there have been discussions that Republicans might join Democrats in enacting a permanent legalisation process for young undocumented immigrants, this now seems less likely because of the lack of bipartisan will for an agreement on the status of Dreamers. In the meantime, DACA recipients continue to live in great uncertainty about their futures.
What Could Happen if Trump Takes Office Again? During the discussions behind this brief, the future also looked uncertain on the issue of immigration. Tichenor, for example, considered the potential consequences toward immigration policy if former President Trump were to win a second bid for president in 2024: He would be expected to seek highly restrictive immigration policies, whether it be toward DACA beneficiaries or at the southern border, detaining or removing undocumented immigrants. He would also likely resume building the 2000-mile wall along the border and deploy more U.S. troops there. “Very stingy” policies, according to some interviewees, would also attempt to reduce legal immigration through executive action and to limit the entry of migrants from countries considered undesirable.
Possible Solutions
Even so, students of immigration have proposed numerous solutions to the immigration policy problem. Some of these potential resolutions came up in the conversations as well.
Modernize the Immigration System. Mendoza, a lawyer and expert on the U.S. immigration court system, called for Congress to pass immigration reform to improve and modernize the immigration system so that it would be more responsive to the needs of U.S. communities. She argued that this is particularly needed for immigrants who have been living in the U.S. for decades, have children born in the U.S., have been working, paying taxes, and serving in military, and needs to be rectified.
Expand Worker Visas to Meet Demographic Challenges. Payan made a similar argument for a more open immigration system because the U.S. is experiencing a demographic crisis. Given current shifts in U.S. demographics, an additional 7-10 million new workers are needed. Payan also argued that the current visa paths are insufficient to fill this gap. He argued that the TN visa[18] should be expanded in number and scope to cover professors, economist, nurses, doctors, and numerous other professions, including in the construction and hospitality industries: “There is a solution. A guest-worker program would hand out 1-3 million TN visas renewable every three years.”
Rodríguez-Sánchez[19] suggested that gaps in the labor force could be supplemented by legal workers from other countries via short-term H-2A and H2-B visas, designed respectively for the agricultural and non-agricultural sectors, or by creating new visa paths for temporary workers.
Develop Policies that Focus on the Needs of Female Migrants and Other Vulnerable Groups. As part of Mexico’s commitment to human rights, the Mexican Consulate General in Houston is addressing Mexican immigrant issues by applying innovative perspectives. Ambassador Alicia Kerber Palma described how — after first acknowledging the difficult situation of undocumented migrants — the consulate offers ways to normalize their lives, including comprehensive attention to female migrants, who are often more vulnerable than others. Studies on migrant women and their contribution to the economies of the home and host countries are scarce, so the Mexican consulate’s role in fostering a gender approach — as part of a feminist foreign policy giving voice and visibility to women — is an important one. More approaches like this — that consider the impacts of migration on particularly vulnerable populations — are needed going forward.
Destigmatize Undocumented Immigrants. Garcini called for everybody to use their voice to destigmatize undocumented immigration, for example by volunteering in community-based organizations that help immigrants, stopping the use of antimigrant rhetoric, and creating a new generation of scientists, doctors and attorneys who will stand for and support undocumented immigrants.
Political Obstacles
There are, however, important political obstacles to changing the general tone of policy discussions around immigration and to immigration reform, as highlighted below.
Path to Citizenship, or Not? Republicans are wary of legalizing undocumented immigrants, presumably because they could then become U.S. citizens, and immigrants tend to vote Democratic. To avoid this, Tony Payan suggests that the 10.7 million undocumented workers be made U.S. permanent residents with the right to work, study and retire — i.e., a special green card category — with no path to citizenship. Democrats oppose this, however, as many argue that this would create a working class with economic participation but no political rights.
Lengthy Application Process for Legal Permanent Resident Status. Another key point is that the process to apply for Legal Permanent Resident status (LPR) and enter the U.S. lawfully is too long. For Tichenor, it is crucial to address the enormous backlogs and inefficiencies in the legal immigration system — currently people are waiting for years to get visas — and to find solutions for the root causes of immigration, the reasons why people leave their homes. Interestingly, even if the 10.7 million undocumented residents were allowed to stay as green card holders (LPRs), they would not fill the labor market shortages, as most of them are already employed anyway.
Conclusion: Political Gridlock Likely to Continue
Over the course of these conversations, multiple perspectives came into focus, as did the many different visions of experts who are well acquainted with the situation at the border and the U.S. immigration system. Despite their research and activism, however, the political landscape for solving immigration issues is unfavorable, and it is difficult to ensure that solutions to the issue are included in the political debate and make it onto the public policy agenda.
While there are some positive signs on the Democratic side (such as Biden’s immigration reform proposal), Republicans seem to go to the opposite extreme, taking more restrictive stances toward immigrants (even documented ones, as seen during the Trump administration) and even pushing for anti-immigrant measures, such as Title 42. With Democrats losing their majority in the House of Representatives in the 2022 midterm elections, the chances of Congress passing any significant pro-immigrant legislation have diminished. Furthermore, the Republican majority on the Supreme Court makes legal challenges on immigration policies taken by the executive branch without congressional action more likely.
However, according to public opinion polls, many Americans support a more robust immigration system. Although this has yet to translate into legislative action, policymakers may want to prioritize this issue as the situation at the border continues to deteriorate. A trade-off between additional visa paths for migrants in exchange for stronger border security, for example, might be a good place to start political negotiations on the issue. Thus, in general, the solutions highlighted in this brief — particularly efforts to modernize the immigration system and expand worker visas — are essential ways to start repairing our broken system.
Endnotes
[1] Unless otherwise noted, quotations in this brief are taken from those transcribed interviews.
[2] The word crisis deserves some clarification. The current situation stems from a combination of factors that include the drivers that expel migrants from their homelands, the inability of the U.S. immigration system to vet and absorb the majority of them, and the fact that many migrants remain stranded along the border in poor conditions. This could be considered a crisis of migration, although some may well argue that it is a crisis partly of the U.S.’s own making, as it has failed to invest in enforcing its ownlaws on migrants arriving at its borders.
[3] The word encounters is, in itself, a controversial term. An “encounter,” as defined by Tony Payan (see Most Border Patrol Apprehensions are for Repeat Crossers, But Agency Data Doesn’t Yet Provide Full Picture at https://trac.syr.edu/reports/694/), is a single face-to-face encounter between a U.S. agent and a potential asylum seeker or irregular migrant. However, a single individual may come into contact with a U.S. agent several times, each time increasing the number of encounters. The “encounter” figures are thus higher than the actual individual migrant count.
[4] U.S. Customs and Border Protection (2023) CBP Enforcement Statistics Fiscal Year 2023 https://www.cbp.gov/newsroom/stats/cbp-enforcement-statistics.
[5] Mónica Verea, “The Legacy of Trump’s Anti-Immigrant Agenda: Actions and Challenges for Biden,” in Trump’s Legacy in Migration Policy and Postpandemic Challenges for Biden, edited by Mónica Verea and Camelia Tigau (Mexico City: Universidad Nacional Autónoma de México, Centro de Investigaciones sobre América del Norte, 2022).
[6] The White House (2023) Declaration of North America (DNA), January 10, 2023, https://www.whitehouse.gov/briefing-room/statements-releases/2023/01/10/declaration-of-north-america-dna/.
[7] Guardian staff and agencies, “Biden administration ends Trump-era ‘Remain in Mexico’ policy,” The Guardian, August 9, 2022, https://www.theguardian.com/us-news/2022/aug/09/biden-ends-remain-in-mexico-trump-policy.
[8] Title 42 is an immigration program first used by the Trump administration to expel migrants on the basis of safeguarding public health during the COVID-19 pandemic.
[9] U.S. Department of Homeland Security, DHS Continues to Prepare for End of Title 42; Announces New Border Enforcement Measures and Additional Safe and Orderly Processes, January 5, 2023, https://www.dhs.gov/news/2023/01/05/dhs-continues-prepare-end-title-42-announces-new-border-enforcement-measures-and.
[10] Adam B. Cox and Cristina M. Rodríguez, The President and Immigration Law (New York: Oxford University Press, 2020).
[11] National Immigration Law Center, “Supreme Court Overturns Trump Administration’s Termination of DACA,” June 22, 2020, https://www.nilc.org/issues/daca/alert-supreme-court-overturns-trump-administrations-termination-of-daca/.
[12] J. Baxter Oliphant and Andy Cerda, “Republicans and Democrats have Different Top priorities for U.S. Immigration Policy,” Pew Research Center, September 8, 2022, https://www.pewresearch.org/fact-tank/2022/09/08/republicans-and-democrats-have-different-top-priorities-for-u-s-immigration-policy/.
[13] Luz M. Garcini, Juan M. Peña, Angela P. Gutierrez, Christopher P. Fagundes, Hector Lemus, Suzanne Lindsay, and Elizabeth A. Klonoff, “‘One Scar Too Many:’ The Associations Between Traumatic Events and Psychological Distress Among Undocumented Mexican Immigrants,” Journal of Traumatic Stress, 2017, 30(5), 453–462, https://doi.org/10.1002/jts.22216.
[14] See also Katia Adimora, “San Antonio Migrant Tragedy: 53 Deaths Down to Criminals and a Failed US Migration System,” The Conversation, July 7, 2022, https://theconversation.com/san-antonio-migrant-tragedy-53-deaths-down-to-criminals-and-a-failed-us-migration-system-186355.
[15] Luz M. Garcini, Germán A. Cadenas, Melanie M. Domenech Rodríguez, Alfonso Mercado, Liliana Campos, Christina Abraham, Michelle Silva, and Manuel Paris, “Lessons Learned From Undocumented Latinx Immigrants: How to Build Resilience and Overcome Distress in the Face of Adversity,” Psychological Services, 2022, 19, 62–71, https://doi.org/10.1037/ser0000603.
[16] Amanda Venta, Tessa Long, Alfonso Mercado, Luz M. Garcini, and Germán A. Cadenas, “When the United States Says You Do Not Belong: Suicide-related Thoughts and Behaviors Among Immigrant Young Adults Varying in Immigration Legal Status,” Suicide and Life-Threatening Behavior, 2022, 52(5), 876–886, https://doi.org/10.1111/sltb.12871.
[17] Those protected by DACA are known as “Dreamers.”
[18] Per the U.S. Department of State, “The nonimmigrant NAFTA Professional (TN) visa allows citizens of Canada and Mexico, as NAFTA professionals, to work in the United States in prearranged business activities for U.S. or foreign employers:” https://travel.state.gov/content/travel/en/us-visas/employment/visas-canadian-mexican-nafta-professional-workers.html#:~:text=The%20nonimmigrant%20NAFTA%20Professional%20(TN,to%20work%20as%20NAFTA%20professionals. The TN visa was created by the North American Free Trade Agreement (NAFTA), now modernized as the Agreement between the United States of America, the United Mexican States, and Canada (USMCA).
[19] See also Rodriguez-Sanchez, J.I., “How Remittances Impact the Economies of Mexican States and Municipalities,” Houston: Rice University’s Baker Institute for Public Policy Center for the U.S. and Mexico, November 28, 2022, https://www.bakerinstitute.org/research/how-remittances-impact-economies-mexican-states-and-municipalities.
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