For decades, immigration law has been a political toy that leaders use as a continuing campaign issue. These leaders will tell voters (before election day) that they will be champions in solving what is commonly referred to today as the immigration “problem.” One side of the aisle promises a level of amnesty, while the other side advocates for a limited immigration system. Some want to build a wall. Others want a wide-open border without restrictions on entry. There are those who want to deport every undocumented person in the United States, while others call for an extensive amnesty program to legalize all undocumented individuals in the United States. Congress, however, always stalls any immigration reform bill that it considers.
Given this, the immigration “problem” is left to the executive – the President. As the last eight years have proven, different presidents have opposite approaches and, using executive orders, have implemented significant immigration restrictions, or lack thereof, absent the consent of or legislation from the United States Congress. Why? Well, it seems that Congress does not like to legislate.
Immigration Numbers
From 2008 through 2019, the United States government has, year after year, reported that at any given time, there were approximately 11.5 million undocumented immigrants in the United States.[1] This number, however, has long been fictional. There are many, many more.
In 2018, a joint study of Yale University School of Management and the Massachusetts Institute of Technology found that “the actual population of undocumented immigrants residing in the country is much larger than that, perhaps twice as high, and has been underestimated for decades.”[2] The study analyzed a twenty-five-year period using mathematical modeling on a range of demographic and immigration operations data and concluded that:
The results of [the] analysis [is] clear: The number of undocumented immigrants in the United States is estimated to be substantially larger than has been appreciated, at least in widely accepted previous estimates. Even an estimate based on what [is] view[ed] as conservative assumptions, in some cases unrealistically so, generates an estimate of 16.7 million, well above the conventional estimate of 11.3 million. The mean of [the] simulations, which range over more standard but still conservative parameter values, is 22.1 million, essentially twice the [then] current widely accepted estimate.[3]
While former President Donald J. Trump cut back on border crossings, there remained a net positive each year of his presidency when comparing the number of undocumented immigrants deported from the United States to those who unlawfully entered or remained in the United States.
Since then, the number of undocumented immigrants in the United States has significantly increased because of the lax border, prosecutorial discretion, and asylum policies that took effect upon the inauguration of President Joseph Biden.
According to United States Customs and Border Protection (“CBP”), nearly 9 million individuals approached CBP agents at the southern border and were permitted to enter the United States.[4] Another 500,000 individuals did the same at the United States border with Canada.[5] Besides the 9.5 million entries, CBP estimates that over 2.5 million “gotaways” entered the United States without detection.[6] When combined with individuals who lawfully entered the United States with temporary visas but failed to depart when expected, the estimated increase in undocumented immigrants in the United States in the last three years is well over twelve million, conservatively.
With the Biden Administration’s immigrant influx, today, the United States, quite possibly, is over 33.1 million – nearly a tenth of the current population.[7]
These numbers are estimates. No one is certain of the actual number, given the lack of participation in the annual census by undocumented immigrants, as well as their successful ability to remain undetected. Regardless of the actual number, the fact is that it is larger than ever before and is proliferating with each passing day.
Trump v. Biden
The Trump and Biden immigration policies are complete opposites. President Trump focused on limiting undocumented immigrants from entering and/or remaining in the United States. His administration increased scrutiny of visa applicants abroad, implemented out-of-country asylum processing, such as Remain-in-Mexico, increased thresholds for asylum seekers, enforced deportation orders, conducted visa overstay arrests, refused to exercise prosecutorial discretion in enforcing immigration laws, and authorized federal agents to take any action necessary to stop the unlawful flow of individuals across both the northern and southern borders of the United States and to remove those already in the United States.
President Biden’s approach has been quite different, recognizing that individuals are often escaping their home countries because of violence, persecution, criminal gangs, and devastating country conditions and that the United States must serve as a haven for those in despair, regardless of country of origin. The Biden Administration has embraced the words that have long been on the pedestal of the Statute of Liberty: “Give me your tired, your poor, your huddled masses yearning to breathe free, the wretched refuse of your teeming shore. Send these, the homeless, tempest-tost to me, I lift my lamp beside the golden door!”
The Biden Administration removed much of the scrutiny of visa applicants abroad, reduced burdens and thresholds for asylum seekers, limited enforcement of deportation orders, and encouraged immigration agents, judges, and prosecutors to exercise discretion favorable to undocumented immigrants when enforcing federal immigration laws. Unfortunately, some of these policies have had unintended consequences: a massive influx of immigrants at both United States borders who are seeking asylum, lackluster enforcement of undocumented immigrants convicted of certain crimes, increases in fraudulent asylum claims that are presented to gain entry into the United States, massive immigration court backlogs, increases in visa overstays, and more.
These competing approaches will never change as immigration, given that the immigration “problem” will forever remain the most hotly debated issue in the United States, absent necessary legislative action.
What to Do?
The solution, quite frankly, is comprehensive immigration reform that starts with members of Congress. However, this task has not been undertaken for nearly forty years. Most fear taking on immigration reform because of either their constituencies or because the immigration “problem” serves as an excellent reelection talking point to many.
Any immigration reform necessitates an understanding that the immigration system that led to tens of millions of undocumented immigrants living in the United States today must change before one can consider any form of amnesty or protection from deportation.
First and critical to comprehensive immigration reform is a recognition that some—not all—in the United States without lawful status must be removed from the United States. There is no denying that there are present among us undocumented immigrants who have criminal convictions ranging from driving under the influence, retail theft, drug possession, and domestic violence up to drug trafficking and murder. They must be removed from the United States if a federal immigration court denies relief from deportation.
Second, comprehensive immigration reform necessitates securing America’s borders and preventing visa overstays with immigration enforcement actions. Full Stop. A country is not a country absent protected borders. Together with this is the fact that many undocumented immigrants in the United States seek employment only, and many United States employers are willing to ignore federal immigration laws to employ undocumented immigrants without any accountability. If employers are willing to employ undocumented immigrants, there will be undocumented immigrants ready to take on employment.
While many do not favor mandating E-Verify for all employers across the United States, this may be the only solution to the root of the immigration “problem.” E-Verify, authorized by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), is a web-based system through which employers electronically confirm the employment eligibility of employees. Using this system, employers enter certain information on each employee. E-Verify then electronically compares that information to records available to the United States Department of Homeland Security (DHS) and the Social Security Administration (SSA). A few seconds later, the E-Verify system either confirms the employee’s employment eligibility, indicates that the employee needs to take further action and cannot yet be hired, or informs the employer that there is no match and, therefore, the employee is not eligible to work in the United States. While drastic, mandating E-Verify across the United States would serve to limit what many consider to be the root cause of the high number of undocumented immigrants in the United States – the desire to work with employers willing to employ, regardless of immigration status.
Third, there must be a recognition that most—not all—in the United States without lawful status are permitted the opportunity to remain in the United States. Tough to determine, is what immigration status should be given to these individuals. Some will argue it should be limited to basic protection from deportation (with removal proceedings if certain conditions later arise) and nothing more. In contrast, others contend that lawful permanent resident status with the ability to become naturalized United States citizens is necessary. It is important to remember that many undocumented immigrants have been in the United States for decades, pay significant taxes, take on gainful employment by employers willing to ignore federal immigration laws, care for their families, lead law-abiding lives (other than their unlawful entry into the United States), and work in industries that many Americans fear joining.
Fourth, the United States is a beacon of hope for many across the world who are suffering persecution on account of race, gender, nationality, ethnicity, sexual identity, gender, religion, and more. To refuse to aid some is un-American. To keep an open-border policy is also un-American. A middle ground is establishing asylum processing centers at certain locations along the northern and southern borders of the United States that allow for prompt adjudication of requests for protection in the United States. Moreover, expanding and streamlining the refugee resettlement program will prove crucial to handling global requests for protection in the United States. This program allows individuals worldwide to seek refugee protection in the United States while living in other countries. The process, as it stands, is complex and takes decades.
The implementation of extensive vetting and background review policies is critical to both the border asylum process and the refugee resettlement program. Today, CBP utilizes a simple FBI record check that reports incidents occurring only in the United States. It is obvious that any FBI record check will provide clean results as the immigrants seeking entry into the United States have never been in the United States.
Finally, comprehensive immigration reform requires an overhaul of the legal immigration process for families, workers, and employers. Immigrants are an important part of the United States today and tomorrow. Employers need employees—whether temporary or permanent. Spouses and minor children of United States citizens and lawful permanent residents must be able to enter the United States without years of delays and bureaucratic hiccups. These points are without dispute. American employers need more avenues to sponsor individuals living abroad to enter the United States to assume roles in various industries and jobs of all types without the extensive processing and limitations of today while ensuring that proper vetting takes place before entry into the United States.
Conclusion
The United States must act on immigration now. Without comprehensive immigration reform, in whatever form, the United States will be subject to the whims of each new President and his or her executive powers. Reform must be real, and all sides must be considered to reach a middle ground. This reform starts with Congress. Unfortunately, it does not appear that Congress will ever act on comprehensive immigration reform, as the United States is a country divided on this question. And so, the immigration “problem” remains.
[1] Krogstad JM, Passel JS. 5 Facts about Illegal Immigration in the US. Pew Research Center, Washington, DC (2017).
[2] Fazel-Zarandi MM, Feinstein JS, Kaplan EH (2018) The number of undocumented immigrants in the United States: Estimates based on demographic modeling with data from 1990 to 2016. PLoS ONE 13(9): e0201193. https://doi.org/10.1371/journal.pone.0201193 (last accessed March 1, 2024)
[3] Id.
[4] “Nationwide Encounters,” CBP Data Portal (current as of February 14, 2024).
[5] Id.
[6] Id.
[7] “The Demographic Outlook: 2024 to 2054,” Congressional Budget Office (January 18, 2024)