Obama Secured the Border — Why Can’t Biden?

Obama Secured the Border: Nearly all of the analysis that you hear about the Southwest border compares Donald Trump’s performance to Joe Biden’s. Much has been made — including by me — of how secure the border was under the last administration compared to the dreadful state of border security today. The most important comparison, however, is between President Biden and his old boss — Barack Obama. If Obama could secure the border, why can’t Biden? The tools available to each are roughly the same — the difference is that Obama wanted to deter illegal entries; Biden didn’t.

Border Patrol Apprehensions Under Obama and Biden. Between Obama’s first full fiscal year in office (FY 2009) and his last (FY 2016), Border Patrol agents at the Southwest border apprehended just over 3.3 million illegal entrants, an average of about 413,000 apprehensions per year.

In just the three full years (February 2021 to January 2024) that Biden’s been president, agents have apprehended more than 6.38 million illegal migrants, 93 per cent more than in that whole eight-year period under Obama, at an average rate of about 2.1 million per year — more than five times the Obama standard.

Poverty and economics can’t explain that difference. Obama came into office at the end of the “Great Recession” of 2007 to 2009, during which global trade declined a whopping 15 per cent and global unemployment rose 3 per cent — 30 million jobs lost, many in the same countries that migrants hail from today. Covid was bad, but even the wealthy were feeling the pinch when Obama took office.

In just three years under Biden, agents have apprehended nearly twice as many aliens than during the whole eight-year period under Obama.

The same “chavismo” that has made Venezuela — a main migrant-sending country — an economic basket case had begun nearly a decade before Obama entered the Oval Office, and it was compounded by the global downturn.

In those eight years, FY 2009 to FY 2016, however, agents apprehended just 235 Venezuelans who entered illegally over the Southwest border. In FY 2023 alone, more than 200,000 were apprehended.

Cuba, Haiti, and Nicaragua are also major sources of illegal migrants. Obama’s Southwest apprehension totals from those three countries over eight years: 650 Cubans, 215 Haitians, and 8,508 Nicaraguans. Biden’s totals over three years: about 379,000 Cubans, 75,000 Haitians, and 330,000 Nicaraguans.

Obama was doing something to control the border that Biden isn’t. Let’s take a look at three key tools at the disposal of each administration, and how Obama used them compared to what Biden’s doing.

Section 212(f) of the INA. Much has been made (again, admittedly, by me) over President Biden’s abject refusal to utilize section 212(f) of the Immigration and Nationality Act (INA) to deny entry to aliens coming to the United States illegally.

That provision allows the president, by proclamation, to “suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants”, and to do so “for such period as he shall deem necessary” if he concludes that the entry of those aliens “would be detrimental to the interests of the United States”.

Trump used that power both often and effectively, and when he used it to deny entry to certain aliens from countries that issued insecure documents, had interests hostile to the United States, or were hotbeds of terrorism, that action was challenged in court.

That case, Trump v. Hawaii, made its way to the Supreme Court, and in upholding that executive action, the justices concluded that section 212(f):

exudes deference to the President in every clause. It entrusts to the President the decisions whether and when to suspend entry (“whenever he finds that the entry” of aliens “would be detrimental” to the national interest); whose entry to suspend (“all aliens or any class of aliens”); for how long (“for such period as he shall deem necessary”); and on what conditions (“any restrictions he may deem to be appropriate”). It is therefore unsurprising that we have previously observed that [section 212(f) of the INA] vests the President with “ample power” to impose entry restrictions in addition to those elsewhere enumerated in the INA. [Internal brackets omitted.]

It’s quite the tool, but one that Obama largely ignored. Biden is in lockstep with his Democratic predecessor on that count.

Border Infrastructure. Obama and Trump both, however, utilized border infrastructure — roads, sensors, fencing, lights, and cameras, collectively (if unartfully) known as the “border wall system” — in a way Biden won’t.

As a senator, Obama — like then-Sen. Joe Biden (D-Del.) — voted in favour of the Secure Fence Act of 2006 (SFA). The SFA both authorized and mandated the construction of portions of the border wall system and cleared the way for DHS secretaries to create the infrastructure Border Patrol agents require to apprehend and stop illegal entrants and smugglers.

The lion’s share of that work was done under the George W. Bush administration, but still, the Obama administration completed more than 130 miles of that border wall system.

By contrast, one of Joe Biden’s first acts as president was to “pause” further construction on the system. He did so with little explanation, but likely the president’s inaction had something to do with “the wall” being a key Trump issue.

Biden argued on his 2020 campaign website that Trump’s “obsession with building a wall does nothing to address security challenges while costing taxpayers billions of dollars”. He continued: “Building a wall will do little to deter criminals and cartels seeking to exploit our borders.”

Keep in mind this is the same Joe Biden who, when running against Obama in 2008, was a major proponent of walls. Consistency’s rarely a virtue in politics, but perhaps Biden simply forgot about the value of infrastructure in the interim.

While Biden’s DHS has, albeit reluctantly, closed some gaps in the fence in certain border hotspots, those efforts are half-hearted at best.

Of course, fencing would do nothing to address the vast majority of illegal migrants, who flock to agents as soon as they cross, safe in the knowledge — as I’ll explain below — that they will almost certainly be released into the country.

But a wall would at least have slowed down the 860,000 aliens in FY 2023 who, according to estimates from the nonpartisan Congressional Budget Office, entered the United States illegally and successfully evaded agents (“got-aways”). The sensors would also have notified agents of those getaway entries, and the lights and roads would have made them a whole lot easier for agents to apprehend. Obama understood that; Biden didn’t.

Detention. Of course, the best tool in Biden’s toolbox for securing the border is the one he’s required — but refuses — to use: detention.

By law, DHS must detain every inadmissible “applicant for admission”, including illegal migrants, from the point CBP encounters them until those aliens are either admitted, granted asylum or some other form of immigration “relief”, or removed.

By my conservative estimates, Biden has instead released 88.5 per cent of the aliens CBP encountered at the Southwest border in the past three years, some 3.3 million individuals according to a recently passed (on a bipartisan basis) House resolution denouncing the president’s “open border” policies.

However, Biden was simply following Obama’s lead, right? Nope, and I am bringing the receipts.

Two states — Texas and Missouri — challenged the Biden administration’s termination of the Migrant Protection Protocols (MPP), better known as “Remain in Mexico”, in a case captioned Texas v. Biden. Lower courts issued orders directing the administration to begin returning illegal migrants across the border, which Biden’s DHS, did with the same zeal that it brought to fence construction.

The administration asked the Supreme Court to reverse those orders, and on June 30, 2022, the justices ruled that they could not force the administration to reimplement that purely discretionary program. The important part of that case for this analysis, however, is what Biden’s DOJ did 24 days before that order was issued.

The federal government argued, in part, that what Biden had been doing in releasing encountered aliens at the Southwest border instead of MPP wasn’t all that different from what his predecessors had done, and offered statistics to prove that point.

The problem was that the statistics DOJ offered weren’t correct, not intentionally, but because of some glitches in the compilation process. To remedy that error, Solicitor General Elizabeth Prelogar sent an “errata sheet” to the Court with the correct figures, dated June 6, 2022.

To appreciate how far off the original figures the administration offered were, here’s an excerpt from the sheet, with the strikeouts in the original:

From Fiscal Years 2013 to 2019, nearly three-quarters 43 percent of single adult and family unit members who were encountered at the [Southwest border] were either never placed in or released from detention during the pendency of their proceedings — more than 1.1 million almost 750,000 (41 21 percent) were never booked into ICE detention, and nearly 900,000 more than 770,000 (33 22 percent) were booked in for a period of time but released prior to the conclusion of their removal proceedings.

Included in that sheet were the actual figures and percentages of aliens who were encountered at the Southwest border; and the number and percentages of those aliens who were continuously detained, detained and then released, or never detained, between FY 2013 and FY 2021.

Of course, Obama was president at the start of that reporting period in FY 2013 and would be until Trump was sworn in on January 20, 2017. Those figures are by fiscal year, not month, so I will focus on the four reporting years in Texas v. Biden that Obama was in charge, FY 2013 to FY 2016.

During those four years, CBP encountered just over 1.839 million illegal aliens at the Southwest border. Of those aliens CBP encountered between those years, more than 1.260 million (68.5 per cent) stayed in detention until their proceedings were completed; 329,335 (18 per cent) were booked out before their proceedings were completed; and 249,555 (13.6 per cent) were never detained.

In other words, Obama’s DHS detained more than two-thirds of the aliens CBP encountered at the Southwest border between FY 2013 and FY 2016 and released about 31.5 per cent of them. That’s a huge difference from the 11.5 per cent of encountered aliens that I have — again conservatively — estimated DHS under Biden has detained, as required by law.

That said, Obama was also operating under a huge impediment to detention that Biden didn’t face: erroneous Board of Immigration Appeals (BIA) and Ninth Circuit orders that misread the border detention provisions (in section 235(b) of the INA) and ordered immigration judges to give aliens encountered at the Southwest border bond hearings for release.

In its February 2018 opinion in Jennings v. Rodriguez, the Supreme Court rectified the circuit court’s error, and then-Attorney General Bill Barr followed suit and corrected the BIA in his April 2019 order in Matter of M-S-. Both Jennings and Matter of M-S- remain good law, and free Biden to detain border aliens. He just doesn’t want to.

Joe Biden has the same immigration powers and authorities that Barack Obama had (if not more), but unlike his old boss, Biden refuses to use them. Which is why the border was much more secure under Obama than it is under Biden. It’s also why illegal entrants from Venezuela, Nicaragua, Cuba, Haiti, and scores of other countries are arriving now and didn’t show up then. I have the receipts — courtesy of Biden’s DOJ — to show that President Obama secured the border and that President Biden won’t.

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