Rishi Oza


By Rishi P. Oza

With the 2024 presidential election closer than it may appear, myriad events continue to churn the current political landscape. Economic anxiety, stubbornly high inflation numbers, the war in Ukraine and the most recent violence between Israel and Palestine have given the current administration more than enough concerns about the political landscape of 2024. This makes no mention of the potential headwinds caused by the presumptive Republican nominee, former President Donald Trump, and his taste for pugilistic politics. However, the current immigration environment holds the potential for truly torpedoing Biden’s chance for re-election, threatening his message of political competence and leadership.

By any observable metric, the current situation at the nation’s southern border is a mess. Total border encounters have skyrocketed, rising from 1.95 million in 2021 to 2.7 million in 2022; 2023 has already registered 2.86 million encounters nationwide and CBP has yet to report statistics from September, which will likely push the year’s totals to exceed 3 million encounters. Simply stated, these numbers are unsustainable, which is reflected by the administration’s about-face on the construction of the southern border wall and reintroduction of deportations flights of Venezuelan citizens.

Local leaders, such as Mayor Eric Adams of New York City, Illinois Governor JB Pritzker and New York Governor Kathy Hochul have become vocal critics of the White House’s handling of the migrant crisis, with Mayor Adams claiming that New York City would be “destroyed” by the continued influx of migrants; Governor Pritzker urged that “[t]here is much more than can and must be done on a federal level to address a national humanitarian crisis…”, which can only be read as an indication that the federal government simply isn’t doing enough.

These criticisms play directly into the Republican argument and national concern that Biden is simply no longer up to the task of the presidency. The president’s advanced age, a topic of almost constant discussion, is already top-of-mind to potential voters, most of whom are dismayed by a potential Biden-Trump rematch. While Trump’s legal troubles and overall baggage make him an inherently limited candidate, Biden’s inability to project leadership on the vexing border issue is an undoubted weakness that has begun to eat into his fundamental support among Democrats.

The problems of the southern border have too often been portrayed as distant and abstract issues that only affect the local communities of southern states; while the bussing of migrants by border state governors has been roundly criticized as abhorrent and repugnant to American values, it has brought the dysfunctional border situation to Democratic-leaning doorsteps. While most migrants only remain in border communities for a limited time (studies show that many migrants often settle in larger urban areas anyways), the overwhelming of local services in urban areas has jolted the public consciousness and has created a tension between the desire to assist migrants fleeing poverty and violence and a local community’s ability to absorb waves of individuals.

While Biden hardly controls the specific drivers of migration in the Western Hemisphere, he has shown little appetite to deal with the issue head-on. Little political capital has been spent on seeking genuine immigration reform and the lengthy delays that have mired the issuance of decisions on work permits, green cards and other immigration benefits hardly connotes a sense of competence. Moreover, messaging from the White House remains muddled and incoherent. This may be intentional, as the administration likely has no good options on stemming the flow of migrants globally (while Central and South America remain the largest source of migrants, Africa and India have also shown spikes of new arrivals), but his lack of any coherent vision leaves him looking aloof.

The acuteness of the problem when displayed visually is hard to ignore. According to the Syracuse University’s TRAC system, an immigration data and records collection system, the Biden Administration is facing a crush of people coming to the US border. Recent data, which shows the total number of Notices to Appear or NTAs issued to newly arriving migrants at the US border, makes clear that the problem of illegal migration has exploded under Biden’s watch (note: an NTA is a document notifying an immigrant as to why they are subject to removal proceedings before the nation’s immigration courts).

The spike in total NTAs issued reflects the spike in individuals seeking entry into the United States, which is reflected in the Immigration Courts ongoing backlog.

Sadly, Immigration and Customs Enforcement has not released a year-end report since 2019 regarding removal operations, so no actual data can be matched to see what actual enforcement actions the Administration is undertaking. This lack of transparency reinforces the perception that border security is not a policy priority.

While the Biden Administration is charged with the enforcement of current immigration laws, the reform and changing of current laws lands squarely in the lap of members of Congress. A long-standing Supreme Court precedent makes clear that Congress has “plenary” (or absolute) authority to create and change laws pertaining to foreign nationals. Common public misperception is that the President can single-handedly fix the immigration system without Congressional input and while years of presidential actions regarding immigration, including the creation of DACA, granting of parole to Central and South American residents and recognition of countries for Temporary Protected Status (i.e. Ukraine, Haiti, etc.), but wholesale changes to the nation’s immigration laws require agreement between Republicans and Democrats on Capitol Hill, not just action by the occupant of the White House.

Nevertheless, with his overall approval numbers stuck in the low 40s and voters almost uniformly uninspired by his reelection bid, Biden can hardly afford to lose what should otherwise be solid support. This can only mean paying attention to portions of the immigration system that he can genuinely control. Although election season tends to focus a politician’s mind like no other time, the needs of the country demand leadership from both sides of the aisle that is less interested in just talking about a problem and more invested in actual problem-solving.

Rishi P Oza is Partner at Brown Immigration Law, a firm that focuses solely on immigration law; he practices in Durham. [email protected]