SO YOU WANT to come to America. Venezuela, your home country, is suffering under Nicolás Maduro’s violent kleptocracy. What to do? Good luck getting a green card: employers won’t bother sponsoring a low-skilled worker like you, and you have no immediate family in America to vouch for you. Your WhatsApp is filled with news of friends who have crossed America’s southern border. You decide to follow them and, after a hellish trip, make it to the Rio Grande. You could try to slip across undetected—about 600,000 “gotaways” managed it last year. Or you can tell the border agents who intercept you that you want asylum. Odds are that they will release you with a court date scheduled in several months’ time, kickstarting a process that may take years. Welcome to America.

In November 2023 nearly 250,000 migrants crossed the southern border. The surge—and the perception that America’s borders are open—is a giant political liability for President Joe Biden. Just 27% of Americans tell pollsters that they approve of his handling of the border. More than twice as many trust Donald Trump on the issue. The fact that surging migration over the southern border could cost Mr Biden the election in November has made the problem trickier to solve. Wrangling over a deal to fund Ukraine in exchange for tighter border security and asylum limits has dragged on for months. Although Senate leaders say an agreement is close, some Republicans—reportedly including Mr Trump—seem to want the border chaos to fester, to better beat Mr Biden over the head with it during the election campaign.

Several factors explain the surge: violence and instability around the globe; plentiful job openings in America; the accurate perception that Mr Biden is more welcoming than his predecessor; and cumbersome, limited pathways to come legally. An overwhelmed border apparatus also invites more crossings, notes David Bier of the Cato Institute, a think-tank. When people hear that they are unlikely to be detained and deported, more try their luck.

Decades of neglect and partisan rancour have crippled America’s immigration system and created a situation where immigrants view asylum-seeking as the surest way to get into the country, rather than a long-shot attempt. Congress last made meaningful reform to immigration law in 1990. Comprehensive, bipartisan reform has seemed close several times since, only to fall apart in the end. In 2006, 2007 and 2013 bipartisan Senate bills included a path to citizenship for undocumented immigrants, more visas for workers and stricter enforcement at the border. In recent years Democrats have largely been animated by the desire to protect daca recipients, immigrants who were brought to America as children, from deportation.

Mr Trump’s candidacy upended the politics of immigration. When he launched his campaign in 2015, the number of migrants apprehended nationwide was at its lowest level since 1971. That fact did not, of course, stop Mr Trump from declaring that migrants threatened the American way of life. (“They’re bringing drugs. They’re bringing crime. They’re rapists. And some, I assume, are good people.”) In 2019 irregular entries at the southern border jumped. Mr Trump saw detention as a means of deterrence and made some migrants with pending asylum claims wait in Mexico. At one time during his presidency nearly 57,000 people were detained. The surge was so great that even Mr Trump released a quarter of migrants into the country immediately with a notice to appear (NTA) in immigration court.

Borderline, personalities, disorder

Mr Biden reduced detentions—the number in custody today is around 38,000—and scrapped the requirement to remain in Mexico. He has tried less effective deterrents. His administration wants to steer migrants towards ports of entry where they arrive for appointments made via a smartphone app. Most are admitted with permission to stay for a year or two. By contrast people caught crossing illegally are presumed ineligible for asylum, with a few narrow exceptions, and quickly deported.

At least that is how it is supposed to work. In reality most migrants who cross illegally are still being released into the country, and irregular arrivals far exceed those at official crossings. Once on American soil a migrant can request asylum, which involves a screening with an asylum officer. Because of Mr Biden’s reluctance to pursue detention and an insufficient number of asylum officers, in November seven in ten were handed an NTA and sent on their way.

Last year the Biden administration also began granting parole to up to 30,000 Cubans, Haitians, Nicaraguans and Venezuelans each month, if applicants identified a financial sponsor in America. Again the goal was to make flows more orderly and decrease illegal arrivals. Permission to stay lasts two years but can be revoked at any time. Illegal crossings by Haitians, Nicaraguans and Cubans plummeted. But Venezuelans, who are less likely to have social ties to America, continue to enter illegally. “Most of the Venezuelans arriving now don’t have family, friends, relatives,” says Theresa Cardinal Brown, who served in the Department for Homeland Security in the Bush and Obama administrations.

Once across the border, migrants head to cities. Shelter systems in New York City, Chicago and Denver are overwhelmed and their mayors want Mr Biden’s help. This is partly the doing of Greg Abbott, the Republican governor of Texas, who is busing migrants to Democratic-run cities. But big cities are also natural magnets for migrants.

With an NTA in hand, new arrivals enter the court system, where the backlog is growing faster than judges can keep up. Cases in immigration court surpassed 3m in November. It takes more than four years on average just to get an initial asylum hearing. Doubling the number of judges would clear the backlog—but only by 2032, according to an estimate from the Congressional Research Service.

Half of asylum cases are denied, and decisions are inconsistent. One judge in Houston denied 95% of her asylum cases last year; another in San Francisco denied just 1% of hers. But the immense wait, low chance of detention and the prospect of work in America encourage migrants with a weak claim to cross the border. Prioritising the most recent arrivals’ cases would reduce this incentive, notes Stephen Yale-Loehr of Cornell Law School. A long journey seems less worth it if the reward is deportation rather than an NTA.

The looming election, Mr Trump’s perceived strength on border issues and Mr Biden’s desire to arm Ukraine mean that the president wants to make a deal. His openness to tougher border enforcement is also no doubt fuelled by Americans’ rightward turn on immigration. Polling from YouGov suggests that more Americans favour building a southern border wall than don’t. Even 32% of Democrats now say they support the idea, up from 20% in 2022.

Whether the House and the Senate can agree on reform is questionable. A deal may include funding for more Border Patrol agents, the ability to shut down migrant intake if encounters reach a certain level, a higher bar for migrants to pass their interview—so that they are not released into the country unless they are likely to actually receive asylum—and limits on parole. Any changes to asylum rules will almost certainly be challenged in the courts.

But House Republicans have waffled, often insisting that they would accept nothing other than HR2, a hardline immigration bill passed along party lines last year that would be dead on arrival in the Senate. On the left, progressives do not want to tighten access to asylum. Both groups should beware. A new poll from The Economist and YouGov suggests that a plurality of Americans want Congress to pass a bill that both funds Ukraine and restricts asylum. The politicians should not ignore their voters. ■

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