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The Biden administration launched a suite of new border enforcement measures at the start of this year, severely restricting access to asylum and harming refugees seeking to enter the United States at the southern border. The measures included an expansion of the Title 42 expulsion policy and increased rapid deportation processing, paired with a narrow parole program for certain nationalities. One of the most extreme enforcement measures the administration has proposed is an asylum ban rule, published February 23, 2023, which would make refugees arriving at the southern border completely ineligible for asylum if they do not seek asylum in countries of transit or utilize a phone-based app. The administration’s written justification for the proposed ban relies on the assumption that its new enforcement measures and limited parole programs have been successful in deterring irregular migration. While the administration claims that its “carrot and stick approach” was responsible for the decline in border encounters during the month of January, a closer examination of the data paints a different picture.

A deeper examination of the administration’s claims is vital at this moment, given the countless lives at risk if the proposed asylum ban is implemented. This commentary examines the administration’s presentation of border figures, raises questions regarding the administration’s claims, and urges a shift towards evidence-based policy solutions grounded in humanity and sound reasoning.

Mischaracterizing the fluctuation in border encounters

The recently proposed asylum ban rule includes a series of narrative policy justifications, including a claim that the number of Venezuelans “encountered at the [Southwest Border] fell drastically” following the announcement of the Venezuela parole process in October 2022, and claims that the recently announced enforcement measures for people from Cuba, Haiti, and Nicaragua are “deterring irregular migration” thus “yielding a decrease in encounter numbers.” Media outlets have repeated the administration’s line that the number of migrants from Cuba, Haiti, Nicaragua and Venezuela attempting to cross the U.S.-Mexico border declined sharply from December to January 2023.

However, the parole programs, combined with Title 42 expulsions, cannot reasonably be cited as deterring people from crossing the border outside ports of entry when considering the full picture.

First, it is misleading to claim that the decrease in border numbers the administration references is statistically correlated to the new enforcement and parole programs. The large drop in apprehensions between ports of entry from December 2022 to January 2023 included nationalities not included in the parole programs or targeted by the expanded use of Title 42; such as Ecuador, Colombia, and Peru. The drop in border encounter numbers occurred among demographics unaffected by the new programs, notably unaccompanied kids, which raises questions regarding other conflating factors impacting migration numbers.

Further, the administration’s narrative conflates overall changes in migration trends with a deterrent effect. The administration is comparing the number of irregular entries from December 2022 to January 2023, but a relatively smaller percentage of people from Venezuela, Nicaragua, Cuba and Haiti entered the United States overall in January 2023 as compared to November 2022. While it’s true that the number of Venezuelans entering between ports of entry decreased significantly since the announcement of the parole program in October 2022, overall southwest border encounters of Venezuelans held relatively steady, given the fact that more Venezuelans started coming through the ports of entry. Similarly, people from Haiti are simply not coming across the border (only 31 were taken into custody in December 2022) and since June 2022 have almost entirely been coming through ports of entry.

In sum, attributing the decrease in apprehension numbers to the administration’s new programs alone is inaccurate and misleading. The drop in apprehension numbers are due to myriad factors, which include: seasonal migration, CBP One issues, and the scope of the crackdown at the border. The data suggests that the impact of the new programs is minimal if non-existent when it comes to crossing numbers.

Migration numbers declined in part in January because the ability to seek asylum at the border declined. It is expected that cutting off the option for asylum access at a port of entry for people waiting in Mexico will lead to fewer people from those nationalities attempting to enter lawfully at that particular moment, knowing they will be turned away and found ineligible. It is also to be expected that many of these people, left with no other options, will ultimately choose to enter outside a port of entry unlawfully, and that the border patrol’s apprehension numbers do not count these individuals because they were not necessarily being arrested and/or had not yet endeavored to make the entry. It is also vital to remember that many of those turned away as part of the administration’s new enforcement crackdown will never be able to enter through one of the new alternate pathway programs.

Closing off access for many asylum seekers and refugees seeking to express fear and enter the U.S. along the southern border only forces them back to Mexico where they would face untenable dangerous conditions.

Shifting from the failed cycle of deterrence toward humane border solutions

The administration must move away from recycling broken deterrence measures based on faulty assumptions, and instead pursue sound policies grounded in logic and humanity. Any policy approach must consider larger migration trends and reasonable thinking that focuses resources on humane reception and processing at ports of entry. Shutting off access to asylum seekers and migrants seeking to enter lawfully only fuels irregular migration.

It is laudable that the administration is seeking alternative policy approaches as they are forced to end Title 42 expulsions, but implementing punitive programs at the border will only cause further pain and chaos. The Title 42 expulsion program for three years has authorized border patrol officers to turn migrants away at the border without any asylum screening, resulting in countless kidnappings, assaults, and deaths for those returned to vulnerable conditions in Mexico. This program has also led to a drastic increase in repeat border crossing attempts, conflating apprehension figures. Programs such as Title 42 fly in the face of the administration’s commitment to racial equity, as they disproportionately impact Black, Brown, and Indigenous asylum seekers. Repeating restrictive border policies and expelling people back into Mexico through other means will only perpetuate the same cycle of abuse.

The Biden administration must shift away from a border management approach that relies on administering punitive “consequences” to prevent future border crossing attempts. This approach lacks merit given the historic migration trends showing that attempts to prevent immigration through prosecutions and other punitive measures do not actually drive down migration numbers.

Protecting the rights of people arriving to the Southwest border is the logical method for ensuring that people seek entry at a port of entry rather than trying to enter unlawfully. The administration can do this by utilizing their authority to issue humanitarian parole, issuing notices to appear, and allowing people to pursue their asylum or other fear-based claim.

Funding and tightly coordinating reception and onward travel must also be embraced to bring order to the border. It is long overdue for the administration to take steps to address the humanitarian needs on the border, including: building a robust network for communications and logistics between the federal government, cities, and civil society; funding and supporting civil society; re-allocating resources away from detention and enforcement and toward processing; and creating non-custodial, humanitarian reception centers at the border.

Jesse Franzblau is a senior policy analyst at NIJC.