Mar 2, 2023

Biden's new immigration rule.

Biden's new immigration rule.
Photo by Greg Bulla / Unsplash

Plus, a question on the unemployment rate.

I’m Isaac Saul, and this is Tangle: an independent, nonpartisan, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.”

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Today's read: 13 minutes.

We're covering Biden's new plan to slow illegal immigration and what it might actually do. Plus, a question about how unemployment rates are calculated.

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In tomorrow's subscribers-only Friday edition, we are going to be publishing a moving essay from a student who recently fled China. To protect their identity we'll be keeping the writer anonymous, but I am honored to publish the piece, which has been weeks in the making.

Quick hits.

  1. Secretary of State Antony Blinken had a surprise meeting with his Russian counterpart Sergey Lavrov on the sidelines of a G-20 ministers summit in India. It was the first high-level meeting between Russia and the U.S. in months. (The meeting)
  2. The Senate voted 50-46 to overturn a Biden administration rule that allows retirement fund managers to consider environmental impacts when picking investments. It could be the first veto of his presidency. (The vote)
  3. At least 43 people were killed and more than 80 injured in northern Greece when a passenger train collided with an oncoming freight train. (The crash)
  4. The U.S. intelligence community released a new assessment finding that it was unlikely a foreign adversary is behind the thousands of cases of so-called "Havana Syndrome." (The walkback)
  5. Norfolk Southern's CEO has agreed to appear before a Senate committee in a March 9 hearing on the trail derailment in East Palestine, Ohio. (The testimony)

Today's topic.

Biden's new immigration rule. Last week, the Biden administration announced a new temporary rule that will penalize asylum seekers who cross the border illegally or fail to apply for asylum in the countries they traverse before arriving in the U.S., while also opening doors for increased legal entry through a government-created mobile app.

Under international law, migrants who are fleeing persecution can request asylum at the U.S. border no matter how they arrive here. But the new rule, which may take effect as soon as May and is designed to expire after two years, would presume asylum ineligibility for anyone who enters the country illegally. This assumption would allow the government to deport border crossers upon arrival unless they showed they were denied safe refuge in Mexico or another country they traveled through before reaching the U.S..

The rule will undergo a 30-day public comment period before going into effect in early May. It's designed to fill the gap of Title 42, a pandemic-era restriction that allowed the immediate deportation of migrants under a public health emergency. Title 42 will expire this spring after Biden announced an end to the national emergency for Covid-19. Many immigration officials expect a surge of migrants when that order expires.

In the last few months, we've covered Biden's plans to limit the influx of asylum seekers from Cuba, Haiti, Nicaragua and Venezuela. His administration introduced a new rule in January that allows for 30,000 people per month from these four nations combined to immigrate legally over the next two years, but migrants who arrive without first asking for asylum in the countries they travel through will be denied asylum and deported. The government will offer those 30,000 migrants the ability to work legally, but they must first pass background checks, have eligible sponsors in the U.S., and apply for asylum through a mobile app.

In the weeks after announcing those changes, illegal crossings by migrants from those four countries dropped 97%. The latest proposed rule, which is similar to policies enacted by former President Donald Trump, will apply some of the same restrictions and processes to all asylum seekers.

Despite keeping Title 42 — the Trump-era health law that allows the U.S. to quickly expel migrants — in place, there have still been record numbers of migrants crossing the U.S.-Mexico border during Biden's term. There were over 2.38 million encounters in the fiscal year that ended September 30, the first time that number topped two million. There were also an estimated 1.2 million unauthorized migrants who were detected entering illegally but evaded border agents, known colloquially as “got-aways.” Some 700,000 migrants and asylum seekers have also been permitted entry into the U.S. on various forms of “parole” during Biden’s presidency, which typically include legal stays with an expiration date. Border facilities in Texas, Arizona and Southern California have regularly been over capacity.

Over the last decade, American officials have been trying to process a rising number of migrants who arrive at the border seeking asylum. Those migrants have routinely been given a court appointment and released into the U.S. interior. The Department of Justice says about 75% of migrants show up for their court hearings. Other studies have put the number at 83%, or even as high as 99%. While most attend their hearings, others never finish the application process after their release or never show up, and a backlog of 1.5 million cases in immigration courts often leaves migrants following the process in limbo for years.

Today, we're going to take a look at some reactions to Biden’s immigration plans, with commentary from the left and right. Then, my take.

What the left is saying.

  • The left is split on the plan, with some angrily comparing Biden to Trump and others arguing the plan might work.
  • Some contend Biden is recreating Trump policies and making the same mistakes he did.
  • Others say early signs show the rules are already working, and Biden should be given time to fine tune them.

In The Washington Post, Catherine Rampell asked why Biden was "resurrecting Trump policies."

"First, Biden dragged his feet in scrapping former president Donald Trump’s Title 42 border policy, which used covid-19 as a pretext for denying those arriving at the border the ability to apply for asylum, as is their right under both U.S. law and international treaty. Biden even expanded the use of Title 42 to apply to more migrant groups. Now, the Biden administration has concocted a different enforcement system that mashes up elements of many other ugly Trump policies Biden previously said he opposed... This mirrors Trump’s pre-covid 'asylum transit ban,' which had been blocked multiple times by federal courts for violating U.S. law. Wary of another court challenge, Biden officials are quick to point out that their rule, unlike Trump’s, at least offers some migrants the ability to apply for asylum under some circumstances.

"But these exceptions are limited and often extremely convoluted. For example, a migrant can still apply for asylum if they’re facing an 'acute' medical emergency, or if they use a new U.S.-government-created smartphone app to schedule an appointment at a port of entry," she wrote. "This supposedly orderly system often doesn’t work, though. WiFi is not exactly readily available in the desert. Plus this new app, as my Post colleague Nick Miroff has painstakingly documented, is glitchy, malfunctions for users with darker skin and offers very few appointments."

The Bloomberg editorial board said Biden's immigration reforms "deserve a chance to work."

"After years of chaos at the US’s southern border, the government says that illegal crossings have fallen more than 40% in recent months," the board wrote. "Since late last year, the administration has employed a carrot-and-stick strategy to contain the surge of migrants attempting to enter the country. It launched a program for migrants from Venezuela, Cuba, Nicaragua and Haiti, allowing as many as 30,000 a month to apply for temporary visas before reaching the border. Under the program, known as humanitarian parole, applicants who have a sponsor, pass background checks and meet other requirements can work in the US for two years while their asylum claims are adjudicated. Border crossers who attempt to circumvent the process are expelled to Mexico, which had previously refused to accept deportees from the four nations covered by the program.

"Early results have been promising. Between December and January, Customs and Border Protection encounters between ports of entry dropped from 221,675 to 128,410 — the lowest figure in two years — with evidence of continued declines in February," the board said. "Those numbers may well fall even further, due to a new rule announced last week that denies migrants the ability to request asylum without first applying in a country they pass through on the way to the US. Set to take effect in May, the rule adds to Title 42 — the policy used by the government to turn away some asylum seekers during the pandemic — by imposing criminal penalties for illegal reentry once initial admission has been denied... While it’s too soon to declare the border secure, the administration deserves credit for taking steps to correct past failures."

In Newsweek, Raul A. Reyes said Biden was making "the same shameful mistakes" that Trump did on immigration.

"A throwback to the Trump era, it's legally suspect, logistically unsound, and morally indefensible," Reyes wrote. "And it will likely increase the suffering of migrants, while doing little to address the problems of our dysfunctional immigration system. For starters, this new policy violates existing law. Under Trump, a similar policy was dubbed the 'transit ban' and was repeatedly struck down in the courts because asylum requires physical presence in the U.S., and migrants have the statutory right to apply for it 'whether or not at a designated port of arrival.'

"Moreover, asylum restrictions run counter to U.S. treaty obligations," he said. "The U.N. High Commission on Refugees has condemned attempts to impose limits on asylum. In fact, when the administration announced its immigration plans in January, the U.N. Human Rights Chief warned that they appeared to violate international agreements, noting that, 'The right to seek asylum is a human right, no matter a person's origin.... nor how they arrived at an international border.' The Biden administration is nonetheless encouraging asylum-seekers to apply for protection while still in their home countries, rather than doing so after arriving at the border. But this may not be an option for those who are fleeing persecution, especially as it requires having a U.S. sponsor already lined up."

What the right is saying.

  • Many on the right say the plan isn't actually going to reduce illegal immigration.
  • Some call it a "shell game," saying Biden is opening previously closed doors for immigrants and pretending it’s a crackdown.
  • Others point to the broad exceptions to the rule and compare it to Trump's policies, which they say brought more order.

In The New York Post, Mark Krikorian described Biden's "bizarro" world on the border that just waves in more illegal migrants.

"The latest example of this is a new proposed regulation on asylum. It is being sold as a way to bar border-jumping migrants from claiming asylum here if they passed through other countries where they could have applied first," Krikorian wrote. "This would, in theory, apply to every person crossing the southern border illegally — Mexico, at least, has a well-developed asylum system and even features a video on its refugee agency’s website on how to apply... But when you actually look at the details of what the Biden administration is proposing, you see it’s just another Bizarro World attempt at reclassifying illegal immigration as 'legal.'...The 'ban' won’t apply to illegal immigrants who bring children with them.

"It won’t apply to anyone who schedules an appointment at the US border through the CBP One app (which is like the OpenTable reservations app, but for people whom the government has no legal right to let into the United States). And you don’t even have to actually schedule an appointment with CPB One if there is a language or technical barrier that’s a 'severe obstacle' to using it... So instead of reducing the flow of people into the United States who aren’t supposed to be here, the administration itself intends the rule to be a means of, in The Washington Post’s words, 'opening more avenues for vulnerable migrants, not turning them away.' This is a purely political measure, designed to dupe the rubes into thinking that Biden has 'moderated' his position on immigration when, in fact, he is still pursuing the same lawless policies."

In The Daily Signal, Lora Ries called it a "gimmick atop a shell game."

"The rule would create a rebuttable presumption that an illegal alien is ineligible for asylum in the U.S. if they traveled through a third country unless one of several exceptions apply: DHS gave the alien approval to travel to the U.S. to seek parole through a DHS-approved parole process; the alien presented at a port of entry after using the CBP mobile app to schedule their port appointment, or demonstrate that it was not possible to access the mobile app because the alien does not have a mobile phone, the CBP app was not functioning properly, or the alien is illiterate; the alien is an unaccompanied minor; or the alien sought asylum or other protection in a country through which the alien traveled and received a final decision denying the application.

"In addition to those broad exceptions, an illegal alien would also rebut the asylum-ineligibility presumption if the alien or family member has an acute medical emergency, faced an imminent and extreme threat to life or safety, is a victim of a severe form of trafficking in persons, [or] has 'other exceptionally compelling circumstances' that convince an asylum officer," she wrote. "Over the decades, exceptions in immigration law have been expanded and abused to overcome their underlying rules, but this proposed rule starts with the exceptions swallowing the rule whole."

In The Daily Caller, former Acting United States Secretary of Homeland Security Chad Wolf said Americans should read the fine print, because the rule is not like Trump's.

"Unlike the Trump era rule, the proposed rule uses the 'rebuttable presumption against asylum eligibility' standard for illegal aliens apprehended at the border, which is not a true bar to claiming asylum," Wolf said. "Although this new standard may appear more strict than the current practice, it is a watered-down policy compared to the Trump administration’s rule, which only allowed aliens who fell within the narrow exceptions to make an asylum claim. Fewer than 15% of illegal aliens apprehended at the border qualify for asylum, and obtaining humanitarian relief is not the end goal for the vast majority of these illegal aliens... For example, it will have no impact on the 30,000 illegal aliens per month from Venezuela, Cuba, Haiti and Nicaragua who the Department of Homeland Security (DHS) is going to parole into the country unlawfully.

"This means that 360,000 illegal aliens will be allowed into American communities each year unless the federal courts block this abuse of the narrow parole authority," he wrote. "Also immune from the rule are the tens of thousands of illegal aliens the administration will waive through the ports of entry if they schedule an 'appointment' through the Customs and Border Protection One app. But those are not the only exceptions. The rule also exempts aliens who claim the CBP One app was 'not possible to access or use.' This vague standard is rife for exploitation and will no doubt be badly abused... And lastly, the rule fully exempts unaccompanied alien children and family units, including in situations where the family members are proven ineligible for asylum. That’s at least 700,000 aliens per year."

My take.

Reminder: "My take" is a section where I give myself space to share my own personal opinion. If you have feedback, criticism, or compliments, don't unsubscribe. You can reply to this email and write in. If you're a subscriber, you can also leave a comment.

  • Whether the plan works or not should be based solely on results.
  • So far, we can see it reducing illegal crossings at the southern border.
  • There are a lot of unanswered questions about what will happen to the migrants and our legal immigration systems.

Whenever both the left and right are pissed off about a controversial and complicated proposal, it's hard to tell whether the plan is really fair or really that bad.

In this case, I'll concede at the top that we still don't know. I don't know how we could. The latest rule hasn't been implemented yet and its validity will be based entirely on the results. For me, a "win" would be to see a reduction in southwestern land encounters, a more orderly system for adjudicating asylum claims, and more readily available legal pathways for migrants to come here and work temporarily.

So far, the Biden administration's plan announced in January appears to be accomplishing the first goal. Encounters at the southwest border are way down. Biden is right to view this as a good thing on its own. Regardless of the total number of immigrants we’re welcoming into the country, border surges that overwhelm our system result in many thousands of people getting stuck in difficult conditions in our detention facilities, living illegally in the U.S., and/or risking their lives while attempting to avoid border officials.

So, when crossings go down, we're better able to handle migrants, which creates a more orderly and much safer system.

You can see the steep drop (the black line) from Customs and Border Patrol (CBP) on all nationwide encounters for 2023, after Biden introduced his new rule for migrants from Cuba, Haiti, Nicaragua and Venezuela:

A table from CBP
A table from CBP

It is even steeper when you look at just the southwest border:

A table from CBP
A table from CBP

But this data only tells one part of the story. As Ries noted, the "shell game" is to try to understand where the migrants end up. It’s possible that they aren’t coming in at all, but many conservatives worry that Biden is essentially creating a new pathway to "legal" entry that would have been illegal just a few months ago, and accuse him of conning immigration restrictionists into thinking he's cracking down. Ries claimed in her piece that inadmissible migrants at ports of entries are up, and while this was true for the end of 2022, it looks like in January (after Biden’s first rule started) they actually went down. This would imply there are not just fewer migrants crossing by land, but at ports of entry, too.

Of course, limiting the number of people arriving at our border is not the only measure of success. On the contrary, we should be striving for a system that both minimizes harm and maximizes orderly entry. I will take another opportunity here to trumpet my longstanding solution that I believe accomplishes both goals, which is to increase the number of judges and lawyers on the border who can properly adjudicate the millions of new annual immigration cases (and clear the 1.5 million case backlog).

One direct result of limiting ways people can migrate here is that many genuinely fleeing persecution will get stuck in their home countries, confined to the persecution or death our asylum laws are supposed to prevent. Perhaps these rules will force Mexico and other safe haven countries between here and Central or South America to take in more migrants, but we still don't know where many will end up. Because so many cases are delayed or never happen, we also can’t be sure about how many people are genuinely fleeing persecution by the letter of asylum laws vs. coming here for economic opportunity.

Still, Biden's recent rule changes at least look like a step in the right direction for folks like me. One way to limit illegal border crossings and waves of migrants is to deter them, either by making coming here unappealing or by helping improve conditions in their home country. Another way is to create more appealing avenues for legal immigration. Biden is attempting to do both. It's clear the first part is working — border encounters have cratered since the first set of rules was announced. The data there is incontrovertible, and there is good reason to think this latest rule will keep that trend going even after Title 42 expires.

The second part is still up in the air. How many new migrants will find a way here through the other avenues he's opened? Will this make it safer or more dangerous for them? How often will broad exceptions be used? All of these questions are yet to be answered.

I also love the idea of leaning into technological advances like a mobile app to keep better track of people attempting to cross the border. The CBP One app allows migrants to schedule appointments with immigrant officials and upload personal information. But it’s clearly struggling. Can the government make the app more functional and accessible?

One attorney for an asylum seeker who criticized the plan pointed to the absurdity of using CBP One to get a client into the country.

“The biggest headache is that there are too few spots, so people are trying every morning to enter the app,” she said. “It’s like trying to get tickets for a Taylor Swift concert, only it’s not a concert, and you’re trying to save your family’s life.”

Other voices have said the process creates more danger. I was pleasantly surprised to see the Fox News opinion page, which typically has an immigration restrictionist slant, publish an opinion piece from a gay immigrant who said the new rules threaten other migrants like him who are fleeing persecution.

Estuardo Cifuentes wrote that after kissing his boyfriend in public, police in Guatemala "detained and beat me — and then, after I reported the officers responsible, threatened me and stalked me. Their threats forced me to flee." He's been in the U.S. for three years, married his boyfriend, works for a legal organization in Texas and is still working through the asylum process. "None of this would have been possible, though, under new asylum rules proposed by President Joe Biden," he wrote.

He might be right. Balancing care for the Estuardo Cifuenteses of the world with the need to be able to keep track of who (and what) is coming into our country is the intricate challenge of immigration policy. Despite upset from both sides, the early signs from these new rules show the number of illegal crossings falling. The rest is still up for debate.

Your questions, answered.

Q: How can the unemployment rate be so low while we are also experiencing a labor shortage, and so many companies are struggling to hire? It seems contradictory that we could be both desperate for more workers while also seeing such a high percentage of people employed. Are people just taking Covid benefits and staying home? But then wouldn't they count as unemployed?

— Ashley from Milwaukee, Wisconsin

Tangle: I can see why it seems contradictory, but when you understand how this data is collected, it makes a lot more sense. Contrary to popular belief, the unemployment rate is not calculated by counting the number of people collecting unemployment insurance. It's done more like the census. The Bureau of Labor Statistics (BLS) surveys a random sampling of 60,000 households and asks them questions about their employment status. It defines the "labor force" as people who have jobs or are actively looking for jobs. Someone who is unemployed but not looking for work is not counted in the unemployment rate (they are called discouraged workers). The unemployment rate is the percentage of unemployed people in the labor force; or, put differently, the percentage of people in this survey looking for work but who don't have it.

What's interesting about that methodology is that people not looking for work can simultaneously increase the labor shortage and lower the unemployment rate.

Consider this example: Say 100,000 people were surveyed in 2019. 10,000 of those were not looking for work. Of the 90,000 remaining in the labor force, 80,000 had jobs, and 10,000 were unemployed and looking for work. That would mean roughly 88.9% (80,000 out of 90,000) of the labor force was employed, for an unemployment rate of 11.1%.

Now take that same 100,000 people in 2023. This time, let’s say 25,000 people were not looking for work. Of the 75,000 remaining, say 70,000 had jobs. Now 93.3% of the workforce has a job, for an unemployment rate of 6.7%. So even though 10,000 fewer people actually have jobs, the unemployment rate has gone down while simultaneously there are 15,000 fewer people for employers to hire. Now you have a labor shortage and lower unemployment.

In many ways that's what we have now, paired with a surprisingly healthy job market. Covid-19 led to an unexpected wave of retirements, a drop in legal immigration, loss of workers due to Covid-19 deaths and illnesses, and tons of people reexamining their career choices by taking time off or transitioning to part-time work. All of this has impacted those numbers, while the economic growth has remained surprisingly strong. So, today, we have both a labor shortage and historically low unemployment.

Want to have a question answered in the newsletter? You can reply to this email (it goes straight to my inbox) or fill out this form.

Under the radar.

Doctors are sounding the alarm about rising rates of colorectal cancer among Americans 55 and younger. Research published Wednesday shows an uptick in colorectal cancer, one of the top causes of cancer death in the U.S. "This is a pretty remarkable outlier because incidence rates for most other cancers are either stable or going down," Arif Kamal, chief patient officer of the American Cancer Society, told Axios. Inactivity, poor diet, smoking, excess body weight and alcohol consumption are considered the lifestyle factors more closely tied to the disease. The U.S. has lowered the suggested age for screening from 50 to 45. Axios has the story.


  • 408,870. The number of migrants apprehended at the southwest border in Fiscal Year 2016.
  • 1.66 million. The number of migrants apprehended at the southwest border in Fiscal Year 2021.
  • 2.2 million. The number of migrants apprehended at the southwest border in Fiscal Year 2022.
  • 251,487. The number of migrants apprehended at the southwest border in December of 2022.
  • 156,274. The number of migrants apprehended at the southwest border in January of 2023.
  • 95%. The percent drop in illegal crossings among migrants from Venezuela, Cuba, Nicaragua and Haiti from December to January.

The extras.

Have a nice day.

Foo Fighters frontman Dave Grohl is known for his do-it-all style on stage, but he just demonstrated another gift for some of Los Angeles's homeless population: Grilling. Grohl showed up at Hope the Mission's Trebek Center to whip up brisket, ribs, pork butt and some BBQ smokers for over 450 homeless people. He spent 16 hours cooking, and toughed it out through a power outage at the center. After cleaning up the kitchen, Grohl was already asking when he could come back to cook again. The Los Angeles Times has the story.

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