In October 2016, nearly 7,500 asylum seekers from Haiti and Cuba crossed the U.S.-Mexico border into the United States. Just 6 did so illegally. Not 6 percent: six total individuals, meaning that 99.9 percent of all crossings from these two countries happened legally through lawful ports of entry. In October 2021, nearly 7,000 crossed, and 99.7 percent did so illegally. Presidents Obama, Trump, and Biden all played a role in making this unbelievable (and tragic) turnaround possible: they created illegal immigration where none had existed, and the current administration could just as easily make it disappear.

Cuban and Haitian Legal Migration Through Mexico

For years, the United States had allowed immigrants from Cuba and Haiti to enter legally, so illegal immigration was unnecessary. Starting in the 1990s, the United States had a policy known as “wet foot, dry foot,” which authorized the return of Cubans only if they were caught at sea. If they made it to U.S. soil, they could obtain entry and, after 1 year, adjust to legal permanent residence through the Cuban Adjustment Act of 1966. Following the Castro regime’s liberalization of rules that had restricted travel out of Cuba in 2013, more Cubans began to travel to Mexico and then to the U.S. border to request asylum.

Under wet foot, dry foot, Customs and Border Protection (CBP) at U.S.-Mexico land crossing points granted Cubans “parole”—a discretionary legal status—and let them into the country legally. This process consisted of verifying the Cuban passport, fingerprinting, checking government databases, and issuing a parole document. The CBP field manual provided that Cuban asylum seekers “may be paroled directly from the port of entry” except for those who “pose a criminal or terrorist threat.” The procedure lasted 45 minutes to an hour with multiple Cubans being processed simultaneously. After being released, Cubans could catch a bus to their final destination with no need for further government involvement.

Haitians followed a similar path. After the 2010 earthquake, the Obama administration suspended removals of Haitians who had no criminal records. Since they could not be removed anyway, CBP at southwest ports of entry adopted a policy of generally granting parole to Haitian asylum seekers like they did for Cubans. About 70 percent were released there at the port, while most of the rest were released after being transferred to detention facilities after requesting asylum. Overall, this was a more time-intensive process than it was for Cubans, but the end result was similar. Haitians could come through Mexico, request asylum, and obtain release. As a result, Haitian illegal crossings fell over 90 percent from 2009 to 2012.

Parole also meant that both Cubans and Haitians could promptly apply for employment authorization documents to work legally. CBP’s policies before 2017 had effectively eliminated both illegal immigration and illegal employment among Cubans and Haitians.

Partially Closing Off Cuban and Haitian Legal Migration

The Department of Homeland Security (DHS) began to end this effective system of legal migration in late-2016. First, on September 22, 2016, it changed its policy and suddenly decided it should deport Haitians back. It started to require that CBP detain all Haitians at ports of entry and turn them over to Immigration and Customs Enforcement detention facilities only to be released if they could show a credible fear of persecution if returned to Haiti, the same standard applied to other asylum seekers.

About the same time, CBP began to “meter” or cap the number of Haitians processed at land ports with Mexico, which caused long lines to develop in Tijuana and other Mexican border cities. CBP developed a plan to expand its capacity to detain asylum seekers at ports, but it scrapped it in November 2016 (after Trump’s victory), and instead, it authorized all U.S.-Mexico border ports to cap asylum requests at whatever level they felt was appropriate. To implement “metering,” CBP officers were placed at the exact border line and physically blocked the entrance of those without documents. Asylum seekers were asked to come back later or placed on waiting lists in Mexico.

Initially, metering did not apply to Cubans. But in January 2017, the Obama administration rescinded wet foot, dry foot—making Cubans apply for asylum at ports of entry with Haitians and everyone else who might want to request asylum there. All types of migration dropped after Trump’s inauguration in 2017, so metering constituted only short delay. But migration resumed in 2018, and in response to a “caravan” of asylum seekers from Central America, DHS reinstated metering and intentionally lowered the caps on asylum seekers at ports of entry, purposefully creating a backlog of Cubans, Haitians, and other asylum seekers in Mexican border cities.

At the exact same time, DHS instituted the family separation policy for immigrant families crossing illegally, disingenuously telling asylum-seeking families crossing between ports of entry (mainly Central Americans) to apply at the very ports where it had just restricted crossings. This only led to further backlogs of asylum seekers from Cuba and Haiti. By mid-2019, nearly 20,000 asylum seekers had been “metered” and forced back into Mexico. Wait times grew to months, causing mass homelessness in cities that the United States claims are too dangerous to visit.

Then, in 2019, Trump began to roll out the Migrant Protection Protocols (MPP) known as “Remain in Mexico,” which added tens of thousands more people to the camps, worsening conditions there. Simultaneously, under U.S. pressure, Mexico canceled the “exit permits” that allowed Cubans and Haitians to travel through Mexico legally, and Mexico began detaining and deporting them in greater numbers. This made it riskier for Haitians and Cubans to wait in Mexico.

Cubans were also among those returned, and many metered asylum seekers in Mexico gave up, feeling that they had to go before Remain in Mexico was fully implemented or else be stuck in Mexico indefinitely, locked up by Mexican authorities, or killed in gang violence. One Cuban asylum seeker told the New Yorker that she “initially planned to wait her turn, but she changed her mind when she learned that MPP was being expanded to include Cubans.” Another Cuban followed the same path in 2019, saying “I would prefer to drown in the river than by a gunshot in Reynosa.” 

Haitians were not subject to Remain in Mexico, but under the Trump metering system, they were almost completely shut out, and in July 2019, the Trump administration issued a rule that barred anyone waiting in Mexico or traveling through Mexico from receiving asylum in the United States. This effectively banned Haitians from asylum, including anyone who had chosen to wait and not to cross illegally. This rule was applied intermittently based on court decisions until February 2021 when it was most recently blocked. Following the asylum ban and the evaporation of metering “slots” at ports of entry, Haitian migration flipped to more than 90 percent illegal. There was no reason to wait if asylum was unavailable anyway.

In February 2020, when the Remain in Mexico policy was temporarily found to be illegal, many waiting Cubans tried to cross at the El Paso port of entry, but CBP closed the port instead of processing them until the policy went back into effect. “I’ve been waiting in Juarez for ten months,” said one Cuban trying to cross. But his situation would soon worsen considerably.

Ending Haitian and Cuban Legal Migration

The next month, in March 2020, the legal gates closed completely. The Trump White House forced the Centers for Disease Control (CDC) to assert its authority under Title 42 of the U.S. Code to block the introduction of persons that it claimed were a threat to Americans’ health, which banned the admission of all asylum seekers over the objections of career, scientific staff. Consequently, the ports stopped accepting almost any asylum seekers whatsoever—including from Cuba and Haiti—a policy that remains in effect to this day. At the same time, hearings under MPP/​Remain in Mexico were cancelled indefinitely, stranding many Cubans on the other side of the border. This meant that when migration resumed after a pause during the early pandemic, virtually all of it was illegal.

One asylum seeker waiting under Remain in Mexico explained what was happening in October 2020. “People are getting more and more desperate,” he said. “What the U.S. has done has only blocked legal immigration. The people who wanted to go through the process and attend court hearings, a good portion of them have crossed illegally.” Following the cancellation of Remain in Mexico hearings and the implementation of Title 42, another asylum seeker who had waited for a year described crossing illegally after a migrant leader in the camp was murdered. “[It] reinforced what we already knew — Mexico is not safe for migrants,” he said.

Figure 1 shows the absolute number of legal and illegal crossings of Haitians and Cubans as well as the percentage entering legally. Before 2018, it was virtually unheard of for Border Patrol to see a Cuban or Haitian crossing the border illegally. Then, when metering was expanded, it become more common. After MPP in 2019, and Title 42 in 2020, it became the norm. So far in 2022, 99.7 percent of all crossings were illegal. Virtually the only people who made it in legally had to sneak into the port of entry. Tables A and B below show that this change occurred for both groups starting in 2019 and continuing through 2022.

Figure 2 shows the same data for monthly crossings. It illustrates that once the Trump administration made it clear that no one would seek asylum at legal ports of entry, illegal immigration overtook legal immigration. The Biden administration has made no attempt to return to the procedures in place before 2017 that successfully prevented illegal immigration from Cuba and Haiti. One result of this failure to process immigrants at ports of entry was the disorderly mass migration event that occurred in September 2021 (the big gray spike on the right side of graph). Haitian immigrants who had historically waited to cross legally amassed by the thousands at an illegal border encampment, waiting to be arrested so that they could claim asylum. 

Re-legalizing Cuban and Haitian Migration

In September 2021, federal court held that “metering” at ports of entry was illegal. Technically, the Biden administration complied by rescinding the official guidance in November 2021, but CBP continues to enforce the CDC’s Title 42 order at ports of entry barring asylum seekers supposedly based on concerns about COVID-19, so legal migration is still impossible. Under the CDC order, DHS has authority to exempt immigrants—including asylum seekers from Title 42—but has chosen not to do so.

Ideally, DHS would issue parole documents to Haitians and Cubans (and others) waiting in Mexico. It could use the U.S. embassy or consulates or the CBP Attaché Office in Mexico City, so that they could travel to and through the U.S. ports of entry legally without being subject to Title 42. DHS has already listed the reasons to grant humanitarian parole to any non-Mexican in Mexico in its rescission of the Remain in Mexico policy, detailing the harms that immigrants waiting in Mexico face. DHS has also specifically laid out the harms that Haitians would face if returned to Haiti in its Temporary Protected Status (TPS) designation for Haitians last year (which authorized temporary status to Haitians already in the United States). The Biden White House has also recognized the harms facing Cubans in Cuba and sanctioned Cuban officials for human rights abuses.

The government created illegal immigration among Cubans and Haitians by blocking their legal paths to enter. It has a duty to correct this mistake. It should immediately reopen parole and begin the orderly immigration process that was available to them prior to 2017. Once it has shown that this method can reduce illegal crossings, it should expand it to other nationalities. The government knows how it can end the border crisis. It must start now.