4 policy fixes to address the paradigm shift at the southern border

The Biden administration has asked Congress for $106 billion in supplemental funding for the current fiscal year for “national security priorities,” including Ukraine, Israel and the border. 

Notably, the administration is asking for as much money for border management as it is for Israel — $14 billion. The request represents what the administration believes are our country’s highest national security priorities. 

That border management has been included in this list of defense and foreign policy priorities paints in stark relief the crisis at our borders and the need for practical solutions to end that crisis. However, there has been a distinct lack of serious conversations among policy leaders and lawmakers on how to solve it. Money alone will not be enough. 

A group of visiting scholars at the Cornell Law School Immigration Law and Policy Program recently released a white paper outlining what we believe are three priority areas for immigration reform that have the potential to break through partisan deadlock. 

Along with proposals to address labor shortages and the status of Dreamers, much of the paper proposes solutions for the border. This recognizes both the central role that border security plays in the current political landscape and that this issue desperately needs realistic and bipartisan solutions.  

The paper notes the drastic changes that have overtaken the border in the last decade: the shift from Mexican migrants seeking work to migrants from around the world seeking asylum, the shift from a majority of arrestees being deported quickly to an overwhelming number of migrants released into the United States to pursue their claim in immigration courts, and the shift from Immigration and Customs Enforcement detaining migrants for court cases to mass releases of migrants directly from Border Patrol to shelters or on the streets of border towns. 

These shifts mark what we believe is a new paradigm at the border that our existing immigration laws, processes and infrastructure cannot solve. Instead, we propose the following policies to reform our current border and asylum systems:  

1. Make it a priority to go after smugglers and criminal cartels who are making billions of dollars from desperate migrants and encouraging illegal migration. These are not the small, unsophisticated “coyotes” of yesteryear. The transnational criminal organizations that control the drug trade in the hemisphere now see moving migrants as another line of business for their illegal enterprises. And just as they have done with smuggling drugs and money, these cartels are continually finding ways to take advantage of our inconsistent and changing border policies and processes to facilitate the arrival of large groups of migrants.    
2. Create alternatives for those seeking protection and allow for decisions long before migrants come to the border. Most migrants arriving at the border do not understand the U.S. immigration system or what it takes to enter legally (something the smugglers try to keep them from knowing). So, by reaching out to migrants before they journey to the border, we can help them understand whether asylum is realistic for them or if there are other legal ways for them to enter the United States. If we match this with an expansion of refugee processing in the region and create alternate legal paths for work or family reunification, we can take some pressure off the border.  
3. Reform the asylum system for border arrivals to return it to its rightful place as the last resort for those who need protection, not the first option for those seeking to immigrate. While some would like to see us just stop all asylum at the border, most Americans still believe we can and should offer protection to those who really need it. U.S. and international law also require us to do so. But the current situation is simply overwhelming our system. We can’t offer protection to those who need it or decide in a reasonably fast time frame that they don’t qualify and return them. We propose creating a separate and expedited asylum process for migrants who cross the border illegally between ports of entry while expanding and incentivizing processing at ports of entry. Combined with alternative legal paths such as expanded refugee processing and parole at centers in Latin America, these new incentives/disincentives could reduce the demand for smugglers and irregular migration to more manageable levels and get the Border Patrol back to its primary role of catching those trying to avoid capture. 
4. Create a new Office of Migration Policy. Finally, given the dysfunctional failure of coordination among the many federal agencies and departments involved in our immigration system that has exacerbated the problems at the border and made cohesive policy crafting and implementation next to impossible, we propose creating a new statutory Office of Migration Policy in the White House to oversee policy and operational coordination and budget requests for the government’s efforts to implement all parts of our immigration system. 

We understand that Congress and the White House are talking about some changes to the border as part of its funding package. But getting Congress to legislate on any immigration issue is an uphill battle. Still, political slogans and a reversion to past failed strategies will not solve our border security problems. We need new ideas. My coauthors and I hope the proposals in our white paper will prompt realistic solutions.  

Theresa Cardinal Brown is a distinguished visiting immigration scholar at Cornell Law School and a senior adviser at the Bipartisan Policy Center. The views expressed here are her own.