‘Tough on immigrants’ is the new ‘tough on crime’ 

Democrats and Republicans don’t have much in common these days, but both parties are woefully wrong on immigration reform. Their competing responses to the crisis at the border represents a race to the bottom that will leave everyone worse off.  

In recent weeks, White House and Senate Democrats have pushed hard for what Joe Biden has called one of the nation’s “toughest” immigration bills, which would provide the president with emergency authority to close the southwest border if daily crossings exceed certain numbers. Not to be outdone, House Republicans hope to revive debate on their even tougher reforms, including continuing the construction of a border wall, increasing punishment for immigrants who overstay visas and making it harder for migrants to seek asylum.  

This bipartisan tough-on-immigration stance is eerily similar to the bipartisan tough-on-crime rhetoric that dominated the 1980s, 1990s and 2000s. For 30 years, Democrats and Republicans competed to see who could jail more people and lengthen more sentences. Neither had much deterrent effect; meanwhile, mass incarceration has caused untold harm to individuals, communities and families.  

We now walk a similarly dangerous line on immigration policy.  

Mass deportations don’t promote public safety, and targeting communities and restricting their rights does not make us safer. The terrible irony is that being tough on immigration — or for that matter, impeaching Department of Homeland Security Secretary Alejandro Mayorkas — won’t solve our border crisis. But House Republicans have threatened to block aid to Ukraine and to potentially shut down the U.S. government if the White House and Senate don’t cave to their demands.   

Instead of working on ways to close the border and restrict asylum seekers, the ironic solutions lay in giving immigrants more rights, not fewer.  

A good place to start rethinking effective immigration reform is legal representation. While there have been many calls to increase funding for additional immigration judges to ease backlogs, similar funding is sorely needed to ensure that immigrants can be represented by counsel.  

Currently, only 37 percent of immigrants attend court with a lawyer, yet studies show that non-detained immigrants with counsel attend 96 percent of their hearings. If Democrats and Republicans are so worried about letting immigrants into the country only for them to disappear, they should provide funding and training for immigration lawyers, to help ensure that clients make it into court. 

Proper representation also ensures that people don’t fall through the cracks. One startling study found that non-detained immigrants with lawyers had successful outcomes 74 percent of the time. Detained immigrants without lawyers prevailed only 3 percent of the time. What does that say about the legitimacy of our immigration system? Should people truly in need of asylum — those facing death or persecution in their home country — be turned away simply because they don’t have a lawyer?   

Providing more lawyers will require us to reimagine the legal infrastructure of immigration. In order to avoid the pitfalls in the criminal defense system, we need to ensure that funding, expertise and lawyers’ access to their clients are all considered to maximize the rights of immigrants to have their day in court and to comply with the outcomes. 

Immigration reform is fundamentally about building American identity. Democrats, Republicans and Americans of all stripes need a different ethos — one that recognizes immigrants’ humanity, dignity and legal rights, and that prioritizes America’s best ideals. 

Sheldon Evans is professor of law at Washington University in St. Louis. His scholarship focuses on the intersections of criminal sentencing, punishment theory and immigration policies.