‘Fixing’ the immigration crisis: The decisive point

The American Dream is a reflection of the promise of a nation devoted to equal opportunity for all to achieve their full potential. Americans should not be dismayed that this promise compels people to risk everything to become part of our national community. Indeed, that our nation glows worldwide with welcome for the “tired, poor, and huddled masses yearning to be free” is, as former President Reagan reminded us, the foundation to what this nation always has and must continue to be. 

The ongoing humanitarian crisis at the U.S.-Mexico border has again exposed our failure to implement a functional immigration system that reflects this national ethos of opportunity. The crisis is indeed real, but it is not one of immigrant influx; it is a crisis of policy. Democrats and Republicans alike must acknowledge this abject failure and act decisively to correct it.

According to data from Customs and Border Patrol, agents along the U.S.-Mexico border apprehended nearly 15,000 unaccompanied minors in January and February — a 160 percent increase of apprehensions from fiscal year 2020 to fiscal year 2021, a trend that shows no signs of decreasing. Thousands of children are left in jail-like facilities longer than the 72 hours permissible under the Flores settlement. 

The Biden administration was left with insufficient resources to humanely address this influx. Unsurprisingly, partisans are using this opportunity to criticize President Biden. Many Republicans are attributing blame directly to the new administration’s immigration policies, labeling it “Biden’s border crisis,” while Democrats are pointing to the underlying infrastructure incapable of maintaining an effective immigration system. But blaming President Biden ignores the true complexity of this problem and the responsibility of political leaders of both parties who seem determined to maintain willful blindness as to the urgency of essential legal reform.

Biden’s commitment to reverse his predecessor’s hard-line policies may have been perceived by migrants as an invitation to seek asylum. However, the dilemma common to both administrations is caused by the lack of effective legislative measures to address the border. Like the Trump administration, President Biden is left in the position of pushing the proverbial square peg of reality into the round hole of legal authorities. 

The unacceptable legal reality at this problem’s foundation is that our immigration system is ill-suited to address the influx of those seeking asylum or economic opportunity to make a better life. Consequently, the Border Control’s definition of “enforcement” prioritizes the apprehension of those crossing at the border in the name of deterrence. Meanwhile, the system offers no viable alternatives to those legitimately seeking to migrate.

Economic insecurity by itself is not a distinct push factor for the patterns of forced migration in this region. Internal conflicts, pervasive criminal activity, and bad governance in the Northern Triangle countries has created structured violence, militarization, economic instability and social fragmentation, which has been exacerbated by the coronavirus pandemic and hurricane devastation. For those who choose to embark on the treacherous journey to America, no “wall,” — actual or constructive — will offset the magnetic pull exerted by the opportunity of the American Dream.

The president is not without options. Individuals should be encouraged to seek asylum prior to migrating; the asylum request process should be streamlined; immigration agencies should be staffed to their pre-COVID capacities, if not expanded; and unaccompanied minors must be reunited with their families or placed in custody of an appropriate guardian as expeditiously as possible, and their status continually monitored.

What still remains imperative is a “big fix,” the kind politicians are elected to produce. Pretending a wall will halt immigration, or that “getting in line” and “don’t leave your town” are rational alternatives to the arduous journey from poverty and insecurity to prosperity is naïve. What is needed is a complete overhaul of immigration laws, one that will allow our nation to address the reality afflicting this region while respecting our historic commitment to providing genuine access to the opportunity and security from oppression that drew our ancestors to these shores. 

No single president can “fix” our immigration system without bipartisan congressional determination and, perhaps most importantly, political courage. That begins with a candid acknowledgment that quotas restricting lawful access to the nation not only contradict  America’s self-characterization as a beacon for human rights, but ignore the humanitarian necessity behind asylum. It is time for meaningful reform to a myriad of laws and policies, a commitment to regional capacity building, and a recognition that those seeking to contribute to our nation are not evil but simply seeking the type of better future our nation represents.

Geoffrey S. Corn is the Gary A. Kuiper Distinguished Professor of National Security Law at South Texas College of Law Houston, a retired U.S. Army lieutenant colonel, and a distinguished fellow with the Jewish Institute of National Security for America. Follow him on twitter @cornjag1.

Alyssa N. Shallenberger is the senior law fellow at Children at Risk in the Center to End the Trafficking and Exploitation of Children, and a doctoral merit fellow at the School of Criminal Justice and Criminology at Texas State University. Follow her on twitter @shallen_a.