The Border Crisis In Perspective

Apr 6th, 2024 | By | Category: Featured Issues, Politics & Current Events

The mission of Issues in Perspective is to provide thoughtful, historical and biblically-centered perspectives on current ethical and cultural issues.

There is one incontrovertible fact about America: We are a nation of immigrants.  It is important to remember this even about former president Trump:  His mother came from Tong, a remote Scottish settlement that was once Viking territory.  His grandfather came from Kallstadt, a Bavarian village.  In America, everyone is from somewhere else; even Native Americans crossed the Bering Strait millennia ago.

But the paramount immigration reality today is the southern border.  Every modern president has struggled with border control, not just President Biden.  In 2019, for example, President Trump faced immigration enforcement issues when there were caravans and 977,000 immigrant encounters with US immigration officials.  In 2023, that number was 2.5 million.  In the same year of 2019, Trump was forced to “catch and release” 327,000 migrants into the US, compared with 112,000 in 2016 and 77,000 in 2015 under President Obama.

Today, more than half of “border-crossers” are from countries beyond Mexico and the northern part of Central America.  The Economist reports that “Venezuelans make up the biggest part of this group.  But tens of thousands now fly into the Americas from Russia (43,000), India (42,000) and China (24,000) and then attempt a crossing.  Often it is impossible to return them.  China will not take back its nationals if their applications are rejected.”  Migration at this scale makes it extremely difficult for even a wealthy and generous nation “to humanely absorb asylum seekers, fosters horrific cartel activity (smuggling immigrants is a lucrative business) and poses obvious security risks, including drug trafficking.”

These figures also undermine claims that President Biden could solve the problem by simply shutting down the border.  As Kimberley A. Strassel of the Wall Street Journal reports, “The right to seek asylum is written into international and US law, while the border facilitates hundreds of billions of dollars annually in trade, including vital supply-chain materials.  Mr. Trump threatened several times while in office (and is again promising to do so), but there’s a reason he never fully closed it, allowing ‘essential’ travel and trade even during the pandemic.  A real shutdown would immediately be mired in legal battles, while sectors of the economy would take a massive hit.”  If elected, Trump, as Strassel argues, “will inherit a problem that could well be insoluble without the sort of enforcement tools Congress [was] debating earlier this year.”

David French is certainly correct when he observes that “Immigration is an almost impossibly complex subject, but when you peel back the layers of the onion, you get to a core truth: America’s broken asylum system is the most important legal and political factor in the immigration debate, and only Congress can fix it.  To understand what’s happening, think of migrants as being pulled to our borders by two giant magnets.

  • “The first magnet is simply the nation itself. The United States still offers vastly greater opportunities, more liberty, more safety and greater access to justice than the nations that migrants are fleeing. We want America to retain its prosperity, liberty and security. We should want it to be a beacon to the oppressed.”
  • “The second magnet, however, is an asylum system that is overwhelmed and too easy for bad-faith actors to exploit. As Julia Preston wrote in an outstanding and comprehensive report for Foreign Affairs: ‘After years of stalemate in Washington on immigration reform, the asylum bureaucracy has become its own de facto immigration system.” Worse, “It no longer serves people escaping danger that it was designed to protect; nor does it bring any order to the challenges of securing the border and integrating newcomers into the U.S. economy.’

Asylum law has its roots in “profound national and international shame.” One of the factors that enabled the Holocaust was the refusal of foreign governments to accept Jewish refugees. Part of the promise “never again” means actively sheltering people who are fleeing terrible persecution. So to comply with international humanitarian norms and laws, the United States accepts a set number of refugees per year—refugees come to the country through a separate process and aren’t as relevant to the border conversation—and it accepts claims for asylum.  To trigger the asylum process, a person need only set foot in the United States and assert to border officials that his life or freedom is under threat because of his ‘race, religion, nationality, membership in a particular social group or political opinion.’ “As my colleague Miriam Jordan vividly reported, the result is a system in which undocumented immigrants often want to be caught by Border Patrol so that they can immediately claim asylum.”  French makes the following important points about the asylum regulations:

  • “Federal law requires detaining asylum applicants while their applications are pending, but as the Supreme Court recently observed, Congress has never provided sufficient funds to build the necessary detention capacity. In other words, Congress has not provided the executive branch with the funds necessary to comply with the laws that Congress has passed.”
  • “Absent sufficient detention facilities, the government’s options narrow considerably. It can’t simply expel asylum seekers while their claims are pending, so hundreds of thousands are simply paroled into the interior of the country. The system is so backlogged that asylum seekers with pending claims can stay in the country for years. And even if they ultimately lose their claims, they’re typically given low priority for deportation if they haven’t broken the law.”
  • “In 2019 the Trump administration attempted to address this challenge by enacting what it called the Migrant Protection Protocols — also called the Remain in Mexico policy — which required asylum applicants who came from third countries to remain in Mexico while their asylum applications were pending.  Remain in Mexico suffered from two major deficiencies, however. The first is that it requires the participation and cooperation of the Mexican government, something that no administration can guarantee. The second is that it may be unlawful. Before Biden took office, the Court of Appeals for the Ninth Circuit struck down the Migrant Protection Protocols, holding that they violated federal immigration law, in part because they exposed asylum applicants to additional abuse and exploitation in Mexico, a practice called refoulement.”
  • “Biden repealed the policy shortly after he took office. The State of Texas sued the administration and obtained an injunction requiring him to keep the protocols in place, but on June 30, 2022, the Supreme Court ruled that Biden had the legal authority to end the program. The repeal of the Migrant Protection Protocols is at the heart of the claim that the present border crisis is exclusively Biden’s fault.”  And indeed, the Biden administration has acknowledged in litigation that there was a “significant decrease in border encounters” after Trump established his policy. This has led many Republicans to argue that there is no need for a legislative deal at all. Biden could simply reimpose the Migrant Protection Protocols and vastly improve the situation at the border.  But “Remain in Mexico” could never be a permanent solution. For starters, Mexico has already said it won’t agree to reinstate the policy. And that’s before we even address the question of whether the policy is legal. The Ninth Circuit said it violated federal law, and the Supreme Court hasn’t settled the dispute. It originally agreed to hear the government’s appeal of the Ninth Circuit’s order, but it dismissed the case as moot after the Biden administration’s repeal.”

Which brings us to the border security bill worked out and passed in the Senate with bipartisan support, but which the Speaker of the House refuses to bring to a vote in the House of Representatives.  What does this bill do?

  1. The bill rewrites the standard and process for granting asylum in the US.  The new bill raises the bar for the initial border screening for credible fear to a “reasonable possibility” of persecution.  “Migrants will have to show that they could not have moved elsewhere before seeking refuge in the US.”
  2. The bill also includes an expedited review process for asylum with a “stay-or-deport decision” within 90-180 days.  “No more catch and release without consequences.”
  3. The bill also reforms humanitarian parole.  Migrants will no longer be able to register using via an government app to gain free entry at a border crossing and an immediate work permit.
  4. The bill also includes an emergency provision mandating that the border be closed if the average showing up each day for a week is 5,000.  This will stop the current mess in which border crossing are overwhelmed.  If a shutdown is triggered, “all migrants will be deported until the number of arrives falls 25% and the border patrol has regained control.”

The Border Patrol union has endorsed the bill.  Oklahoma Senator James Lankford, a very conservative Republican, was the key negotiator for the bill.  Its provisions include long-term GOP priorities that could never have passed only a few months ago.  But, following the orders of former President Trump, the Republicans in the House are now abandoning what they claimed to want! This is a shameful, raw political act.  At the heart of our democracy is the art of compromise to get legislation passed. The current House leadership at the behest of Trump is abandoning their civic duty hoping to give Trump a leveraging issue to get elected.  As conservative columnist Kimberley Strassel argues, “Trump is doing neither himself nor his party any favors deep-sixing his best shot at fulfilling the core GOP promise of border security.”

See David French in the New York Times (1 February 2024); The Economist (27 January 2024), p. 5, 19-20; Kimberley A. Strassel in the Wall Street Journal (9 February 2024); and Wall Street Journal editorial (6 February 2024).

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