I noticed two important pieces on immigration policy this week. The first was The Atlantic’s splashy piece on Trump-era family separation, which details how the policy came about and what its impacts here. The second was Mother Jones’ piece arguing that any differential treatment of immigrants of different nationalities is racist and America should strive to eliminate such policies. These pieces describe the poles of the US immigration debate: two completely irreconcilable worldviews, one in which the US must take the most Draconian measures imaginable to enforce legal limits on immigration and to deter even some migration that may be legally permissible, and another where the US effectively has open borders and no enforceable limits on immigration, because even, for instance, a program to help Ukrainian victims of the civil war or Cubans escaping a Communist dictatorship is fundamentally racist and illegitimate, because such policies treat one nationality different than another.
Both these views, I might add, are tremendously unpopular. Family separations polled terribly during the Trump administration, and the American public similarly rejects open borders in poll after poll. Between those extremes, Americans disagree about immigration, with some tending towards generous immigration policies that welcome refugees, reunite families, and allow lots of skilled workers into the country, and others tending towards strict immigration policies that do not close the border or shut off humanitarian immigration but impose strong restrictions on who may come here and who may not and expect immigration laws and border controls to be followed.
But while that political debate has raged for decades, the actual attempt to make immigration policy, i.e., to decide who comes into the country and who does not, has basically stopped. The last significant overhaul of the nation’s immigration laws occurred in the 1960’s, the last significant amnesty of undocumented immigrants occurred in the 1980’s, and even relatively mild changes such as the Dream Act (to assist undocumented immigrants brought here as children who had little choice in the matter) which enjoy widespread support cannot seem to pass Congress. Conservatives like to say “we no longer have a border”, which is false, but what is true is that we no longer really make immigration policy.
But you might ask, why is that so bad? We still, after all, let immigrants into the country, and deport criminals out of it. We still have asylum and refugee designations, and we still protect those who fall within the ambit of the UN Convention Against Torture. We still issue student and work visas.
Nonetheless, there’s at least 2 big problems caused by our lack of an immigration policy— (1) the laws no longer reflect an present policy determination of who to let into the country; and (2) in the absence of such lawmaking, the executive branch can, with little accountability, run immigration policy in an ideological manner never debated or approved by Congress.
Let’s start with point (1). Despite Mother Jones’ argument for open borders (an argument that I should mention I sympathize with, though not in the form the magazine makes it), you aren’t going to convince the American people that the country has no sovereign power at all to determine who can emigrate here. At the same time, the views of right wing ultra-restrictionists like Stephen Miller are ridiculous: not only is family separation not an appropriate or justified response to desperate people crossing the border for a better life, but we actually need immigrants and also have obligations to allow immigration into the country. Immigrants are crucial to any number of sectors of the economy, from software engineering and medicine on the upper end to farm work, childcare, and meatpacking on the working class end. And not only do we have a moral obligation to take refugees fleeing persecution, but we have treaty obligations to do so as well. And these obligations also impact our foreign policy: Eastern European countries, for instance, are bearing the brunt of the war in Ukraine, including taking most of the refugees- if America were to repudiate its commitment to take people in fleeing persecution, those countries might reconsider their commitments to the war in Ukraine.
So you have to actually sit down and do the work of deciding who gets to come in. And we frankly have not done that in a long, long time. As a result, we almost certainly do not let in enough “skilled” immigrants. (Since the discourse surrounding immigration has gotten so dicey with accusations of racism flying back and forth, I should probably note- “skilled” immigration is a term of art. It doesn’t mean that people who do more manual tasks that do not require significant training and education don’t have “skills”. It is simply a useful way of distinguishing between immigrants that work at different strata in the American economy.) Since the Immigration Act of 1965, the high tech sector has boomed to become one of the biggest sectors in the US economy. Health care has also boomed as more and more treatments are developed. Both these developments demand an increase in highly skilled workers: software engineers, scientists, doctors, nurses, etc.
We also need to deal with the reality of global warming, which is likely to create “climate refugees” in areas all over the world that become too hot or too inundated or too susceptible to the weather to support all the people living there now. As of now, our asylum laws focus on persecution due to group membership- an understandable response to the horrors of the 20th Century. But here in the 21st, the countries who benefitted from industrialization and greenhouse gases need to do something for the populations who will be displaced as a result of it.
On the other hand, there have been other developments in immigration since 1965 that may lean towards a more restrictionist approach. For instance, while the last administration was absolutely wrong to separate families, it’s worth noting that the issue that gave rise to family separation as well some of their other controversial policies such as “Safe Third Country” and “Remain in Mexico”, is an asylum system that is overrun with unmeritorious applications. Here’s how it works: asylum cases take a long time to adjudicate. The applicant and the government have to prepare, witnesses and documents need to be found, and space has to be found on crowded dockets. As a result, if there are a lot of asylum applicants who cross borders into the United States, the government has no choice but to “parole” them into the country. You can’t send them back, because if the asylum claim is legitimate, you might be sending a person to her death. You also can’t detain them all, because there are too many of them and they overflow detention facilities and sometimes have to wait for over a year for an asylum hearing. You have to just let them in.
And prospective immigrants know this. They are rational actors. This has become a way to get into the country. (Indeed, the same issue recurs in other developed democracies as well- the southern-facing countries in Western Europe especially get innundated with asylum applicants.) And a lot of them ultimately lose their asylum cases: again, this shouldn’t surprise anyone. Asylum is hard to prove, and it’s not that difficult to convince an agent of the US government that you at least have a credible fear of violence in a developing country, so there’s a gaping gap between the number of people who pass initial review and get to present an asylum claim, and the number of people who win their claim. But if you get past initial review, you get to stay.
Advocates for immigration often say that people have a right to make asylum applications, but I don’t find that talking point particularly convincing. You, for instance, formally have the right to bring a meritless breach of contract suit. Nobody will stop you or throw you in jail for it. But you will lose it, and you will have to pay the other side’s court costs and, if it is particularly frivolous, their attorney’s fees as well. The notion that you have a right to access the legal system presumes that you have some sort of legitimate argument to present to it. I don’t see how anyone has a right to cross the border to make a false asylum application.
So the bottom line is that we need to find ways to deter false asylum applications, and we need to find ways to do it that don’t involve Draconian attempts to punish asylum applicants via family separation or by making them stay in dangerous encampments on the Mexican side of the border.
I suspect that the only thing that will really work on this front is to create pathways for legal immigration, so as the calculation changes to “if I wait a couple of years, I can get in legally and work, whereas if I try to file a bogus asylum claim and lose, I will end up subject to deportation and at the back of the line for lawful crossing once I am deported”. And, again, we aren’t making that policy either. Right now, there is literally no way for a poor Mexican or Central American to get into the United States, other than on a humanitarian ground like asylum or if they have family members who are already legally here. Immigration advocacy groups actually like the family immigration system- after all, their constituents, Hispanics who are already here, would like to bring their family members to the United States. But it’s actually massively unfair to all the people not lucky enough to have relatives here, who might contribute just as much to our economy and culture if they were allowed to come.
So we should create a work visa program for Mexicans and Central Americans, with reasonable wait times and substantial benefits, while at the same time reducing family immigration slots somewhat. That will cause many people to stop bringing false asylum claims, because they figure they have a shot to get in legally if they wait. This in turn will then speed up the process of adjudicating valid asylum claims and may also allow us to not have to parole so many asylum applicants into the country while their cases are pending, creating an additional deterrent to false claims.
My point with all this is not to say these are the only answers- there are others- but to say that we need Congress to make the policy here. Only Congress can do things like change the number of family visas or narrow the criteria for their issuance, or create a visa program for climate refugees, or create a work visa for Mexicans and Central Americans. Because we don’t have an immigration policy anymore, we are stuck with the calls that were made in 1965.
And that brings me to my second point, which is that in the absence of such Congressional policymaking, immigration has been thrown into the ever expanding suite of powers of the President. Thanks to partisan polarization, we now have Democratic administrations who use regulation to create avenues for immigration that Congress never approved (such as DACA and DAPA), and the last Republican administration imposing limitations on asylum policy that would turn valid asylum applicants away in violation of express statutory commands and treaty commitments. We end up with a yo-yo, as administrations control the levers they can control. And again, this is done with no thought to the actual immigration needs of the country. Stephen Miller was simply trying to deport or keep out everyone he could, and the Biden policy shop is trying to let in every non-criminal non-citizen it can. You pull on the levers you have.
I realize this is a Quixotic task. Political polarization isn’t going anywhere, and the chances that any Congress could sit down and come to agreement on realistic immigration policies that balance the need for a secure border and the need to let in immigrants consistent with both our economic needs and humanitarian obligations, and that such an agreement could get past a Senate filibuster, is remote. But at some point this country is going to have to grow up- we can’t solve our most knotty policy problems through executive fiat. We have to come up with an actual immigration policy that meets the needs and conditions of the 21st Century.