Bringing our immigration system back from the breaking point

Bringing our immigration system back from the breaking point
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After years of declines, apprehensions of undocumented immigrants at the U.S.-Mexico border are set for their largest year-on-year increase in history.

If the Department of Homeland Security’s internal forecasts are correct, Border Patrol agents may make 1 million apprehensions this year — almost triple the number that they made in 2016 and 2017.

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There is, in fact, a humanitarian crisis on the U.S. border with Mexico. How did this come about? More importantly, what can be done to address this crisis?

This massive surge in migration is driven almost entirely by families and children from Central America who now account for more than 60 percent of the people encountered by Border Patrol agents on the border.

This is unprecedented, and because families and children cannot be detained for more than 20 days, it has brought the U.S. immigration system to the breaking point.

As a result of this surge and a lack of available detention beds to house families, border officials are releasing families directly into the interior of the country.

The administration has also redeployed inspectors from U.S. ports of entry to help process families, leading to long wait times for legitimate travelers and trade at legal border crossings.

Instead of evading detection, these migrants are largely claiming asylum, which allows them to remain in the United States — and work — until their cases are heard. Because the immigration courts have a rapidly increasing backlog of more than 800,000 cases, it now takes an average of two years for a case to be heard. 

Families from Central America appear to believe that the prospect of being able to safely work and send their children to school in the United States while their asylum cases are being heard is better than staying in their home countries and worth the risks associated with the expensive and dangerous journey to the United States. 

Over the past 18 months, the administration has: 

Despite these actions, families and children from Central America have been arriving in increasing numbers even as the administration’s policies and rhetoric have become increasingly hardline. What is going on here?

One issue could be that most of the policies the administration has tried so far are not targeted to families and unaccompanied children.

For example, sending troops to the border and declaring an emergency to build additional barriers will help the Border Patrol identify and apprehend individuals seeking to avoid detection, but these families and children are actively seeking out agents, not trying to avoid them.

One potential reason for the surge could be the fact that, in the age of social media and social networks, migrants are increasingly aware — in real time — of what is happening on the border.

The administration’s tough rhetoric may actually be counterproductive absent any real changes to the asylum system. Families from Central America may believe that the president will — at some point — succeed in changing the system.

But they may well know through social networks, news reports and smugglers that so far there has been less change than advertised. This might create a perverse incentive for them to get to the border before it's too late. 

Addressing the current crisis at the border in a meaningful way may well require legislation. Creating a bipartisan consensus on this topic may be difficult given the current political climate, but Congress could consider the potential costs and benefits of the following steps:

1. Expanding the use of non-restrictive detention options for families. This could include large increases in the use of minimally invasive tools that can allow families to be released while ensuring that they can be located and notified about their court cases. 

It could also include creating statutory guidelines and expanding the capacity to detain families in non-restrictive facilities. These guidelines could ensure that facilities that handle families have humane conditions and feature age-appropriate protections and learning opportunities for all detainees. 

2. Ensuring that families have access to counsel. Individuals who have counsel are far more likely to show up for their immigration court cases than those who do not.

As part of any reform of the asylum system, Congress could consider whether this benefit outweighs the costs of requiring that all asylum seekers have access to qualified counsel.

3. Creating new processes to allow some of these families to apply for visas to come to the United States while they are still in their home countries.

If policymakers believe that these migratory flows are likely to continue, they may consider providing legal mechanisms for families from these countries to come the United States.

4. Adding capacity to the immigration court system. The current backlogs in these courts are the byproduct of a broken and under-resourced system.

Congress could closely review the entire system to identify the bottlenecks that have led to these record backlogs and increase the number of immigration judges who are qualified to hear asylum cases.

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Lastly, Congress could consider including substantial assistance for El Salvador, Guatemala and Honduras to address the root causes of the surge in those countries.

Engaging in nation-building is a difficult proposition, but America will likely continue to see desperate families make their way north if the rule of law and the economies in these countries do not improve.

Any such assistance could be conditioned on these countries implementing robust anti-corruption measures, including the creation of independent panels like the United Nations-led effort in Guatemala that brought charges against and the eventual expulsion of a former president and vice president by the government earlier this year.

The good news is that the United States has partners in the region who may be eager to participate in this kind of effort aimed at addressing the root causes of the crisis in Central America. The United States could take them up on it.  

Blas Nuñez-Neto is a senior policy researcher at the nonprofit, nonpartisan RAND Corporation.