Migrants arrive at a temporary processing facility in Donna, Texas .

Migrants arrive at a temporary processing facility in Donna, Texas . Customs and Border Protection

Analysis: Realism About the Border Is in Short Supply

The U.S. shouldn’t turn children away. But as a legal matter, the country’s borders are not open.

Despite some claims on cable news that President Joe Biden was “caught off guard” or “completely unprepared,” his administration foresaw the growing number of unaccompanied child migrants at the southwestern border. I worked in Barack Obama’s White House during a similar surge in 2014. After the November election, I served on the Biden transition team, helping prepare the new administration for challenges like the present one. But predicting a problem is not the same thing as having the right tools at your disposal. As it tries to clean up the enormous mess that Donald Trump left behind, Biden’s two-month-old administration is hamstrung by immigration laws that haven’t been updated in years, by a shortage of resources necessary to process border crossers, and by unrealistic expectations among immigration opponents and immigrant advocates alike.

The fundamental questions of American immigration—who should be admitted legally, and who deserves protection when fleeing danger—are matters for Congress to answer. But the rules governing legal immigration into the United States haven’t been updated since the 1990s, when email was a new medium and Google didn’t yet exist. When migrants arrive at the U.S. border today, the executive branch’s job is to distinguish those who might qualify for protection under our asylum laws from economic migrants with no legal ability to stay.

[Adam Serwer: The real border crisis]

In practice, administering these laws is thankless work that presents an endless set of miserable, heart-wrenching choices. The Trump administration did not maintain enough shelter beds for children arriving at the border, so where to relocate children languishing in Border Patrol lockups? Building new shelters takes time, and facilities that can be established quickly will not meet the high standards of longer-term shelters. But the existing lockups are terrible places for children, so how good of a shelter is good enough when hundreds of children at the border are awaiting placement? Even when a family member agrees to take custody of a child, how rigorous should the process be to make sure that person is truly a relative and not a human trafficker? How to balance the need for swift family reunification with the need to make sure children are safe?

The current border infrastructure, including the buildings where the Border Patrol carries out its work, was designed for a time when the main challenge was individual adults coming from Mexico who were trying to evade U.S. authorities. The people approaching the border now are much different; they are families with children coming from Central America. A shockingly large number are unaccompanied children—that is, children who are traveling with smugglers or are utterly unsupervised. When I served in government, I met some unaccompanied children as young as 7. I will never fail to be shocked at those who would have the United States of America turn away a child who arrives alone; surely the past four years have not depleted our souls that much. But the Border Patrol has neither the training nor the facilities suitable for children.

The Trump administration tried to substitute a wall and flagrant brutality for competent management of migration trends that have been developing for more than a decade. Trump left tens of thousands of asylum applicants to languish in squalid camps in Mexico. The Biden administration, in contrast, is continuing to bar economic migrants while slowly letting asylum seekers enter to process their claims.

The political pressures are building. On the right, immigration restrictionists would have Biden refuse entry to migrant children—leaving them on their own and in great danger—to make a point about how tough the U.S. is. Trump and his followers presumed that enough brutality would scare would-be migrants away. It didn’t. His administration took migrant children from their parents, horrifying the world—while also failing to deter migration.

The Biden administration, even as it does the right thing by accepting and protecting unaccompanied migrant kids while their cases are processed, faces criticism from immigration advocates who project confidence that 100 percent of migrant families are fleeing danger and deserve asylum. As worthy of sympathy as these families are, we live under a system of laws that doesn’t provide for their needs unless they meet a high legal standard. As a matter of law, America’s borders are not open. Not everyone who comes is legally entitled to stay. Even under a pro-immigration president, officials will reject some border crossers outright, and remove some later if their asylum case ultimately fails. Officials will also deport people from the interior who are not authorized to be in the United States. Yet to my frustration, many of my friends in the immigrant-advocacy community will not help shape these decisions; most are unable or unwilling to name any category of migrant who should ever be returned.

[Juliette Kayyem: The border mess that Trump left behind]

Full disclosure: I worked as an immigration advocate for decades and, after joining the Obama administration, faced criticism for serving in a government that deported people in substantial numbers. I accepted the reality that, until Congress decides to change immigration laws long overdue for revision, officials will be legally required to enforce them. The issue is not whether to obey the law, but how. We spent years developing new approaches for enforcing the statutes on the books: Recent arrivals and people convicted of serious crimes would be prioritized for deportation, while we eased up on undocumented people who had lived peacefully in the United States for years. The result was far more humane than what had preceded it. Hard policy decisions are better made with input from people who care deeply about the lives at stake.

Oddly enough, the long-term policy choices confronting the nation are much easier than the operational ones the Biden administration faces now. The United States will never be able to address the refugee crisis in our backyard with the measures we take at the border. Biden is working to reestablish American refugee-processing capabilities in Central American countries so that those truly fleeing for their life can get to safety without having to rely on smugglers to bring them on the dangerous trip through Mexico. The ability to seek safety without journeying north, combined with faster asylum processing for those who have made the trip, will help those who have a legitimate claim get answers quickly and get on with their life. Those who have traveled but do not succeed with their asylum case should be returned—in as compassionate a manner as possible—to their country of origin.

What the government owes the American people—and the people arriving at the border—is a process that is fair, orderly, and humane, one that comports with our laws and our values. That might seem unlikely now, as Biden’s administration grapples with the mess left by his predecessor, but a better system is eminently achievable.

This article was originally published in The Atlantic. Sign up for their newsletter

X
This website uses cookies to enhance user experience and to analyze performance and traffic on our website. We also share information about your use of our site with our social media, advertising and analytics partners. Learn More / Do Not Sell My Personal Information
Accept Cookies
X
Cookie Preferences Cookie List

Do Not Sell My Personal Information

When you visit our website, we store cookies on your browser to collect information. The information collected might relate to you, your preferences or your device, and is mostly used to make the site work as you expect it to and to provide a more personalized web experience. However, you can choose not to allow certain types of cookies, which may impact your experience of the site and the services we are able to offer. Click on the different category headings to find out more and change our default settings according to your preference. You cannot opt-out of our First Party Strictly Necessary Cookies as they are deployed in order to ensure the proper functioning of our website (such as prompting the cookie banner and remembering your settings, to log into your account, to redirect you when you log out, etc.). For more information about the First and Third Party Cookies used please follow this link.

Allow All Cookies

Manage Consent Preferences

Strictly Necessary Cookies - Always Active

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data, Targeting & Social Media Cookies

Under the California Consumer Privacy Act, you have the right to opt-out of the sale of your personal information to third parties. These cookies collect information for analytics and to personalize your experience with targeted ads. You may exercise your right to opt out of the sale of personal information by using this toggle switch. If you opt out we will not be able to offer you personalised ads and will not hand over your personal information to any third parties. Additionally, you may contact our legal department for further clarification about your rights as a California consumer by using this Exercise My Rights link

If you have enabled privacy controls on your browser (such as a plugin), we have to take that as a valid request to opt-out. Therefore we would not be able to track your activity through the web. This may affect our ability to personalize ads according to your preferences.

Targeting cookies may be set through our site by our advertising partners. They may be used by those companies to build a profile of your interests and show you relevant adverts on other sites. They do not store directly personal information, but are based on uniquely identifying your browser and internet device. If you do not allow these cookies, you will experience less targeted advertising.

Social media cookies are set by a range of social media services that we have added to the site to enable you to share our content with your friends and networks. They are capable of tracking your browser across other sites and building up a profile of your interests. This may impact the content and messages you see on other websites you visit. If you do not allow these cookies you may not be able to use or see these sharing tools.

If you want to opt out of all of our lead reports and lists, please submit a privacy request at our Do Not Sell page.

Save Settings
Cookie Preferences Cookie List

Cookie List

A cookie is a small piece of data (text file) that a website – when visited by a user – asks your browser to store on your device in order to remember information about you, such as your language preference or login information. Those cookies are set by us and called first-party cookies. We also use third-party cookies – which are cookies from a domain different than the domain of the website you are visiting – for our advertising and marketing efforts. More specifically, we use cookies and other tracking technologies for the following purposes:

Strictly Necessary Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Functional Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Performance Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Social Media Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Targeting Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.