History shows immigration policy must be tailored to today’s issues
Given the humanitarian crises on our Texas border, addressing the fundamental causes will be difficult. The Trump administration, immigration restrictionists and many Republicans would have us believe illegal immigrants are flooding the country and that only “the wall” can save us. Some Democrats, in calling for shutting down Immigration and Customs Enforcement, are also going to extremes. What both sides have in common is an inability to see the broader perspective.
A wall would have no effect on asylum seekers at ports of entry. And abolishing ICE makes as much sense as doing away with police after alleged excesses. The problem is not with ICE, but with the administration’s zero-tolerance policy, a posture that backfired when political impulse met the limitations of extreme enforcement — including not enough detention space and too few judges to handle their suddenly massive caseload. Criminally prosecuting all who crossed the border without inspection resulted in children being taken from parents and federal courts overburdened with misdemeanor cases.
Missing from the current focus on family separation is that the United States is experiencing its lowest rate of illegal immigration since Richard Nixon was president. Until recently, the vast majority of individuals detained at the border were Mexican. The so-called Other Than Mexican classification was always small. Now the largest component of detained unauthorized OTM migrants come from three Central American countries — El Salvador, Guatemala and Honduras, also known as the Northern Triangle. Undocumented immigration from Mexico has fallen due, yes, billions being spent on border enforcement, but also because NAFTA has made Mexican jobs more plentiful, drug cartels have made border crossing more dangerous, and birthrates in Mexico are plummeting.
Unique problems with the three Central American countries call for responses tailored to each, such as the United States adopted to deal with displaced persons in the aftermaths of World War II, the 1956 Hungarian revolution, the Cuban revolution, as well as for Soviet Jews and other peoples in crisis. Extraordinary factors in El Salvador, Guatemala and Honduras pushed 10 percent of theses populations to flee to the United States, where most have now lived for more than a decade. Those conditions, the result in part of U.S.- and Soviet-supported proxy civil wars during the height of the Cold War, caused major displacement and violent repression by military regimes. At the end of those conflicts, warriors on both sides turned to crime, which helped rank El Salvador and Honduras first and second, respectively, for world highest murder rates, with Guatemala in not-too-distant eighth place.
So no matter how difficult the Trump administration makes life for new arrivals, they will continue to flee the far worse conditions at home. What the United States spends annually on immigration enforcement, most of which is
spent on the Southern border, plus funds allocated to building a wall is nearly as much as the combined gross domestic product of the Northern Triangle countries.
Rather than continuing to take the same approach as we have for past economic refugees, overwhelmingly from Mexico, common sense dictates that the United States enact a muscular new Marshall Plan focused on Northern Triangle countries to improve law enforcement, safety and their economies.
With the election of Andres Manual Lopez Obrador as president, Mexico will treat those fleeing dangers humanely and will not serve as an enforcement arm of the Trump Administration. But AMLO has already proposed a major Central American development plan to stem the flow of immigrants heading north.
Credible fear claims by Northern Triangle migrants continue to overwhelm our immigration courts, which are administered through the Department of Justice with cases being set as far out into the future as 2023. Democrats and Republicans, even U.S. Sen. Ted Cruz, Republican of Texas, have called for a significant increase in the number of immigration judges and trial attorneys. As long recognized, justice delayed is justice denied.
Recognizing that the vast majority of asylum applicants will not have legal representation, legislation that calls for funding more immigration judges and trial attorneys should mandate meaningful training on Northern Triangle conditions. It also should place a special ethical duty on the newly expanded DOJ immigration judges and trial attorneys to bring out all relevant facts for the asylum applicants in order that basic justice is done.
Significant increases in the number of immigration judges, who can give asylum seekers their day in court in a timely proceeding worthy of our justice system, as well as foreign aid to create safety and opportunity to keep families in their home countries, would be far more effective in dealing with current border issues. Far better than to spend further billions of dollars on holding facilities to keep individuals locked up limbo for months and even years. Foster is chairman of Foster LLP, past president of the American Immigration Lawyer Association and immigration policy adviser to President George W. Bush.