Enforce the Border—Humanely

From Laura Bush to Rosalyn Carter, from elected representatives to past high government officials, outrage is the mood of the moment, perhaps more than at any time since the immediate aftermath of the 2016 election.

The Trump administration’s border policies and his dehumanizing rhetoric about immigrants have triggered this incandescent reaction. Concentration-camp comparisons have transited from Twitter—their usual home—to cable TV and the halls of Congress. CNN’s pollster reports that most Americans—67 percent of those surveyed—disapprove of family separation. Apart from a few cable-news talkers who earn their living from incitement, the administration’s usual defenders have gone AWOL. (Newt Gingrich, where are you?) The president himself has denied responsibility for his own policy, insisting he “hates” it—and that he is merely executing a law imposed on him by Democrats and the Bush administration. Those tasked with executing the policy are signaling their discomfort to the media.

The administration hopes that it is on the verge of a mighty legislative victory, in which it will at last compel Congress to act to regularize the border. But it looks now at least as likely that Trump’s nerve will snap before Congress can coalesce.

Donald Trump was elected in great part because of the crisis on the border in 2014 and 2015. In 2014, almost 70,000 unaccompanied minors and nearly 70,000 parents with children showed up on the U.S. southern border to claim asylum inside the United States. Almost all came from Central America. These border crossers gambled that they would be allowed to stay in the United States, and that gamble largely proved successful. In 2014, the United States deported just three children to their countries of origin for every 100 it apprehended. When Trump promised a wall on the border, this was the problem that the wall was supposed to resolve.

But there is no wall, there probably never will be, and even if it were started tomorrow, who knows when it would be finished?

The surge eased in 2016 and 2017, largely due to better cooperation with Mexico. The Trump administration has since alienated Mexico—a breakdown neatly symbolized by the famous Central American “refugee caravan,” which set out from southern Mexico with 1,200 migrants seeking asylum this spring. Mexican authorities allowed it to cross almost a dozen Mexican states before it finally arrived at the U.S. border at Tijuana at the end of April. The breakdown in the U.S.–Mexico relationship has opened the way to a renewed mass movement from Central America.

In the single month of May, 16,000 Central Americans traveling as family groups or as unaccompanied minors crossed the Mexican border into the United States, the biggest number since the summer-2014 border crisis. This is the background to the Trump administration’s heavy-handed new policy of family separation.

There’s no sign that the separation policy is having any deterrent effect on the immigrants. Instead—as with so many of the Trump administration’s immigration policies—tough new policies are having their main effect on the political consensus within the United States.

The policy of family separation could be brought to an end in one of two ways. The first is to do what Senator Ted Cruz has proposed: Hold those apprehended crossing the border illegally together with their children until they can be removed from the country as a family. Accomplishing that would require both authorizing new facilities and revising court-ordered rules that forbid the detention of children in immigration facilities.

But the Cruz concept has not won many friends across the aisle. Frank Sharry, the executive director of one of the most-quoted immigration advocacy groups, has reviled it as a plan for “family gulags.”

What many immigration advocates have in mind when they oppose “family separation” is preserving family unity by releasing the whole family together into the United States, pending a court date a year or two in the future. Ali Noorani, the executive director of the National Immigration Forum, has stated this demand: “Congress must explicitly end and prevent family separation and the indefinite detention of children.” If the children are not to be detained and the family not to be separated, the only alternative is to release the whole family into the United States until their application for asylum is resolved. Long before then, of course, most will have disappeared from official view entirely.

This was how things were managed during most of Barack Obama’s presidency.

In 2009, after a decade and a half of litigation, a U.S. immigration court granted asylum to a Guatemalan woman who pleaded that she had been victimized by domestic abuse.

You can understand why the courts did it. The fact claims in Matter of R-A-, as the case is known, were extreme and shocking. When the woman ran away from her violent husband, he tracked her down and brutalized her again. The police in her own country refused her appeals for protection. She put her children into the care of other relatives and fled to save her own life.

Hard cases really do make for bad law. Matter of R-A- opened the door to claims for asylum based on fear of private persons: husbands, gangs, criminals. The door was not used right away, because the case was decided just as the United States plunged into its steepest recession since the 1930s. But as the U.S. job market revived during Obama’s second term, people across Central America responded to their new opportunity to escape their poor and violent homelands. Hundreds of thousands of them set out to find a new and more prosperous life north of the Rio Grande.

Maybe the United States should have accepted them. They are willing workers for a country whose employers markedly prefer immigrant labor to native-born: In 2017, the unemployment rate for foreign-born workers averaged 4.1 percent versus 4.4 percent for native-born workers.

Or maybe the United States should have refused them. The gang culture of Central America was born in the United States, as poorly educated children of immigrants mimicked criminal behaviors they learned in the neighborhoods of Los Angeles.

What happened instead was that the United States imposed an elaborate pretense on its would-be immigrants. Surveys consistently showed that Central Americans immigrated to the U.S. in search of better work and better pay. A Pew survey in 2011 found that only about 13 percent cited crime and violence as their main motive. But the search for better pay does not provide legal grounds for remaining in the United States; fear of violence might. Immigrants, like all human beings, are rational actors who tell the stories most likely to obtain the result they seek. The medium through which that story is told is the asylum claim.

As of the end of 2017, almost 300,000 Central Americans claimed some form of refugee or asylum status in the U.S., Mexico, Panama, or other receiving country, according to the UN High Commission on Refugees. (Strikingly, asylum claims are rising—up 58 percent over 2016—even as violence has steeply declined in Honduras and Guatemala.)

The sheer number of these claims is choking the American capacity to respond to them. Each claim must get an individual hearing. The facts are often complicated, since some of those expressing fear of criminal gangs were themselves previously involved in those gangs in one way or another. It takes longer and longer to adjudicate cases: a median of 43 days in fiscal 2006, 286 days in fiscal 2015, and almost certainly much longer than that by now. While something like 60 percent of asylum claims are rejected, a rejected asylum claim does not easily translate into a repatriated asylum claimant.

The questions before the courts are profoundly unresolvable. How much crime must an individual fear to receive asylum? The homicide rate in Guatemala—about 24 per 100,000 people in 2016—was almost five times higher than the United States rate of 5.3 per 100,000 that year.  But the German homicide rate in turn is less than 1 per 100,000. Could an American seek asylum in Germany on that basis? You might say: Nobody would want to. But if German wages averaged 10 or 20 times those in the United States, many Americans might change their minds about the urgency of the 5-to-1 violence differential between the two countries.

It is disgusting and wrong to equate human beings with insects and animals, as Trump so disgracefully does. Illegal immigrants are committing no moral wrong. They are doing what we might do in their place—as we, by defending borders, are doing what they would do if they were in ours. Like so many human institutions, borders are both arbitrary and indispensable. Without them, there are no nations. Without nations, there can be no democracy and no liberalism. John Lennon may imagine that without nations there will be only humanity. More likely, without nations there will only be tribes.

Writing in The Atlantic a year ago, my colleague Peter Beinart remarked on the increasingly unanimous opposition among Democrats to any form of immigration enforcement at all.  “An undocumented alien is not a criminal,” Senator Kamala Harris protested last year. That view has been turbocharged over the past week. Here’s how the MSNBC host Chris Hayes described his reaction to a first-person account from a woman who had crossed the border illegally with her child, from whom she had then been forcibly separated:

Now notice something: As Hayes elaborates his horror at the separation of mother from child, he seems to arrive at a conclusion that there is something inherently oppressive about any kind of immigration rule at all. The “men in suits or men in uniform” he speaks of do not just “show up.” The border crosser goes to them. She is not just “living her life … and then all of a sudden, the state can come in and wrench your life apart.” She, of her own volition, traveled hundreds of miles to challenge the authority of a foreign state to police its frontiers. When her challenge failed—when she was apprehended and detained—what happened next must have felt harsh and frightening. But dictatorial? Totalitarian? In democracies, too, the wrong side of the law is an inescapably uncomfortable place to find yourself.

Trump and his brutish methods are radicalizing his opponents. But those opponents still retain the choice not to be radicalized. The spreading view that immigration is a civil right and that immigration enforcement is totalitarian is an attack on democratic legality. It subordinates rules and norms to desires and passions. It is also a corrosion of the ideal of a constitutional state. Social-media outrage is manipulative and dangerous even when it appeals to generous sentiments. The generous sentiment quickly becomes a foundation for yet more of the division and anger ripping apart this American community.

I was born in one country and am now a resident of another. So was my mother. So were all four of my four grandparents. I speak from inside the issue, and I am here to plead: Understand its power for good and for harm. In Europe and America, border laxness has empowered extremism—and trying to counter that extremism with still more extremism will do no good for any principle of freedom.

When managed lawfully and in reasonable numbers, immigration can be a tremendous addition to a society’s dynamism, wealth, and power. But management is indispensable. Legality is indispensable. Immigration control is both conservative and progressive: progressive because it enhances equality and mobility; conservative because it binds societies more cohesively together and strengthens the connection between a society’s past and its future.

It’s not easy to decide what to do about the accelerating surge of illegal immigration from Central America—or about the surges that will soon follow from the rest of the planet if the present surge is not checked. But the decision will surely be better made by means of rational discussion than in response to emotive images. You want to be different from Donald Trump? Fine. Do what he does not do: Think.