National Review, February 22, 2024
Credibility in immigration policy can be summed up in one sentence: Those who should get in, get in; those who should be kept out, are kept out; and those who should not be here will be required to leave.
— Barbara Jordan, chairwoman of the U.S. Commission on Immigration Reform, 1995
If a Democrat is sworn in as president of the United States next January, it’s not inconceivable that over the next four (or eight!) years, much of U.S. immigration law could come to resemble those archaic statutes that no one has bothered to repeal, like South Carolina’s ban on keeping a horse in your bathtub. But if someone becomes president who actually wants to create a sustainable immigration regime that promotes the national interest, his or her priority should be to stabilize the border, and next would be to implement administrative and statutory changes that would prevent the problem from returning.
During the recent discussion of the misbegotten Schumer-Lankford border bill, there was much talk about President Joe Biden not needing new laws to do his job. This was true, but only partly.
Biden, suffering from an acute case of Orange Man Bad, went beyond what you’d expect of a new administration of the opposite party and created the border mess through 535 executive actions on immigration, undoing virtually every immigration measure undertaken by the Donald Trump administration. Repairing that vandalism should be job No. 1 if there is to be any hope of security at the border. But even under President Trump, when the border was under much better control, there was still too much infiltration, in large part because of statutory loopholes. Those have to be addressed, but since legislation necessarily takes longer than executive action — and because Congress and the president don’t always agree — administrative changes should come first.
The most urgent is to end catch-and-release. Any alien arriving at a port of entry, or between them, is required by law to be detained if he “is not clearly and beyond a doubt entitled to be admitted” and must be kept in detention until he is either lawfully admitted (as, say, an asylee) or deported. The detention mandate dates to the Ellis Island era and is required by the standard that civil-rights pioneer Barbara Jordan states in this article’s epigraph, that “those who should be kept out are kept out.” Under Biden, virtually all aliens have been released into the country, most of them almost immediately after being “processed” by Border Patrol, the rest shortly after being transferred to Immigration and Customs Enforcement or the Department of Health and Human Services. Few aliens will have valid asylum claims; most are coming to claim asylum and then enter the country. Prospective illegal immigrants make a normal cost–benefit calculation: The expected expense and dangers of reaching the U.S. are worthwhile only if the expected value of success — the ability to live and work here — is high enough. Biden’s policies virtually guarantee success, so more people undertake the trip. Detention is required to reduce the odds of success and, therefore, the number of attempted crossings.
Expanding detention capacity for single adults, which the administration has spent three years gutting, would be expensive but relatively easy. A sustained increase would require legislation, but the executive can increase it in the short term using resources from the Department of Defense, the Department of Homeland Security, or the Federal Emergency Management Agency. Once single adults are almost guaranteed to be detained, their mass crossings will subside, and the spike in costs will also subside.
While single adults account for most of the illegal flow, in fiscal year 2023 about 40 percent of encounters at the southern border involved minors who were traveling either alone or with adults claiming to be family. Detaining illegal-alien families is complicated by the 2015 ruling, in Flores v. Johnson, that minors may not be held in detention for more than 20 days. In order to avoid family separation, the adults are usually released too, turning youngsters into a ticket to America for those with no right to be here. The Trump administration issued a regulation that would’ve superseded the Flores settlement but was stopped by the Ninth Circuit. Regaining control of the border will require updating and reissuing that regulation and, if necessary, defending it in the Supreme Court. Unaccompanied alien minors are a more difficult problem. Congress will have to fix the Trafficking Victims Protection Reauthorization Act of 2008, though, again, there are ways to tighten up the system administratively. The goal should be to ensure that, unless they have no family at all or are victims of enslavement, young aliens are to be reunited with their family in their home countries.
Better than detaining and repatriating border-jumpers is keeping them out of the country in the first place. This is the point of border walls, which are most practical on straight-line land borders such as the California, Arizona, and New Mexico portions of our southern frontier. Most of the border is delineated by the Rio Grande, however, and you can’t put a fence in the middle of the river. It is necessary to plug gaps left by Biden’s stop-work order, instituted when he took office in 2021, but further wall construction is not likely to deliver the most bang for the buck. Preferable would be a resumption of the Migrant Protection Protocols, or “Remain in Mexico” program, which effectively detained border-jumpers seeking asylum by making them wait for their hearing dates in Mexico. The Biden administration has abused the president’s narrow “parole” power, which is intended for individuals in rare and exceptional circumstances, transforming it into a program for admitting hundreds of thousands of inadmissible aliens. This should be discontinued, and ultra vires grants of parole should be revoked. Eventually, Congress should radically restrict the president’s parole power, because executives of both parties have abused it.
The border is the last chance to prevent illegal entry. We should strive to get Mexico to do a better job of policing its own southern frontier, which migrants from Central American countries must transit before entering the United States. The Biden administration recently adopted such a policy, and it has contributed to a reduction in border-infiltration levels from catastrophic (nearly a quarter of a million in December 2023) to merely calamitous (about 124,000 in January 2024). A new administration should also restore safe-third-country agreements with the Northern Triangle countries of Guatemala, Honduras, and El Salvador. Under these arrangements, people who passed through one of the countries had to apply for asylum there. Likewise, we should induce Panama to deport all northbound foreigners emerging from its Darién Gap rain forest, even if we have to cover the costs.
Billions of people in the developing world could qualify for asylum under the anachronistic 1967 U.N. refugee protocol and subsequent American legislation. The most consequential long-term step a new president should take, therefore, would be to withdraw from that U.N. treaty. It should also withdraw from the U.N. Convention against Torture, which limits our ability to deport even criminal aliens, and whose provisions have also been set in domestic law. And the “credible fear” screening standard to determine whether an alien is allowed to apply for asylum should be raised: The “particular social group” term in the law is a catch-all category that allows virtually anybody to claim identity-based persecution. It can be narrowed by regulation but will need to be fixed in statute if the change is to last.
Such changes would cause a large reduction in the flow of illegal aliens. But what to do about those who have already been let in and whose number is certain to grow in the final year of Biden’s term? If, to quote Jordan again, “those who should not be here will be required to leave,” how can we effect that?
The first step, and one well within a president’s existing power, would be to increase deportations. Under the Biden administration, the number of overall deportations as well as the removals of criminal aliens has declined (the latter by 67 percent). The memos that have handcuffed ICE officers from even investigating or questioning illegal aliens should be revoked. But we wouldn’t be able to simply deport our way out of the mess Biden has created. Work-site enforcement would also be essential. Audits and raids of employers (and whole industries) known to employ large numbers of illegal workers would have an additional deterrent benefit. Mandating E-Verify for new hires would require legislation, but G-Verify could be mandated through regulation, requiring the Social Security Administration and the Internal Revenue Service to work with DHS to verify employment eligibility automatically whenever an employer submits tax information for a new hire. This would also save employers from having to do extra administrative work and record-keeping. Regulation instituting G-Verify was prepared during the Trump administration, but time ran out and it was never formally issued.
All of the foregoing would help make sure that the immigration law is enforced, but what should our immigration rules be in the first place? Jordan said, “Those who should get in, get in” — but who should those be, and how many of them? This isn’t the place to lay out a total revamp of legal immigration. Suffice it to say that, once again, while this is finally the preserve of Congress, there is still much that can be done administratively, especially in the area of temporary visas.
For instance, ICE is supposed to oversee the foreign-student program. A new administration should direct it to do so less lackadaisically. Optional Practical Training — a one- to three-year guest-worker program for foreign STEM graduates of U.S. universities — should be eliminated. And the 85,000 annual H-1B professional visas (three-year visas for specialty occupations) should be apportioned beginning with the highest salary offered by a petitioning employer, as in an auction, rather than randomly, through a lottery, as now.
This survey just scratches the surface of what an immigration agenda for a new administration could be. While making immediate policy changes is imperative, any new officials in the White House and at DHS should strive to bring Congress along to put an end to the immigration-policy ping-pong we’ve had to watch over the past several administrations.
This article appears as “Toward a New Immigration Policy” in the April 2024 print edition of National Review.