The worsening crisis at the southern border that led to the forced resignation this week of besieged Homeland Security Secretary Kirstjen Nielsen is the product of two conflicting federal policies controlled by Congress that have the effect of encouraging mass migration from Central America.
Secretary Nielsen did a fine job administering the law as it stands, but was unable through administrative action to effect meaningful change. The crisis will continue until Congress takes action to resolve the conflict.
The two policies are an open door to applicants for asylum and create a border with Mexico that is poorly protected from illegal crossings. Of the 103,000 illegal migrants in March counted by U.S. Customs and Border Protection, 92,000 or 89 percent crossed the border between official points of entry.
American law allows illegal immigrants, once safely in the United States, to apply for asylum on the grounds that they are refugees from intolerable circumstances in their home countries. Migrants also can seek asylum at the border, and must be admitted temporarily while their petitions are reviewed.
As a result of the surge of migrants pouring into a dysfunctional system — a wave that can be traced largely to judicial expansion of asylum eligibility — holding facilities in the United States are strained to capacity and beyond. And a huge backlog in overwhelmed immigration courts means it can take months or even years to resolve individual cases. One result is that some asylum applicants are released from custody subject to be called back when their cases come up, otherwise known as “catch and release.”
Secretary Nielsen tried to address the crisis in December when she issued an order called the Migrant Protection Protocols, negotiated with the government of Mexico, that requires migrants to stay in Mexico until called to attend an immigration court hearing. At the time she said, “Aliens trying to game the system to get into our country illegally will no longer be able to disappear into the United States, where many skip their court dates.”
But the MPP was ruled illegal under U.S. law this week by a federal district judge in California, who suspended his order pending appeal. His finding said there was insufficient evidence that the migrants would be safe in Mexico.
President Donald Trump undoubtedly is impatient with legal arguments that he cannot close the border to migrants. But as Secretary Nielsen found there rightly are real limits to what you can do by executive order.
Several roots of the current crisis, including an ill-defended border and swamped immigration courts, can be traced directly to prolonged inaction on immigration law and border security by Congress. The crisis will not be resolved until there is a bipartisan solution to the debate over immigration law.
In the meantime, Mr. Trump needs to work closely with the new administration in Mexico to handle the migrant flows in a humane manner that also relieves the crisis at the border. And he should explore the suggestion by Mexican President Andres Manuel Lopez Obrador that a “Marshall Plan” of massive aid might be the only way to overcome the disintegration of society in Central America that is the underlying cause of the surge in migration.
The United States currently sends about $750 million a year to the region. The cost of strengthening the border and improving immigration services is likely to be more than $20 billion, but is also not likely to end illegal immigration. Certainly, slashing U.S. aid to Guatemala, Honduras and El Salvador, as the president has proposed, would make things worse.
We will not be able to stem the migrant tide without improved border security and better immigration laws, but we also must do more to discourage migration where it starts. Congress must act now.