Here's the One thing causing the Border Crisis

Immigration Reform is like a Rubik's Cube, but with a corner piece missing

Yesterday, the clock ran out on Title 42 — the legal policy used by the US government to expel undocumented immigrants because of their public health risk. A month ago, when a lower court gave the Biden administration until December 21 to dispense with the “arbitrary and capricious” application of Title 42, I wrote that this urgent pressure might unlock genuine immigration reform in the halls of Congress.

Well, scratch that. The potential compromise appeared in the form of an admirable Sinema-Tillis Senate deal that died from neglect this week. It faced two headwinds, according to George Will: First, too many legislators and activists “will settle for nothing less than a ‘comprehensive’ solution to all immigration complexities.” Second, there is an Army of “those who want no solutions, preferring to tickle political advantage from endless border turmoil.”

Wait, though, if border agents have been actually blocking undocumented migrants using Title 42 for years, why have a record-number of immigrants been allowed in?

Border Crisis Explainer

In order for an undocumented immigrant to be expelled under Title 42, Mexico or the (reported) home country has to be willing to take the individual back. Some countries won’t accept deportees, notably Venezuela, Nicaragua, and Cuba among others. You can see where this goes: lots of Venezuelans, Nicaraguans, and Cubans are incentivized to migrate, and others have an incentive to claim those nationalities.

The border situation evolves so weirdly that it is hard to understand at any given moment what the heck is happening and who is pushing for what and why and — are they even sincere? Right now, the use (abuse) of Title 42 seems to be the main issue. Let’s be honest, blocking international travelers as one of many tactics to hinder COVID’s early spread made sense, so invoking Title 42 in March 2020 to expel asylum seekers had real merit. That rationale became difficult to justify over the course of 2021 — and especially hypocritical for Biden to extend Title 42 during his presidency (after campaigning against it). Now it’s doubly ridiculous for Republican-led states to be advocating and suing for the continued use of Title 42 now. I say this because the most powerful nation in the world shouldn’t have to rely on the fiction of a continuing pandemic to control its borders.

Yet here we are, on the cliff’s edge. The New York Times describes it as “limbo” on both sides of the border:

One administration official, speaking on condition of anonymity to relay internal discussions, said the department was facing potentially 12,000 illegal border crossings a day once the policy ended, with the resources to manage about 4,000.

Surprise! Chief Justice John Roberts “temporarily froze [the Dec 21] deadline on Monday, and asked the parties involved in the lawsuit, the Justice Department and the American Civil Liberties Union, to weigh in,” according to CNN (which has been doing fantastic reporting on the crisis). Immigration activists, notably the ACLU, are saying the states have no standing in the particulars of Title 42. I actually think that is correct, but the states surely have standing in the grand scheme of things. Border cities and states are truly overwhelmed already. When the New York Times is admitting El Paso is overwhelmed, believe it:

[As] some border crossers are sleeping on downtown streets as temperatures dip below freezing, El Paso’s historic hospitality may finally be wearing thin.

… On the streets of El Paso, the escalation in migration has been visible everywhere. Groups of migrants stood outside a shelter that had no more room. At night, many of the arrivals were huddled on the sidewalks and in alleyways under blankets and coats, trying to keep warm. Some have been wandering through the city with seemingly no place to go.

Let’s hope the Supreme Court takes an expansive view and considers more than the technical question.

In other words, what is really causing the border crisis?

No, it is not push-factors. Long term trends for crime and poverty are down across Latin America and have been for ten years.

No, it is not the unbuilt wall. Nor is it funding more billions for so-called border security. The wall was largely built a decade ago, and billions more in DHS funding merely translates into faster settlement of people inside the U.S., not faster adjudication and deportations. (On that note, Simon Hankinson wrote a blisteringly brilliant piece articulating the conservative frustration about border story falsehoods that I highly recommend). It sure seems to many that more funding for border security is correlated with more illegal immigration, not less.

Here’s the real culprit: The Flores Settlement, what I think of as the broken piece in the Rubik’s cube.

Photo by Michelen Studios on Unsplash

There is a systemic decay in modern society that we simply can’t enforce laws with competence, for lots of reasons. We see an explosion of homelessness, of shoplifting, of misbehavior in schools, and yes of illegal immigration. You could probably list a dozen things of your own. Much of the erosion of executive competence is a consequence of rising liability leavened with a relentless distortion of what words in law mean. Illegal becomes undocumented becomes refugee, leaving the plight of real refugees obscured. Likewise, it is ever harder to understand what is actually happening when words and data are confused — what’s the difference between expulsion and deportation? Encounter and apprehension and detention? You have the DHS and its subordinate organizations USCIS, ICE, OFO and USBP. It’s borderline incomprehensible at the border.

Which is why I am here to tell you: the root cause of the border crisis is the 25-year old Flores Settlement, which was intended to be temporary (of course), but was instead expanded by the Courts until it created a paradox. Call it Catch-18. There are dozens of good summaries of the Flores Settlement (see CIS, JFI, Wikipedia), if you are curious.

The original agreement held that unaccompanied minors could be held no longer than 72 hours before release, or 20 days if certain standards were met. In 2015, despite protests from the Obama White House, a U.S. District Court in California expanded Flores to cover accompanied children, a ruling from U.S. Judge Dolly M. Gee that led to all sorts of flawed downstream consequences.

Imagine the dilemma facing a border patrol agent. You discover group of illegal immigrants - two adults with one infant. After detaining the family for 72 hours (maybe the infant is their daughter, maybe not), you have to two legal options. Either release the whole family inside the United States or separate them, keeping the adults in detention and releasing the infant to … who? As you know, the Trump administration tried family separation as a policy, which failed. So the only option for the enforcement agencies is full family release, which in effect means that immigrants can get into the country without a visa or documentation if they bring along a child under the age of 18. That’s Catch-18. And since Gee made her flawed ruling in 2015, and Obama declared DACA, there’s been an explosion of family migration.

Some will argue that these families still have to appear in Court and face the prospect of deportation. Yes, in theory. In practice, deportations are rare and besides the process is plagued by backlogs that are years long. Five years on average. It’s de facto Open Borders.

Catch-18 could be resolved by the Executive branch or Legislative branch in theory, but probably cannot be in our reality. The Supreme Court is essential here, first to recognize the perverse incentives set up by Judge Gee, second to empower border patrol agents to turn back migrants using their own judgment. There’s plenty more SCOTUS could do to force clarification in the law, especially in how refugees and asylees are defined, but fixing the Flores-Gee Catch-18 is the essential first step to making the problem at least solvable if not solved.