Originally Published in The New Yorker.
January 6, 2019
On Friday, a few hours after insisting that the government shutdown could last “months or even years” if Democrats in Congress refused to fund a border wall, Donald Trump offered an even more immediate warning. He was willing, he said, to declare a national emergency in order to build it. For the past two weeks, the President and top members of his Administration have been making their case, citing a “border crisis” and threats to American sovereignty and security, while blaming the usual suspects for the incursion, from MS-13 and the migrant caravan to Nancy Pelosi and liberal judges. “The crisis is not going away,” the Secretary of Homeland Security, Kirstjen Nielsen, wrote on Twitter. “It is getting worse.”
The irony, in light of the continuing political deadlock, is that Nielsen and the President are right about the current situation. There is an immigration crisis at the border—it’s just not the one the President keeps talking about. In the last half decade, while immigration at the U.S. border has dropped significantly compared with earlier years, the profile of migrants has changed in ways that the U.S. immigration system has never been designed to address. Instead of young men and seasonal workers, most of whom migrated from Mexico, the majority of people now arriving are asylum-seeking families and children from Central America. In November, more than twenty-five thousand families crossed the U.S. border—the highest such monthly total on record—fleeing violence, poverty, and rampant political corruption that have made parts of Honduras, El Salvador, and Guatemala virtually uninhabitable. “There is a refugee crisis in our hemisphere,” Cecilia Muñoz, who served as the director of the White House Domestic Policy Council under President Barack Obama, told me recently. “You can’t fix that at our border. The countries in the region—with the U.S. as the leader—need to try to deal with this collectively.”
The rise in asylum seekers poses a complex logistical problem for U.S. authorities. By law, these migrants must be allowed to present their claims to immigration agents. At the same time, children cannot be detained for more than twenty days. When the scope of the present situation first became clear, in the final years of the Obama Administration, the government initially tried to detain families together, but a federal judge blocked the effort. Since then, the Department of Homeland Security has simply extended a practice it employed for migrant families back when their numbers seemed more manageable: it releases them with a future court date to appear before an immigration judge. The Trump Administration has panned this approach as “catch and release,” but, rather than making policy adjustments, it has spent most of the past year punishing asylum seekers and attempting to dismantle the system. These tactics, which were designed to scare families from making the trip north, did nothing to change the immigration flow, and the federal courts have halted each of the President’s signature policies, including, most recently, his proclamation banning asylum at the southern border altogether. “It’s the complete, 100 percent focus on harsher options that will deter the influx,” an official with the Department of Homeland Security told the Times. “We have a lot more families, a lot more unaccompanied children, and the focus has just been on how can we deter, rather than how can we handle.”
On Christmas Eve, two days after the federal government officially shut down, ice dropped off hundreds of families at a bus station in downtown El Paso. Local migrant shelters, which are typically contacted by ice, were not informed ahead of time. During the next four days, some sixteen hundred immigrant families were left at the bus station without food, warm clothes, or money for travel fare. In recent months, the mass releases of families—often without forewarning to local advocates—have become routine in Arizona, New Mexico, and Texas.
“These families are not trying to evade anyone. They’re presenting themselves to the first Border Patrol agents they can find,” a current Administration official told me. “This is not a border-security crisis. It’s an administrative-processing problem.” Sending more asylum officers to the border and hiring more immigration judges are obvious steps to reduce the growing queue of migrants, the official said, but the real issue is a series of deeper bureaucratic limitations. “ice is trying to get beds freed up faster so it can prepare space for the next family to come through,” the official said. “There’s a limited number of beds to accommodate families. And the agencies involved”—ice, Customs and Border Protection, and U.S. Citizenship and Immigration Services—“have had a hard time coördinating.” By the time Citizenship and Immigration Services is ready to conduct a preliminary asylum screening (known as a credible-fear interview), many of the families have already been released by ice. In 2017, the majority of families seeking asylum at the U.S. border were released into the country without first going through the credible-fear interview. “They weren’t detained long enough for that to happen, and ice had nowhere to put them,” the official said. “None of the solutions involve the resources the President is now talking about.”
Aside from demanding five billion dollars to build a wall, the Administration has also tried to force Mexico to house U.S.-bound asylum seekers indefinitely while their cases move through the backlogged American immigration courts. The plan, known as Remain in Mexico, will likely be challenged in U.S. federal court, but not before it upends the precarious political landscape in Mexico. “The U.S. can’t just dump people into Mexico,” Tonatiuh Guillén López, the head of the country’s immigration authority, said last week. “We’ve asked for more answers, but the U.S. government is shut down, so I guess they’ll answer when they figure that out. It’s all up in the air.”
What would it look like if the Trump Administration were actually trying to solve this problem? For one thing, it would not have rolled back programs implemented at the end of the Obama era that were calibrated to the new reality at the border. In August, 2017, the State Department cancelled the Central American Minors program, which, though relatively small, vetted children for refugee status in their home countries to prevent them from making the overland journey to the U.S. border alone. That same summer, the Department of Homeland Security ended a pilot project called the Family Case Management Program; designed as an alternative to family detention, it allowed a thousand families in five American cities to live temporarily in the U.S. under supervision while awaiting their asylum hearings before an immigration judge. Ninety-nine per cent of the enrollees attended their mandatory check-ins with ice and eventually showed up for their court dates. The population in ice detention has spiked under Trump, and, in response, D.H.S. has redirected funds to ice from other agencies, with massive increases in detention funding in the last two years from the Republican Congress. “The additional detention beds are the result of Trump’s harsh enforcement practices against adults, but family detention hasn’t increased,” Kevin Landy, the director of ice’s Office of Detention Policy and Planning under President Obama, told me. “Additional funding for alternatives to detention—and less detention—would better address the family influx, and it would also be a more humane approach for adults who pose no threat to public safety.”
No one with any immigration-policy experience underestimates the challenges of responding to a regional humanitarian crisis. In the spring of 2014, the Obama Administration was pushing House Republicans to vote on a comprehensive immigration-reform bill that had already passed the Senate when it was blindsided by the arrival of tens of thousands of unaccompanied immigrant children at the border. Their arrival became national news, and Eric Cantor, then the Republican House Majority Leader, lost his primary that year to a Tea Party insurgent who campaigned on a strongly anti-immigrant platform. “That’s really when the bottom started falling out,” Cecilia Muñoz told me.
Immigration policy has always given rise to pitched political battles, on the left and on the right, but this is the first time in modern memory that an American President has openly and deliberately stoked these divisions for the sake of partisan theatre. The more the shutdown fight centers on the wall, the further away lawmakers get from the real policy problem. “In a theoretical world where parties are working together, you still have to rely on alternatives to detention, and you have to accept the fact that more families are coming into this country and there isn’t an immediate thing you can do to stop them,” Landy said. “Trump is trying to create a sense of crisis without having the slightest idea of how to solve it.”