Fix source, not symptom

Sandeep Gopalan

AMERICA is in the throes of a moral and legal crisis as President Trump grapples with the aftermath of outrage generated by images of crying children being separated from their families at the US-Mexico border. Retracting his position, he issued an executive order, expressing the “policy of this administration to maintain family unity, including by detaining alien families together where appropriate and consistent with law”. As per the order, the government will “maintain custody of alien families during the pendency of any criminal improper entry or immigration proceedings.”

This is a departure from the zero-tolerance policy that generated condemnation. Since May 2018, over 2,300 children were separated from their families at the border. When families crossed the border illegally, the adults were prosecuted for the crime of improper entry. Under previous administrations, illegal crossers were not always prosecuted. Family units were held in immigration detention and processed by a judge.

Crucially, the order alone will not provide relief to the problem of children being separated. Under a court-ordered settlement in the Flores case, children must be released to their parents or guardians within 20 days. The government is also required to use the “least restrictive means”. For there to be relief, the administration must approach the US District Court for the Central District of California and seek modification of the Settlement Agreement in Flores to hold children for longer periods.

Assuming the court approves longer detention, the crisis will be far from over. It may take months for asylum determinations to be concluded and families may have to be in detention for that duration. Military bases are preparing facilities for detaining thousands.  

Trump has reiterated that his order did not put an end to zero-tolerance for illegal immigration. This means aggressive raids, prosecutions, and deportations are likely to continue. Although his rhetoric has been primarily aimed at South American migrants, the new policies have also trapped Indians; 52 have been detained in Oregon. Their claim of persecution in India by Hindus is unlikely to persuade US authorities.

The US has a massive illegal immigration problem — the number is over 11 million. As the US economy endured a long slump after the 2007 mortgage crisis and citizens experienced job losses, anti-immigrant sentiment rose. Politicians had to respond and a variety of legislative fixes were attempted by the Bush and Obama administrations. These attempts broke down primarily over amnesty proposals for existing illegals; a blanket amnesty would encourage further immigration. 

Trump was elected on a pledge to be tough on illegal immigration. And Trump has delivered, cracking down on the MS13 gang, escalating raids, and whipping up rhetoric. However, the current crisis illustrates the limits of such policies. Words are cheap but when harsh laws rub up against crying children, even Trump’s Republican Party was sundered. 

The sizeable evangelical Christian vote-base believes punishing innocents who cross to escape life-threatening conditions in Honduras, El Salvador etc., should be treated with mercy. Another faction demands zero-tolerance. Still others plead that immigrants should come in solely through legal means. They point to unfairness experienced by skilled immigrants from India who have been waiting years for permanent residency. 

These tensions divide even immigrant communities. Can Trump bridge the gap? That is unclear because although America is a land of immigrants, it has undergone a massive demographic shift in recent decades. About 50 million residents were born abroad as of 2017 — more than double the 23 million such residents in 1990. This influx has strained resources across education, healthcare, law enforcement, and housing, generating resentment and breeding native populism.

Despite pleas by religious leaders (including the Pope), and posturing by Democrats, popular sentiment is unlikely to turn in favour of open borders or a general encouragement of immigration. Equally, it is impracticable to deport all 11 million immigrants immediately; many have children born in the US who are now American citizens.

Therefore, solutions have to be based on common-sense rather than outrage. First, both sides have to accept that a blanket amnesty for 11 million people is unviable and generates unintended consequences. A pathway to legalisation has to result in temporary work visas, on par with those who came through legal means. To grant permanent residency directly would undermine the legal route. Second, many illegals could be issued guest-work passes that don’t entitle them to free public services or permanent residency. Third, the US should set up asylum processing centres in upstream countries. If the application is refused, there should be no entitlements at the border. 

Fourth, there must be greater investment in building safe shelters in major conflict zones to ensure that people do not have to flee to survive. These desperate journeys impose additional tragedies on refugees: exploitation, rape and death at the hands of traffickers and criminals. Building shelters and providing food, clothing, and healthcare at the source will be cheaper than hosting refugees in the US or Europe. 

Fifth, legal immigrants must not be casualties in immigration reform. Those who came via legal means must be processed first and the national caps on permanent residency must be lifted for highly skilled migrants. Over 3 lakh Indians are in limbo because of these counterproductive policies. 

Finally, asylum seekers who do not have criminal records must be released. Criminalising immigrants is both costly and counterproductive; prisons have criminogenic consequences and innocent people may be socialised into offending by hardened criminals.

And it is not just an American problem. Chancellor Merkel’s political survival depends on her solving a similar problem in Germany. The Italians, Poles, and Hungarians are all imposing harsh anti-immigrant policies in response to democratic opinion and creating the next crisis in Europe. The US and EU will only avoid future humanitarian horrors by investing in common-sense mitigation strategies. Trump and other leaders must persuade their electorates that greater investment in refugee-source countries is the only solution. Given that it is cheaper than letting in refugees, the Dealer-in-Chief should embrace that deal.

The writer has served on the American Bar Association Commission on Immigration