Once again, Washington made a show of doing nothing about the country’s broken immigration system — except to try to score political points. Senate Majority Leader Charles E. Schumer (D-N.Y.) on Thursday brought to a vote the bipartisan border security deal that members of both parties agreed upon in February — and that Republican senators ultimately rejected after Donald Trump said its passage would help President Biden.
The bill failed to pass, again, for the same reason. Mr. Schumer resubmitted it to remind Americans of Republicans’ cynicism: refusing to do anything to fix the border so they can continue using it to pummel Mr. Biden. Yet Mr. Schumer’s maneuvering was also a political ploy, an attempt to shift the blame for an immigration mess that most Americans believe is out of control.
Washington needs to craft a better system to manage the mass migration of people seeking asylum in the United States, as migrants request US protection at massive rates, knowing that the process for vetting their claims will drag out. That requires, above all, clear standards to determine who is entitled to protection that are enforced swiftly and certainly. Otherwise, they will not be credible. The bipartisan bill would have done some good in this respect. But its backers vastly oversold what it could accomplish.
Consider its provision to “shut the border” amid large surges of asylum seekers. There is a close precedent: Title 42, the rule deployed during the covid-19 pandemic, from March 2020 until May 2023, to summarily expel migrants on public health grounds without hearing their asylum applications. Trump adviser Stephen Miller said it could be invoked again to keep out “severe strains of the flu” or “scabies.”
Three million people were expelled under the rule. But it didn’t stop the flow. Border Patrol encounters with migrants increased sharply, largely because, under Title 42, they didn’t face consequences for repeat illegal entries, including criminal prosecution. So those kicked out would turn around and try again, hoping to sneak through undetected. Recidivists rose from 7 percent of encounters in the fiscal year of 2019 to 27 percent in 2021. Unauthorized migrants whom US agents detected but failed to catch — “gotaways” in Border Patrol parlance — also soared as migrants kept trying until they made it.
That was hardly the only glitch. Washington soon discovered it couldn’t apply Title 42 to everyone showing up at the border because often there was nowhere to send people back to. Overall, only 41 percent of those encountered at the border were expelled using the rule. The United States could expel single adults coming from Mexico and Central America, because Mexico would accept them. But countries such as Venezuela, Cuba and China would not take back their citizens. Only 8 percent of single adults not from Central America or Mexico got kicked out under Title 42.
Beyond political showmanship, “fixing” the border requires sending a credible signal around the world that the United States can enforce its rules. Today, it can’t. The country doesn’t have the agents to conduct interviews to determine whether migrants meet the standard to request asylum, the judges to rule on whether asylum is warranted, or enough beds to house migrants until these things are determined.
US Immigration and Customs Enforcement, for instance, reports 1.3 million immigrants scattered around the country who have been denied permission to stay and face removal orders. ICE cannot detain 1.3 million people — it has only 40,000 beds. Nor can it deport them quickly, even if their home country would take them back. It has 11 planes.
The job should be easy for a Border Patrol agent facing, say, a single Colombian man caught crossing the border illegally. The man is healthy. He doesn’t express fear of being sent back. And Colombia accepts deportation flights from the United States. Except, oops, Immigration and Customs Enforcement flies only two deportation planeloads a week to Colombia, and they depart from Harlingen, Tex., and Alexandria, La. Will there be a free seat on a plane? Can the man be sent there in time for the next flight? Is there space to house him until his deportation flight takes off? If any one of the answers is no, chances are the agent will release said Colombian with a notice to appear before an immigration judge — probably several years in the future. Most migrants caught by the Border Patrol get one of those. Requiring that Colombian men meet a tougher standard to be granted asylum will not change this pattern.
To be fair, the bipartisan Senate deal included provisions to boost the credibility of the United States’ rules. It would have funded more than 4,300 new asylum officers and support staff, 100 additional immigration judge teams, 1,500 Border Patrol agents and customs officers, 1,200 Immigration and Customs Enforcement staff to help with deportations. It would have increased detention capacity and added deportation flights. This, but at a grander scale, would offer the best shot at bringing the border under control. After the political skirmishing is done, lawmakers ought to work on a solution.
