Revoke the Magic Pass

While the cacophony of complaints regarding the crisis at the southern border has died down over the last few weeks, the recent, multi-year surge in migration to the United States through that border is predicated on just a few facts.  First, large scale migration from the part of central America known as the “Golden Triangle”  – primarily El Salvador, Honduras, and Guatemala – is ongoing.  Second, the migrants from these countries are overwhelmingly economic in nature.*  Third, migration from Central America to the Mexico-United States border is relatively simplistic, and can be accomplished by even a person with limited resources in a matter of a few weeks (as occurred with multiple migrant caravans formed in late 2018 and early 2019).  Fourth, if a migrant to the US makes an asylum claim, he or she at least has the possibility of release into the United States while this claim is pending, and that possibility is much stronger if the adult migrant is traveling with a minor child whose period of detention by the federal government is limited by court order in the Flores case from the 1990s.

In effect, for economic migrants from poor Central America countries, there exists a “magic pass” into the United States.  A migrant makes an entirely land-based journey mostly across Mexico to the United States border, upon which the migrant crosses into US territory and registers an asylum claim with the hope of release into the United States pending the outcome of the asylum hearing.  In such circumstances, roughly 44% of asylum claimants released into the United States were ordered out of the country after no-showing asylum hearings, meaning their only goal was entering into the US, not actually participating in the asylum process.

Bottom line, the United States has a significantly-sized but relatively discrete migration issue (whether economic migrants who make asylum claims should be termed “illegal” is probably in the eye of the beholder).  This issue is confined to large-scale migration from just a few countries; it is economic; and it is reliant upon the inability of the US to quickly process significant numbers of asylum claims.  It is, in fact, notably different than the illegal immigration crisis that extended from the 1980s to roughly 2008 in which literally tens of millions of illegal border crossings were made by migrants overwhelmingly emanating from Mexico; today, illicit migration of Mexican nationals to the United States is relatively sparse.

Moreover, this border crisis is not a categorical failure of the asylum process or the concept of asylum.  Legitimate asylum claimants from many other regions of the world undertake harrowing trips to the United States, with some even seeking entry at the southern border.  A person escaping perpetual war in Somalia or Afghanistan – or religious persecution in Myanmar – may or may not qualify for asylum in the United States, but his or her claim, even if invalid, is simply not bogging down the asylum system and represents what that system is designed to adjudicate.

Accordingly, the crisis on the southern border – which is almost certain to again arise as a key 2020 election issue – is likely fixable, and fixable without massive policy changes.  Options would include restricting entry into the United States for asylum claimants from certain countries with significant numbers of persons making dubious asylum claims while the asylum claim was being adjudicated; creating a procedure where asylum claimants from certain countries with a history of questionable asylum claims could only make such claims outside the US (such as in Mexico or even at the US consulate in their country of origin); or passing legislation that would allow the US government to detain children (with their families) while their asylum claim is pending, a law that would nullify the Flores restrictions.  The Trump Administration is working on the first possibility with its repatriation of certain asylum claimants to Mexico and its negotiations to establish Guatemala as a “safe third party” country for migrants who have made asylum requests in the United States.

Should such efforts be successful, the impact would fix a broken asylum system (and alleviate the detention crises at the border) but not necessarily resolve the debate about what to do at the southern border.  Certainly, some economic migrants from the Golden Triangle would be discouraged in that the “easiest” path to the United States would be off the table.  However, many others would likely return to the age-old means of economic migration on demand – crossing into the US illegally and hoping not to be caught and deported.  Thereby creating a new impetus to protect the southern US border from illicit entry.  But that discussion, alas, awaits another day.

*The claim that Hondurans and El Salvadorans are seeking refuge in the US to escape the crime problems in their home countries is rather dubious, despite the mainstream media repeatedly advancing this argument.  While both countries are afflicted by high murder rates, certain US cities such as Baltimore and St. Louis suffer from similar, and sometimes higher, murder rates.  More strikingly, however, is that both Honduras and El Salvador have seen their murder rates halved since homicides peaked in those countries during the early 2010s.  At the height of violence across the Golden Triangle, which occurred while the US recovered from the Great Recession, there was not large scale migration from this region, because there were not large scale economic opportunities for migrants to the US.