Criminal Justice & the Rule of Law

How the Appropriations Bill Can Strengthen ‘Remain in Mexico’

Stewart Baker
Saturday, March 2, 2019, 7:02 PM

While Congress and cable news chatter about emergency powers and President Trump’s wall, there’s a far more important immigration fight under way on the southwestern border. At a time when judicial deference to the executive on immigration law has nearly vanished, the country is one court ruling away from a disastrous immigration outcome.

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While Congress and cable news chatter about emergency powers and President Trump’s wall, there’s a far more important immigration fight under way on the southwestern border. At a time when judicial deference to the executive on immigration law has nearly vanished, the country is one court ruling away from a disastrous immigration outcome. It was summarized this way by one Honduran caravan member, who traveled to the border because “she had heard … that bringing her daughter would guarantee them admission into the United States.”

She got it right—with one caveat. To avoid this outcome, the Trump administration is now telling applicants to wait for their asylum hearings in Mexico instead of the United States. That “remain in Mexico” policy, however, is fiercely contested and could be set aside by the courts tomorrow. If it is, anyone who crosses the border with a son or daughter will be more or less guaranteed admission, plus a work permit for some years, plus a realistic shot at staying in the country illegally for a lifetime.

I worked at the Department of Homeland Security (DHS) under President George W. Bush, and I played a large role in shaping and trying to pass comprehensive immigration reform legislation. I’m not a knee-jerk immigration restrictionist. But you don’t have to be a restrictionist to think that it is bad policy to offer years of legal U.S. residence to anyone who can pass a background check and walk across the southwestern border with a child in tow. There are probably a billion people around the globe who’d take that offer tomorrow. Worse, the policy effectively invites busloads of children and parents to cross without notice in some remote spots, swamping Border Patrol stations that were never built for child care. From a national security point of view, these mass border crossings are a major vulnerability; they can be exploited by smugglers who use them as cover to sneak in drugs and dangerous individuals elsewhere along the border while Border Patrol agents are busy handing out diapers and juice boxes.

So a lot depends on the Trump administration’s effort to cut this Gordian knot of laws and court rulings with a “remain in Mexico” policy. A group of nongovernmental organizations have already challenged the new approach in court, and they stand more than a decent chance of prevailing. Avoiding an adverse ruling will require creative lawyering and aggressive international diplomacy on the government’s part. In that effort, the administration may have gotten some unintended help from the drafters of the “compromise” appropriations bill that avoided another government shutdown. That, at least, is the thesis of this article.

As a preliminary matter, I should first address some of the misconceptions that distort the debate over illegal immigration. While the president’s proposal to build a wall has been remarkably divisive, the need for a wall is probably the easiest part of the immigration puzzle. It’s true that the Border Patrol needs more manpower, technology and tactical infrastructure, including a better wall in places; I saw those places firsthand when I was at DHS, and in some of them I’ve hopped back and forth between Mexico and the U.S. without difficulty. That said, there are two problems with treating more border infrastructure as the answer to illegal immigration.

First, any infrastructure can be defeated if the incentive is great enough. The easier it is to get a job in the U.S., the harder people smugglers will work to get over, under or around any barriers. So reducing cross-border illegal immigration isn’t just a matter of more border enforcement; the United States needs measures, like mandatory nationwide use of the E-Verify program, that make it harder to get jobs here after an illegal crossing.

Second, the United States’s entire border strategy rests on the assumption that intercepting immigrants crossing the border illegally will keep them out of the country. For years, that was true. Mexican immigrants were intercepted and promptly returned to Mexico. Immigrants from Guatemala or El Salvador spent a few weeks in custody and were then returned to their home country.

But as I said at the outset, that process has entirely broken down. Many of those who cross the southwestern border illegally today are not trying to get away from the Border Patrol. They want to be intercepted, because they are practically guaranteed the ability to work in the U.S. for years if they make a claim of asylum.

No one intended this result, exactly. Here’s how it came about. Under current law, any alien who arrives in the U.S.—whether legally or illegally—may apply for asylum. The person is then given an initial screening to see if he or she has a “credible fear” of returning to his or her home country—using a standard so low that practically everyone meets it, even though very few will actually be granted asylum after the lengthy process of making their case to an immigration judge. The problem is that the prospects for eventual success don’t matter anywhere near as much as what happens while the alien is waiting for the judge to rule.

At one time, the U.S. government could keep aliens claiming credible fear in detention while their full asylum claims were adjudicated. But thanks to class-action settlements from the Clinton era, children who cross illegally may not be kept in detention for more than 20 days. They and their parents must be released while they wait for an immigration court to hear their asylum claim. The family remains in the U.S. legally and, in most cases, can get work permits if their case takes more than 180 days to decide. And it will. Due to backlogs and delays in the system, it’s not too hard to string out an asylum appeal for years.

This is a Rubik’s Cube of law and policy, but the bottom line is exactly what the Honduran mother thought it was: Anyone who brings their children to the border will almost certainly be guaranteed admission. Even if their asylum claims are ultimately denied, as most are, they can live and work legally in the U.S. long enough to pay off their smugglers and send money home. If they want to stay even after their asylum claims are denied, they can simply wait for the notice to appeal, skip the hearing and slip into the shadows, working illegally but facing little practical risk of deportation.

As this improbable result became clear to people smugglers in the past year or two, they changed tactics. Instead of earning their fees by helping migrants slip across the border and evade the Border Patrol for days in the desert, they began to just dump their charges over the border near a Border Patrol station. The families would immediately turn themselves in so that they could start the 20-day clock on their release from custody and the 180-day clock on their work permits. Meanwhile, the smugglers would use the event to distract from their activities elsewhere in the sector.

This unsustainable state of affairs explains why the Trump administration has been desperate to end what it calls “catch and release” border enforcement. Democrats in Congress have shown no interest in helping. It may be a disaster, they seem to think, but it will be Trump’s disaster, so why help him fix it? In fact, the appropriations compromise over the president’s wall mostly makes the crisis worse. It provides more resources to catch illegal immigrants who already want to be caught but no authority to fix the legal mess that will force DHS to release them.

The administration’s solution is the Migrant Protection Protocols, or MPP, which essentially requires that asylum seekers from Central America and elsewhere wait in Mexico until they get an immigration court hearing date in the U.S. (There’s an exception for aliens who cannot safely wait in Mexico.) The MPP eliminates the incentive to make specious asylum claims solely for the purpose of delay and access to the U.S. job market. But the MPP’s basis in law is open to challenge, and not surprisingly it has been challenged in court by a coalition of groups such as the Southern Poverty Law Center and the ACLU.

To my mind, the most straightforward authority for the MPP is 8 U.S.C. § 1158(a)(2), which allows the U.S. to send asylum applicants back to a country they passed through on their way to the United States. But that section only allows the government to remove asylum seekers to a third country “pursuant to a bilateral or multilateral agreement.” For years the U.S. has had a “safe third country” agreement with Canada that allows us to return asylum seekers to that country. But Mexico has been reluctant to enter into a similar “bilateral or multilateral agreement,” and without such an agreement, the MPP’s legality hangs by a thread.

At least, that’s where things stood until the recent bipartisan appropriations agreement was reached. The appropriators’ agreement was widely seen as a defeat for the administration. It pumped lots of money into congressional priorities while reducing Immigration and Customs Enforcement (ICE) detention beds, curtailing ICE’s interior enforcement authority and providing only $1.3 billion for border infrastructure, much less than the president’s $5.7 billion request for a wall.

All that said, there may be a silver lining in the appropriations legislation for the MPP. The compromise bill appropriates hundreds of millions of dollars for international disaster assistance and foreign aid. For El Salvador, Guatemala, and Honduras, this assistance is conditioned on the certification by the secretary of state that they are “cooperating with the United States Government agencies and other governments in the region to facilitate the return … of illegal migrants arriving at the southwest border of the United States who do not qualify for asylum, consistent with international law.”

This provision may have been intended to encourage Central American countries to allow the return of their citizens after a full asylum adjudication. But it would not take a heroic feat of legislative interpretation for the secretary of state to decide that it also requires those countries to agree that their citizens who seek U.S. asylum may be detained in Mexico. This would meet the appropriations bill’s requirement that the countries facilitate the return of nationals who do not qualify for asylum, because many who meet the credible fear standard will never qualify for asylum. And it could provide the kind of “bilateral or multilateral agreement” needed to buttress the statutory basis of the MPP and the “remain in Mexico” policy. It’s also likely that some of the funding appropriated in the compromise could be spent on improving Mexico’s asylum and detention capabilities—a possibility that might induce Mexico to join the agreement, further strengthening the administration’s legal case.

There are a hundred subordinate issues to be resolved if the administration takes this tack. What process should govern applicants who say that Mexico may be safe for others but not for them? How much of the appropriated funds can be used to cover costs associated with stopping the risky mass migration of Central Americans to the United States? Will Mexico join in such a plan? What standards and incentives should apply to Mexico in its handling of migrants claiming asylum in the U.S.? And will an agreement of this kind pass muster with federal courts, many of which have pivoted sharply from great deference to active hostility toward executive branch immigration policies?

All that said, the appropriations bill may have done more than avoid a shutdown. If the United States is lucky, it may offer a better solution to the immigration crisis than the construction of a few miles of new wall.

Stewart A. Baker is a partner in the Washington office of Steptoe & Johnson LLP. He returned to the firm following 3½ years at the Department of Homeland Security as its first Assistant Secretary for Policy. He earlier served as general counsel of the National Security Agency.

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