The humanitarian crisis on the Southwestern border has reached a critical stage.
El Paso, Texas, is struggling to handle the influx of migrants. It converted a convention center and two middle schools into migrant housing facilities because the city shelters were overwhelmed, but hundreds of migrants still sleep on the city streets. And the challenge is not confined to the border towns. Hundreds of miles away, New York City, Chicago, and Denver, among others, find their resources strained to address the needs of the migrants.
The crisis cries for a solution, but none is in sight.
Critics call for securing the border, and deterring the illegal crossers, including giving border patrol authority to immediately expel them, strictly enforcing the immigration laws, and reinstituting former President Donald Trump’s harsh policies such as “Stay-in-Mexico” and separation of children from parents and families.
Deterrence has not worked, and the surge of migrants continues unabated.
The numbers indeed are staggering – 2.2 million encounters of illegal crossers in the fiscal year 2022, and 206,239 encounters reported in November 2022, the latest figures available, according to the U.S. Customs and Border Protection.
Migrant encounters either result in apprehensions under immigration law, where migrants are taken into custody in the United States to await legal processing, or they are immediately expelled back to their home countries or last country of transit under Title 42 of the US Code on the ground that they could be carrying contagious diseases. The Trump administration invoked it during the Coronavirus pandemic, and the Biden administration’s effort to revoke it was challenged. The Supreme Court is now set to rule on the issue.
The trend of these encounters has shifted from Mexico and the Northern Triangle countries of El Salvador, Guatemala, and Honduras, to Cuba, Nicaragua, Peru, Venezuela, and Colombia.
Why doesn’t border enforcement deter the flow of migrants? The simple answer is that desperate migrants who are fleeing from violence and failed states such as Venezuela, Nicaragua, and even Cuba, and undertaking the perilous journey to reach the United States, often have given up everything in the attempt.
Expulsions under Title 42 are simply pandemic Band-Aids. Hundreds of miles of fencing and walls, and more than 20,000 border patrol agents, don’t deter them because they have no choice but to press on. Borders should be secure, but given the political and economic roots of the crisis, border enforcement is not a solution.
My colleague Elizabeth Jordan, who directs the University of Denver Sturm College of Law’s Immigration Law and Policy Clinic, has had extensive experience in the field and has visited the border, said she has found it the most militarized border in the world. She agrees with most experts that the problem can be solved only with regional and international collaboration.
Republican Governors Ron DeSantis of Florida and Greg Abbott of Texas have flown and bused apprehended illegal border-crossers to Democratic strongholds, including New York, Chicago, and even to Martha’s Vineyard in Massachusetts.
Mayor Eric Adams of New York City recently traveled to El Paso after issuing an emergency declaration in October over the migrant arrivals in New York. Noting the depleted shelter space in the city, he said that New York City “cannot take more migrants.” Calling it a national crisis and seeking a national solution, He asked for increased state and federal aid, including congressionally allocated funding from the Federal Emergency Management Agency (FEMA), to implement a coherent federal strategy and plan. The Mayors of El Paso, Oscar Leeser, and of Chicago, Lori Lightfoot, have also called for federal assistance.
In Denver, Mayor Michael Hancock housed arriving migrants in shelters and recreation centers and sought the help of both public and private partners to address the challenge. He called for a long-term strategy and congressional action to solve the problem. Numerous faith-based groups and other non-profits are also helping. Some of the migrants were initially bused to Chicago and New York, but after those mayors called upon Gov. Jared Polis to halt the busing, he did so, although he said migrants wanted to go there.
I spoke with Arapahoe County Commissioner Jessica Campbell-Swanson, a Denver Law School alumna, who said that Arapahoe County is keen to assist Denver, but it has no shelters and is resource-constrained.
President Joe Biden visited the border on his way to Mexico to attend a summit with his Mexican and Canadian counterparts. Some of his initiatives include a process under which potential migrants must apply online for entry from their home country for a protection claim and wait there for a scheduled appointment at the U.S. port of entry in order for CBP to gain better control of the process (this does not go into effect until Title 42 ends); the Los Angeles Declaration, under which Colombia, Ecuador, Costa Rica, and Belize are implementing policies to provide legal status to a large number of migrants and refugees; greatly increased humanitarian assistance to help Mexican and Central American governments respond to the needs of migrants; and a ban on asylum seekers from Cuba, Nicaragua, Venezuela, and Haiti if they have crossed from Mexico without authorization – they will instead be returned to Mexico.
But he has also created a path for migrants coming from these countries to enter legally if they meet certain requirements, such as obtaining sponsorship and undergoing background checks. Another enforcement measure is a “transit ban,” under which migrants would be banned from applying for asylum in the United States if they have transited another country where they could have received safe harbor before arriving at the U.S. port of entry.
That Congress needs to adopt a comprehensive immigration reform policy is, of course, the real solution. But, given the deep divisions in Washington, that is not likely to happen soon. Hence, for the U.S. to promote regional collaboration is currently the best approach.
Ved Nanda is Distinguished University Professor and director of the Ved Nanda Center for International Law at the University of Denver Sturm College of Law. His column appears the last Sunday of each month and he welcomes comments at vnanda@law.du.edu.
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