Immigration Reform Will Require Americans to Design Legal Pathways and Asylum


When I visited McAllen, Texas, in 2018, the standoff at the U.S.-Mexico border was starting to feel like DEFCON 1. The Trump administration had imposed a “zero-tolerance policy” and was separating children from their parents. Much of America, and the world, was horrified. And that was kind of the point. The logic of family separation was simple and brutal: Make it terrible to come to this country so that people will stop coming. I saw the human toll of this approach written on the faces of detainees as I peered through the chain-link fences at a Border Patrol processing facility in the Rio Grande Valley. Tough but effective, the policy’s defenders might argue—except the strategy didn’t work. Border “encounters,” in which authorities detain or expel someone arriving at the southern border, rose for much of 2018 and spiked in 2019.

Fast-forward to January of this year and President Biden’s trip to El Paso—a calculated show of strength. The president has been playing defense on immigration for his first two years in office. Family separation formally ended in the summer of 2018 and, with Trump residing at Mar-a-Lago rather than the White House, talk of a “big, beautiful” border wall has faded. But the fearmongering about migrants that Trump unleashed lives on. Some U.S. politicians now speak about people who want to come to this country almost exclusively as hordes of invaders bent on destroying America. The governors of Texas and Florida have taken to busing and flying new migrants to northeast cities to stick it to the libs. Right-wing pundits, meanwhile, have relentlessly accused the Biden administration of enabling a full-blown border crisis.

With Biden enjoying a surge in approval numbers and fresh momentum from his party’s success in the midterms, the White House decided it was the right moment to confront the situation. Biden used his trip to trumpet a new immigration plan—that was really a variation on a Trump policy. And in the process, he satisfied almost nobody. A couple of weeks later, 77 House and Senate Democrats sent Biden a letter criticizing his new plan.

If you take a step back from the political theater, it’s easy to view the MAGA-ified war on migrants as an updated version of the same noxious nativism that’s ebbed and flowed since the founding of this country. Democrats, meanwhile, enjoy their lofty rhetoric about America being a nation of immigrants. But they mostly avoid talking about the border, and they’re leaking support in historically blue precincts like the Rio Grande Valley where communities are overwhelmed by the influx of immigrants.

The U.S. hasn’t had true immigration reform since 1986. And we’ve scarcely even tried since 2014, when a bipartisan deal to fix the legal pathways for immigrants in exchange for increased border enforcement failed. Meanwhile, since March 2020, presidents Trump and now Biden have relied on a 78-year-old public-health statute called Title 42 that was invoked during the pandemic to essentially close the border.

Biden’s new policy still incorporates Title 42. It will allow up to 30,000 refugees per month from Cuba, Nicaragua, Venezuela, and Haiti to be admitted if they apply from home and pass a background check, while quickly expelling those who arrive at the border seeking asylum. It’s a step forward. (A newer Biden policy with stronger echoes of Trump’s hardline approach, announced after this article went to print for the March Issue, is less so. While administration officials have defended the move on the basis that it’s not a full asylum shutdown—migrants can use an app to secure a limited number of daily appointments to apply for refuge, and some with acute medical or safety concerns will be admitted—it does not provide a parallel legal pathway like the program created for those fleeing the four countries above.) As an adjustment to an emergency pandemic policy, that first policy is hardly a long-term fix—as Biden himself agrees. The changes “will make things better,” he said when unveiling the new policy, “but will not fix the border problem completely.” So, what will?

Let’s start with a fundamental fact: people want to come to America, and they’re going to come whether or not we design legal pathways for them. Until we recognize that, things won’t improve. Not everyone sees it that way. A group of 20 Republican-led states are suing to block Biden’s new program and retain an enforcement-only approach. But that strategy only makes it harder to patrol the border. “People aren’t given the chance to apply for asylum, so they just keep trying,” says Kate Lincoln-Goldfinch, an Austin attorney who works asylum cases. “They come over and over and over again, and that raises the rates of border apprehensions falsely.” People who trek 1,000 miles in search of safe harbor aren’t easily turned away. We need more immigration judges to hear their cases along with a system that encourages them to apply before making the journey.

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The last few years are proof that people are going to keep coming, even if we make it dangerous and horrible for them.

PAUL RATJE//Getty Images

Of course, asylum seekers are just one part of the bigger equation. What we think of as “immigration” is really at least five separate, complex issues: border enforcement; visas for employment or school; visas to join family; humanitarian visas; and dealing with the millions of people who already live and work in the U.S. without papers. Lumping all of these disparate processes together and yelling at each other about it on TV and Twitter might be good for ratings, but it isn’t productive.

It’s also just bad for business. Here’s another fact that gets lost in all the heated debate: America desperately needs more immigrants. “There are about 300,000 more job openings in Texas than there are unemployed people,” says Ray Perryman, an immigration economist in Dallas. “Nationally, there are millions more job openings than the number of unemployed persons.” The pandemic played a role in driving people out of the workforce, but the U.S. was facing shortages already. “The recent census revealed that there are about one million fewer persons under 18 years old in the U.S. than there were ten years ago,” says Perryman, “and birth rates have been at or near historic lows in recent years.” With the baby boomers hitting retirement, we’re running short on workers to support Social Security. It’s not a pretty picture. Just ask Japan.

Despite recent layoffs in the world of Big Tech, the labor market remains snare-drum tight, with unemployment hovering at a 50-year low. That has begun to drive up wages even at the bottom of the job market. Some on the labor left argue that immigration drags down wages for U.S.-born workers. But Perryman says there isn’t much evidence to back that up. It’s more likely that undocumented labor brings down wages, because these workers can be exploited to work more hours for fewer dollars. That’s another argument for hammering out a common-sense plan. “We don’t have a quick way for people to come and work for low- or even medium-skilled jobs,” says Lincoln-Goldfinch, the immigration attorney. “That just doesn’t exist.”

Under Biden, U.S. Citizenship and Immigration Services has proposed raising fees that employers must pay for some visas, including for short-term or seasonal workers who are essential to the agricultural sector. In part, that’s to offset the cost of processing refugees. But it adds more friction to a system that already needs streamlining. “America’s farmers and ranchers are short more than 100,000 workers,” said Senator Michael Bennet (D-Colo.) in December after introducing a bill that would expedite these H-2A visas.

“The recent census revealed that there are about one million fewer persons under 18 years old in the U.S. than there were ten years ago.”

By not making it easier for these foreign workers to enter the country, we’re only adding to our problems. Many would be happy to return home when the seasonal work is done, but uncertainty about the system leads some undocumented people to stay in the U.S. permanently out of fear they won’t be able to get back if they leave.

That brings us to the millions of undocumented people already living here—working hard, staying out of trouble, paying taxes—who’d like to come out of the shadows (and pay more taxes). There’s a provision in U.S. law called “registry” that recognizes that people of good moral character who arrived many years earlier should be able to legalize. Congress used to regularly update the cutoff date for this amnesty, but the last time it did so was 36 years ago. (The president who signed that law was a leftist named Ronald Reagan.) Under current law, a person would need to have lived in the U.S. for more than 50 years to qualify. Updating the cutoff would be a quick fix with huge benefits. “It would be a one-line bill,” says Don Kerwin, executive director of the Center for Migration Studies.

Does it stand a chance in the current Madhouse of Representatives? Doubtful. But we need to come to grips with reality one way or another. There are options available to us beyond cruel, empty stunts.

This article appeared in the March 2023 issue of Esquire

Headshot of Jack Holmes

Senior Staff Writer

Jack Holmes is a senior staff writer at Esquire, where he covers politics and sports. He also hosts Useful Context, a video series.


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