Opinion: More Central American arrivals signal systemic problems in immigration enforcement

New Customs and Border Protection (CBP) data show the number of unaccompanied children and families arriving at the southern border during the first half of this year rival those seen in the record-setting year of 2014. If this trend continues, it may once again overwhelm the border and immigration systems, resurfacing serious questions about our ability to manage large-scale migrant flows.

Taking down the criminal middlemen is key, yet resources for investigation and disruption of these networks pale compared to the budget for the Border Patrol, detention, and removal.

- Theresa Cardinal Brown

Since Central American migration began in earnest in 2012, government agencies have struggled to meet the needs of the large numbers of migrants. Without additional emergency funding, they have been forced to reallocate resources from other functions and to create makeshift short-term fixes to simply process the arrivals.

However, as these cases moved into the immigration courts, it added backlogs to an already under-resourced system. Detained families and unaccompanied children are given priority processing in the courts to make their cases against removal, but their cases still may not be heard for a year or more. The delays result in many court no-shows, sometimes intentional, but often because the immigrant has relocated and doesn’t receive notice of their hearing, or because traveling a long distance to the hearing is impractical or impossible.

Additionally, there are many immigrants in immigration court, most notably unaccompanied minors, without lawyers. Statistics show that these cases can take twice as long to try and these immigrants, even those with a strong case for protection, are more likely to be removed.

In short, the system is neither efficient nor fair. Cases that deserve protection languish, and immigrants who do not qualify are allowed to remain in the country with few removals. Many “push” factors drive migrants away from crime and violence in their home countries, but the overwhelmed system is a “pull” factor that smugglers exploit to encourage migration. That results in a further backlogged system, and the cycle continues.

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The administration’s strategy to discourage migration has not had significant results so far. Detention of migrant families has been challenged in court, efforts at processing eligible migrants have fallen very far behind, and the prioritization of the court dockets has not sped up processing appreciably. Since January, DHS has also begun so-called “raids” to arrest and remove families that have been ordered removed, or minors who have since turned 18 and have no other case against removal. Advocates have denounced these raids, although fewer than 200 have been arrested and many of those have subsequently had their removal stayed.

All of this highlights deficiencies in the current immigration enforcement system to handle and to deter large migration events. Advocates on all sides of the issue do not believe the current immigration enforcement system is credible or fair: some immigrants have their civil rights violated by the institutions designed to protect them and others abuse the system to delay removal when they have no claim to relief. 

As the next summer migrant surge approaches, policymakers must look beyond the immediate crisis to the systemic reasons the current enforcement system is neither fair nor effective. Several areas are ripe for reform:

* “Back end” enforcement resources. Immigration courts, and those who represent immigrants in them, were woefully under-resourced even before the current arrival of thousands of migrants, especially when compared to the “front end” resources on the border. Due process should not cause delays, but allow for more fair and efficient processing of all cases.

* Resources to dismantle smuggling organizations. Migrants face life and death stakes, making them vulnerable to criminal organizations that both benefit financially in transporting them and often prey upon them during and after their journey. Enforcement aimed at the immigrants themselves is unlikely to address the root problem. Taking down the criminal middlemen is key, yet resources for investigation and disruption of these networks pale compared to the budget for the Border Patrol, detention, and removal.

* “Surge capacity”. Major migration events happen around the world on a regular basis, often unpredictably. Border and immigration systems have no reserve or “surge” capacity to respond to emergencies in ways that meet both humanitarian and security concerns. The need to plan—and pay—for such contingencies should be as important as planning for natural disasters.

Theresa Cardinal Brown is director of immigration policy at the Bipartisan Policy Center.

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