Attempting to address undocumented migration and the southern border, the US has contorted immigration policy into a pretzel. This has happened because almost everyone has given up on comprehensive immigration reform. It is time to examine the world as it is and design an immigration policy to fit reality.
President Joe Biden came into office decrying Trump-era immigration policies that had created migrant camps in Mexico, separated families, and used immigration policy as a foreign policy weapon. But unwinding the Trump-era policies was harder than expected, in large part because going back to the previous system would not work.
The last major immigration reform in the US was in 1986 –37 years ago. Remember what was happening in the 1980s? Computers were just catching on, the Cold War ended (mostly), and the average monthly rent in the US was $385. These were different times.
Back then, undocumented immigration at the Mexico/US border consisted mostly of Mexicans, many of whom worked part of the year in the US and then returned home to their families in a cyclical flow. The big change in border migration in the 1980s was that Central Americans fleeing civil wars at home, made their way north.
Passage of the Immigration Reform and Control Act of 1986 (IRCA) was a bitter battle. No one involved in drafting the bill was thrilled with the outcome. It represented the compromise that could be reached at that time. Nonetheless, it recognized the reality that millions of people were living illegally in the US and that fact alone was bad for citizens as well as the undocumented. The 1986 reform established new pathways to citizenship and new punishments for employers who sought out undocumented workers that they could exploit.
It was not an idyllic time. New problems were created that still need addressing. For example, in the 1980s many Central Americans fleeing civil wars applied for asylum. While this was a time of death squads and massacres in the region, asylum approvals were in the low single digits. Asylum could have been used to address that migrant flow, but it was considered politically unsavory to grant asylum to people fleeing governments backed by the US during the Cold War.
Because asylum law was not used to protect those fleeing Central America, a stopgap measure called Temporary Protected Status (TPS) came into being. Today, more than 350,000 people benefit from this status, but it must be renewed (by nationality) every few years. TPS does not have a path to citizenship and is very stressful for the families who have “benefited” from this status for decades with the threat of deportation hanging over them.
Then there are a few million “Dreamers” brought by their parents to the US as undocumented children. Astonishingly, they are STILL waiting to have their status legalized.
In the last few weeks, the Biden Administration has announced more immigration stopgap measures. People crossing into the US between points of entry and requesting asylum will be presumed ineligible unless they have requested and been denied asylum in any other country they passed through. Contrary to international legal commitments, this restriction is already being litigated.
In other measures, those seeking asylum through legal border crossings, must seek an appointment online prior to entering the US, using the new CBP One mobile application. Some people report having tried unsuccessfully for months to secure an appointment. Mexico has become the waiting room for US asylum seekers.
As an incentive for legal migration, the Biden Administration has also announced new programs for families and sponsors in the US to bring people in under humanitarian parole. This is positive, but it is a status that will expire in a few years. Without comprehensive immigration reform you can see the next crisis from here – what to do with those awarded humanitarian parole, like the Afghans brought to the US when the US pulled out and their country collapsed. Right now, there is not a long-term solution.
Almost 40 years ago –more than a generation- has now passed. We live in a world that is vastly more mobile and connected, while US immigration law remains frozen in time.
In lieu of change, the US has created is a mishmash of stopgap measures that are constantly challenged in court. There is a way to greatly fix this –comprehensive immigration reform. Many will say that it is too politically complicated to achieve. I would say look at the twisted pretzel of a mess we have created by not doing comprehensive reform. How much harder can it be?
* Joy Olson is the former Executive Director of the Washington Office on Latin America (WOLA), a research and advocacy organization working to advance human rights. Twitter: @JoyLeeOlson
