In the twenty years that I have been practicing immigration law, only one topic has remained hot; Illegal border crossings of immigrants, the lack of a coherent government policy to deal with it, and the debate over the effects that this has on the U.S. economy.

First of all, there is one thing that we ALL agree on, regardless of political affiliation; The borders are porous and not sufficiently protected to minimize or eliminate illegal crossings. There are 1,954 miles of border between the U.S. and Mexico, almost two-thirds of the distance from the east coast to the west coast, and there are only approximately 70 official crossing checkpoints (known as “ports of entry”) along that border, where Customs and Border Protection (CBP) formally checks documents and decides whether individuals are eligible to enter or not. This is relevant because these ports of entry are where people can officially declare their intent to apply for political asylum. These individuals are the ones who should be allowed to have their day in court because they respect the process.

The problem was when the US, under the guise of protecting national health interests, had blocked formal access to the U.S. through these ports of entry, generating a bottleneck of tens of thousands of potential asylees living in squalor, makeshift tent communities on the border. Now that Covid is essentially behind us, the government needs to step up and process these people and give them a day in court to present their cases.

With regard to the great majority of those who enter the U.S. illegally, the U.S. needs to define its approach and stick with it. Right now, some are caught and released, while some are given the opportunity to claim asylum, and then given a court hearing date and allowing them to stay in the U.S. This “approach” makes no sense, is contradictory, and leaves the application of the law to CBP officers, giving them way too much power that can be abused and negating any chance of clarity and transparency.

The U.S. approach should comply with all international humanitarian laws. That means treating all people the same, which means having a uniform policy. In order to properly do this, it must have the requisite funding. President Trump wanted to build a wall, and proper funding is what kept that from happening. If President Biden and Congress refuse to build them, then the opposite of “Field of Dreams” happens – People DO come. So given that it looks like there will not be a wall that seals off 1,954 miles of border, the only choice is to decide what to do with those people who do not apply for asylum at the ports of entry. I say if we can’t protect our borders then every person that gets into the U.S. should be allowed to present their prima facie case and see if they pass their initial interview to establish a well-founded fear of persecution. This means hundreds of thousands of new cases to process, and a backlog of people in the system, which will drive our immigration backlogs up and create the need for even more additional funding.

No more in-between, mix-and-match policy that is a walking contradiction. If Vice President Harris’ first words in an international forum are an accurate reflection of this administration’s true sentiment towards the migrants intending to enter the U.S. then the policy in place should reflect one of no mercy, no humanity, no chance for migrants, even those whose cases clearly qualify for asylum under our existing law. In case you missed it, she said “Don’t Come”, a message pointed at Guatemalans and other Central Americans thinking of making the dangerous pilgrimage to the U.S., and so that seemed to set the tone for the stance this administration would have with regard to this issue.

As an immigration attorney, I hope for a transparent and fair system that is based on consistent principles. If this country wants to actually achieve that, it must be consistent. If the government thinks just telling people not to come will reverse the wave of intending immigrants from crossing Central America and Mexico to get to the US, they are dead wrong. If they don’t want people to cross illegally, they must build a wall to not allow that to happen. If they refuse to build a wall, they need to decide whether they are going to follow basic human rights norms and allow people to present their asylum cases or not. If they don’t, then they are complete hypocrites. You can’t have it both ways.

Whatever the Biden administration and the US congress decide, their actions and words must be consistent, so that immigrants and immigration lawyers, and everyone in between, understand what is allowed and what is not, and this country’s leaders can begin to not look like a collectively confused and contradictory bunch of clowns.

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