The Volokh Conspiracy

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How the Appropriations Bill Can Strengthen 'Remain in Mexico'


I recently wrote a piece for Lawfare on illegal immigration and the "compromise" appropriations bill that avoided another government shutdown. Here's the introduction:

While Congress and cable news chatter emergency powers and President Trump's wall, there's a far more important immigration fight under way on the southwest border. At a time when judicial deference to the executive on immigration law has nearly vanished, the country is one court ruling away from a disastrous immigration outcome. It was summarized this way by one Honduran caravan member, who traveled to the border because: "she had heard … that bringing her daughter would guarantee them admission into the United States."

She got it right—with one caveat. To avoid this outcome, the Trump administration is now telling applicants to wait for their asylum hearings in Mexico instead of the United States. That "remain in Mexico" policy, however, is fiercely contested and could be set aside by the courts tomorrow. If it is, anyone who crosses the border with a son or daughter will be more or less guaranteed admission, plus a work permit for some years, plus a realistic shot at staying in the country illegally for a lifetime.

I worked at the Department of Homeland Security (DHS) under President George W. Bush, and I played a large role in shaping and trying to pass comprehensive immigration reform legislation. I'm not a knee-jerk immigration restrictionist. But you don't have to be a restrictionist to think that it is bad policy to offer years of legal U.S. residence to anyone who can pass a background check and walk across the southwest border with a child in tow. There are probably a billion people around the globe who'd take that offer tomorrow. Worse, the policy effectively invites busloads of children and parents to cross without notice in some remote spots, swamping Border Patrol stations that were never built for child care. From a national security point of view, these mass border crossings are a major vulnerability; they can be exploited by smugglers who use them as cover to sneak in drugs and dangerous individuals elsewhere along the border while Border Patrol agents are busy handing out diapers and juice boxes.

So a lot depends on the Trump administration's effort to cut this Gordian knot of laws and court rulings with a "remain in Mexico" policy. A group of non-governmental organizations have already challenged the new approach in court, and they stand more than a decent chance of prevailing. Avoiding an adverse ruling will require creative lawyering and and aggressive international diplomacy on the government's part. In that effort, the administration may have gotten some unintended help from the drafters of the "compromise" appropriations bill that avoided another government shutdown. That, at least, is the thesis of this article.

Here's the rest: