Despite some claims on cable news that President Joe Biden was “caught off guard” or “completely unprepared,” his administration foresaw the growing number of unaccompanied child migrants at the southwestern border. I worked in Barack Obama’s White House during a similar surge in 2014. After the November election, I served on the Biden transition team, helping prepare the new administration for challenges like the present one. But predicting a problem is not the same thing as having the right tools at your disposal. As it tries to clean up the enormous mess that Donald Trump left behind, Biden’s two-month-old administration is hamstrung by immigration laws that haven’t been updated in years, by a shortage of resources necessary to process border crossers, and by unrealistic expectations among immigration opponents and immigrant advocates alike.
The fundamental questions of American immigration—who should be admitted legally, and who deserves protection when fleeing danger—are matters for Congress to answer. But the rules governing legal immigration into the United States haven’t been updated since the 1990s, when email was a new medium and Google didn’t yet exist. When migrants arrive at the U.S. border today, the executive branch’s job is to distinguish those who might qualify for protection under our asylum laws from economic migrants with no legal ability to stay.
In practice, administering these laws is thankless work that presents an endless set of miserable, heart-wrenching choices. The Trump administration did not maintain enough shelter beds for children arriving at the border, so where to relocate children languishing in Border Patrol lockups? Building new shelters takes time, and facilities that can be established quickly will not meet the high standards of longer-term shelters. But the existing lockups are terrible places for children, so how good of a shelter is good enough when hundreds of children at the border are awaiting placement? Even when a family member agrees to take custody of a child, how rigorous should the process be to make sure that person is truly a relative and not a human trafficker? How to balance the need for swift family reunification with the need to make sure children are safe?
The current border infrastructure, including the buildings where the Border Patrol carries out its work, was designed for a time when the main challenge was individual adults coming from Mexico who were trying to evade U.S. authorities. The people approaching the border now are much different; they are families with children coming from Central America. A shockingly large number are unaccompanied children—that is, children who are traveling with smugglers or are utterly unsupervised. When I served in government, I met some unaccompanied children as young as 7. I will never fail to be shocked at those who would have the United States of America turn away a child who arrives alone; surely the past four years have not depleted our souls that much. But the Border Patrol has neither the training nor the facilities suitable for children.
The Trump administration tried to substitute a wall and flagrant brutality for competent management of migration trends that have been developing for more than a decade. Trump left tens of thousands of asylum applicants to languish in squalid camps in Mexico. The Biden administration, in contrast, is continuing to bar economic migrants while slowly letting asylum seekers enter to process their claims.
The political pressures are building. On the right, immigration restrictionists would have Biden refuse entry to migrant children—leaving them on their own and in great danger—to make a point about how tough the U.S. is. Trump and his followers presumed that enough brutality would scare would-be migrants away. It didn’t. His administration took migrant children from their parents, horrifying the world—while also failing to deter migration.
The Biden administration, even as it does the right thing by accepting and protecting unaccompanied migrant kids while their cases are processed, faces criticism from immigration advocates who project confidence that 100 percent of migrant families are fleeing danger and deserve asylum. As worthy of sympathy as these families are, we live under a system of laws that doesn’t provide for their needs unless they meet a high legal standard. As a matter of law, America’s borders are not open. Not everyone who comes is legally entitled to stay. Even under a pro-immigration president, officials will reject some border crossers outright, and remove some later if their asylum case ultimately fails. Officials will also deport people from the interior who are not authorized to be in the United States. Yet to my frustration, many of my friends in the immigrant-advocacy community will not help shape these decisions; most are unable or unwilling to name any category of migrant who should ever be returned.
Full disclosure: I worked as an immigration advocate for decades and, after joining the Obama administration, faced criticism for serving in a government that deported people in substantial numbers. I accepted the reality that, until Congress decides to change immigration laws long overdue for revision, officials will be legally required to enforce them. The issue is not whether to obey the law, but how. We spent years developing new approaches for enforcing the statutes on the books: Recent arrivals and people convicted of serious crimes would be prioritized for deportation, while we eased up on undocumented people who had lived peacefully in the United States for years. The result was far more humane than what had preceded it. Hard policy decisions are better made with input from people who care deeply about the lives at stake.
Oddly enough, the long-term policy choices confronting the nation are much easier than the operational ones the Biden administration faces now. The United States will never be able to address the refugee crisis in our backyard with the measures we take at the border. Biden is working to reestablish American refugee-processing capabilities in Central American countries so that those truly fleeing for their life can get to safety without having to rely on smugglers to bring them on the dangerous trip through Mexico. The ability to seek safety without journeying north, combined with faster asylum processing for those who have made the trip, will help those who have a legitimate claim get answers quickly and get on with their life. Those who have traveled but do not succeed with their asylum case should be returned—in as compassionate a manner as possible—to their country of origin.
What the government owes the American people—and the people arriving at the border—is a process that is fair, orderly, and humane, one that comports with our laws and our values. That might seem unlikely now, as Biden’s administration grapples with the mess left by his predecessor, but a better system is eminently achievable.