Yes, the border is crazy, but not how they are telling you.

Sunday, October 23rd, 2022
By: Jonathan MontagJ.D.

Lot’s of people are coming to the border. There are the old favorites; Mexicans, Guatemalans, Hondurans, and El Salvadorans. There are Haitians, and Syrians and a smattering of everyone else. And now newcomers or surges of old faves. We have Cubans, Venezuelans, Nicaraguans, Ukrainians, Russians, and Afghanis. What is a country to do? How to handle the flow?

First, the nonsense solutions – bar their entry, delay (meter) their entry, arrest them and lose their children – a hoped-for disincentive to coming here, sending them to Martha’s Vineyard, or creating such confusion that the newcomers will not know where to go and what to do and will end up afoul of the law and deported.

Then there are the long-term solutions – arrange for asylum seeking from abroad, allowing for temporary admission, providing aid to troubled nations to stop the outflows by reducing push factors. Some are laudable policies but certainly not immediate solutions. Some are impossible goals with dim prospects for success. Is America really going to teach democracy and human rights to Guatemala and Honduras, especially now when America is on the verge of losing its own democracy and human rights? Even with a less divisive political environment, American nation building generally has not been a successful enterprise.

Problems without easy solutions are facts. What do we do about these facts? The Biden administration, with its old-fashioned senses of morality (not separating children from their parents or condoning the shooting at or whipping of intended immigrants) and adhering to the law for the most part (allowing people to apply for asylum, though Title 42 is still lurks), is doing what it can by processing arrivals, creating programs for Venezuelans, Ukrainians, and Afghans, and trying to forge international cooperation. All to deal with an intractable problem.

Because of economic and political problems, organized crime, and climate change, fleeing wherever you are is an international phenom. Even in countries with some renown for humanity to those seeking refuge, electorates are fed up. (The U.S., Australia, United Kingdom, Denmark, Greece, Hungary, Sweden…, countries where immigration is a huge political issue ought not take these refugee flows so personally)

The three big challenges with solving the problem of refugee flows to the United States are, one, that the push factors driving emigration are growing while, two, asylum law is often inapplicable to these push factors, and three, our procedural laws are inappropriate for the population flows.

People are fleeing war zones, drought, and other climate emergencies. People are fleeing abject poverty and crime. U.S. refugee law allows for the protection of people fleeing persecution based on five nexuses – race, religion, nationality, political opinion, or social group. Poverty, war, climate disaster, and gang violence are not among these five nexuses. Legitimately fleeing for your life because your village is being shelled, your children have no food, and gangs are pillaging are not bases for refugee protection. Sometimes the results are anomalous. A neighborhood gang’s raping someone’s daughter is most often not a credible claim. A daughter’s having her labia majora removed often is. A Ukrainian fleeing a fear of Russian occupation is likely not a credible claim, while a man fleeing Russian conscription likely is. Calling asylum claims based on suffering like this bogus, as critics do,  distorts what is going on. The claims are not bogus, the notion that the United States will protect anyone truly desperate is what is bogus. The simple fact that a person will die if they return to their country is not a basis for asylum. Why they will die is all-important.

As for the inappropriate procedures in our immigration system, under our laws a person coming to the border with an asylum claim is supposed to be screened to determine if there is a credible asylum claim and if there is one, send them to immigration court. Border authorities can forego the interview and send asylum seekers directly to immigration court. However, because of the volume of applicants and difficulties in scheduling court dates, these court summons are not always being issued and certainly not promptly. Once the case is designated an immigration court case, only the immigration court can hear the asylum case. Many people are thus languishing while waiting for a court date so they can file an asylum application. And because of the lack of initial screening, people with non-viable claims in our system which provides relief to a limited few clog the strained system because their fear of persecution and death are for the wrong reasons.

The entire world together is going to have to address the actual reasons why so many people are on the move and develop new forms of relief and bases for relief. New processes (the Biden administration has initiated a new system to try to speed up asylum cases ) will need to be devised to fairly and humanely address this unfortunate global phenomenon. Guns, whips, and cruelty (and flights to New England resort towns) will not change the facts or solve the problems. Posted October 23, 2022.





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