We’re Having the Wrong Debate About the Border

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Senators Bernie Sanders and Elizabeth Warren speak during the Democratic presidential primary debates July 30, 2019, in Detroit.

The word “asylum” was spoken only six times during each of last week’s Democratic presidential debates. With a southern border more fortified than it ever has been, asylum is one of the primary ways migrants gain entrance to the U.S., and is responsible for the majority of the recent surge in border crossings. Indeed, the situation at the border can best be described as an asylum crisis.

While Democrats recognize that asylum is a legal process that the U.S. must by law provide, they don’t seem to realize just how many people need asylum. A working asylum system would need to function more efficiently, humanely, and—frankly—allow entry to a lot more people. Instead of addressing everything Trump is doing to prevent asylum seekers from accessing the system, Democrats have been focused on decriminalizing the border, a solution that only addresses some of the host of challenges in our immigration system.

Senator Bernie Sanders has proposed the main bill in Congress—which Senators Cory Booker, Kirsten Gillibrand, Elizabeth Warren, and Kamala Harris all endorse—to “decriminalize the border,” as well as provide health care to immigrants. Decriminalization, through repealing Section 1325 of the Immigration and Naturalization Act, has become the rallying cry of former HUD Secretary Julián Castro. Other candidates, including Ohio Congressman Tim Ryan and Montana Governor Steve Bullock, think that such a bill would encourage more people to come to the U.S. Ryan said that people should at least have to “ring the doorbell” in order to enter this country.

But the Trump administration is doing everything it can—through metering, third country agreements, and more—to make sure migrants and asylum seekers can’t get close to the front door.

Seeking asylum is not a domestic or international crime. “The asylum process is a real process, and this president is ruining it,” said former vice president and 2020 front-runner Joe Biden at the debates. Said Booker at the debates of the president’s asylum policies: “We are butchering our values.” Senator Elizabeth Warren gets it, too. “Laws matter,” she said onstage. “And it matters if we say our law is that we will lock people up who come here, seeking refuge, who come here, seeking asylum, that is not a crime.” She understands that Trump is trying to make seeking asylum a crime.

However, by focusing on decriminalizing the border without disaggregating asylum seekers from other immigrants, Democrats are allowing Republicans to frame the immigration debate. Trump is trying to end asylum—or at least complicate it out of existence. Yet Democrats are too busy talking about decriminalizing the border—which won’t necessarily end family separation—to pay specific attention to the demolition of asylum protections. Decriminalizing the border is only a small part of repudiating the Trump administration’s larger effort to block immigrants they see as undesirable from reaching the southern border.

Just last month, there were two new examples of the far-reaching Republican efforts to make migrants’ lives harder. On Thursday morning, South Carolina Senator Lindsey Graham rammed a bill on asylum through the Senate Judiciary Committee, breaking four Judiciary Committee rules in the process. Among other things, the bill would allow the administration to detain migrant children indefinitely, in violation of the Flores decision, a 1997 pact between immigration advocacy groups and the government that limits the detention of unaccompanied minors.

Vermont Senator and former Judiciary Committee Chair Patrick Leahy went on a tweet storm. “If ‘the cruelty is the point’ of the Trump administration’s immigration policies, allowing for the indefinite detention of children would be its poster child,” Leahy tweeted, adding that he tried to add an amendment to Graham’s bill removing the detention provision, but Graham would not allow it. As if to add salt to the wound, Graham even pushed for a resolution last week praising CBP agents for their work at the border.

The second recent example of Republicans punishing migrants is what’s known as the Public Charge Rule. The Department of Justice rule, piggybacking on an earlier proposed rule from the Department of Homeland Security last October, says that if the government deems a migrant likely to become reliant on public-assistance programs, it can deny someone entry to the U.S. or access to a green card, which allows lawful permanent residency.

Wendy Cervantes, director for immigration at the Center for Law and Social Policy, explained that she sees the Public Charge Rule as one of the bricks in the invisible wall the administration is building to keep out certain individuals, using administrative channels to create restrictions on the existing system.

“It’s basically their way of going around Congress to implement a merit-based system through regulatory change,” Cervantes says. Cervantes says that she expects the DHS to publish the final rule any day now. The rule would change the way that public-charge determinations are made. Adding that the rule was “very targeted,” Cervantes explained that if the government denies people the ability to remain, “you’re sentencing someone to fall into undocumented status.”

Many of Trump’s other efforts to block asylum attempt to bypass congressional statute or established administrative requirements, in a rush to implement the latest anti-asylum initiative. It’s illustrative of the lengths the administration will go to conceal their goals from public scrutiny.

The DOJ rule is not yet published, but is expected to be a “companion rule” to the DHS rule.

Asylum is international law, but the Trump administration is doing everything it can to block access to the American asylum system. Last November, Trump tried to ban asylum seekers who attempted to enter the U.S. between ports of entry, before it was blocked by a California judge. More recently, Trump tried another asylum ban, denying eligibility for asylum to anyone who passed through a third country before reaching the U.S. This too was blocked by the same court in California. But, undeterred, Trump then forced Guatemala’s hand in a safe third country agreement, which effectively forces asylum seekers from the Northern Triangle countries of Central America to apply for asylum in Guatemala instead of the U.S.

Buried in these anti-asylum policies are more ways for the Trump administration to continue and expand family separation. Reports announced last week that 900 more families were separated, despite a court order to stop the practice and reunite the families that had already been separated. Trump’s continuing efforts to block asylum—in line with white nationalist adviser Stephen Miller’s desires—have been found over and over again to be legally tenuous at the very least.

“The debate over the last five to ten years has split people [as] either you’re for immigrants or you’re for laws. That’s the trap Trump is trying to set,” says Philip Wolgin, managing director for the Center for American Progress Action Fund. “Trump claims to be upholding the law. It’s very easy to say, here’s how he has broken it.” What needs to happen, Wolgin explained, is for Democrats to advocate for a functioning system.

If Democrats continue to elide these issues, they allow Republicans to draw the parameters of the debate. To be successful on the immigration front, they need to remind Americans of international law, personal morality, and the country’s historical traditions on immigration, rather than easy xenophobia and finger-pointing. Republicans are turning their backs on the moral duty of protecting refugees, and Democrats have an imperative to oppose them. If they can’t explain it on the debate stage, they lose the rhetorical battle.

This article has been updated. 

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