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.