1. Illegal crossings at our southern border have gotten out of hand. The only way to stop it is to physically seal up the border. And the only way to seal up the border is to build a wall.
Proponents of border walls have pointed to the impact of border barriers in urban areas as evidence for their effectiveness. For example, a 2020 release from the Department of Homeland Security argued that in areas such as San Diego and El Paso, illegal border crossings and apprehensions decreased after fencing was erected. However, evidence suggests that barriers in urban areas simply redirect migration to more remote and dangerous areas. A 2009 Congressional Research Service report found a “strong indication” that fencing had “re-routed illegal immigrants to other less fortified areas of the border” without reducing unauthorized immigration overall, and found numerous breaches and tunnels where there was fencing. “It stands to reason that even if border fencing is constructed over a significant portion of the land border, the incidences of fence breaches and underground tunnels would increase,” the report concluded.
Former President Donald Trump and Sen. Ted Cruz have pointed to Israel as an illustration of what could be accomplished in America, claiming Israel’s border walls have cut illegal immigration by “99.9 percent.” Indeed, at least in the case of the Israeli-Egyptian border, a wall has proven very effective at cutting illegal crossings. However, experts caution that the Israeli-Egyptian border is only 150 miles long in open, dry, accessible terrain, while the U.S.-Mexico border is almost 2,000 miles long through remote deserts and mountainous areas which complicate construction and enforcement.
A 2015 analysis by Steven A. Camarota for the Center for Immigration Studies (CIS), a think tank that advocates for lower levels of immigration, argued that a wall would be a cost effective solution compared to the cost of providing public services to undocumented immigrants, saving $64 billion over the next 10 years. Camarota’s methodology has been heavily criticized by the Cato Institute, a libertarian think tank, and the fact-checking website Snopes.
Firstly, Camarota relies on a statement by Sen. Mitch McConnell rather than an official cost estimate. While McConnell stated the cost of a border wall at $12 to $15 billion, the DHS later released an estimate of $21.6 billion, not including ongoing maintenance. Other estimates of construction costs, such as one from the MIT Technology Review, are as high as $38 billion.
Secondly, Camarota used questionable methodology to come up with his cost estimate for individual undocumented immigrants. While Camarota sourced data from a reputable report from the National Academies of Sciences, Engineering, and Medicine (NAS) that estimates the lifetime fiscal balance of immigrants based on level of education across multiple scenarios, the original authors of the NAS report objected to Camarota’s approach to their data (as quoted in the Snopes article above).
Additionally, since the NAS report only includes estimates for legal immigrants, Camarota turned to a criticized 2013 report by the conservative think tank Heritage Foundation to arrive at his estimates for undocumented immigrants (see criticisms from the Cato Institute, FactCheck.org, The Washington Post, and the American Enterprise Institute).
Overall, there is little to no reputable evidence that border walls effectively deter unauthorized migration; that they are more cost effective than other strategies for deterring migration; or that they deter smuggling. In a 2016 review of studies by the Migration Policy Institute, author Reece Jones found no conclusive studies on the deterrent effects of border barriers and concluded that border walls are “relatively ineffective” at stopping unauthorized migration and smuggling.
3. Diverting military funds and using emergency powers to construct a border wall is a bad idea. It shows defiance of Congress’s power of the purse.
- Referring to former President Trump’s intention to declare a national emergency on the southern border in a 2019 interview with CNBC, Senator Chuck Grassley said, “I think it’s a bad precedent. And it contravenes the power of the purse that comes from the elected representatives of the people.” The power of the purse, as outlined in the Constitution, delegates responsibility for raising taxes and spending public money to Congress.
- Michael McCord, who served as CFO of the Department of Defense during the Obama administration, wrote an article outlining several ways the appropriation of funds through the emergency declaration threatened the power of the purse, concluding that if he had been directed to implement the President Trump plan as CFO, “I don’t believe that I would have concluded it was legal and appropriate to do so.”
- However, as argued in an opinion piece by Nolan Rappaport for The Hill, the National Emergencies Act gives broad powers to the executive branch. Former President Trump utilized this to invoke 10 U.S. Code § 2808, which states when a national emergency has been declared, the Secretary of Defense may “may undertake military construction projects” as long as such projects are funded solely using “the total amount of funds that have been appropriated for military construction, including funds appropriated for family housing, that have not been obligated.”
4. If any person enters our country without permission for any reason, it is properly viewed as a criminal offense. This applies to everyone, including unaccompanied minors.
- 8 U.S. Code § 1325 designates an unauthorized attempt to enter the United States as a misdemeanor offense, while § 1326 designates unauthorized reentry of the United States after being deported as a felony offense. First enacted in 1929, prosecutions under § 1325 and § 1326 were infrequent until the 2000s. Since the beginning of Operation Streamline in 2005, a program that enabled courts to hear illegal entry cases en masse, the Bush, Obama, and Trump administrations each dramatically increased illegal entry prosecutions.
- There is strong international precedent for treating unauthorized border crossings as a criminal offense. A 2019 Library of Congress legal report found that 162 countries criminalize illegal entry, with potential punishments including deportation, fines, detention, community service, and imprisonment. Only 15 countries studied treated illegal entry as a civil or administrative violation, though the report added, “Even in these countries, however, criminal sanctions may apply if aggravating circumstances are present.”
- Proponents have argued that the ability to prosecute unauthorized border crossings is necessary for national sovereignty. In a Washington Post op-ed from 2019, Juliette Kayyem, a former assistant secretary of the Department of Homeland Security, wrote, “Whether the law’s existence changes an immigrant’s behavior is secondary to a nation’s interest in defining a baseline of desired conduct — a lawful immigration, including for asylum seekers — and by deeming a failure to abide by it as criminal behavior.” Critics point out that this argument holds the border to an inconsistent standard, since overstaying a visa is only considered a civil violation.
- Critics argue that unauthorized entry should be treated as a civil or administrative offense rather than a criminal offense. For their counterargument, see Theme 10.
8. In dealing with unauthorized entry over our borders, detention of those who are apprehended should be used only when other, less restrictive measures are not feasible. We should consider other possibilities, such as the Family Case Management Program that has been successfully employed in the past or, when appropriate, released immigrants on personal recognizance. We certainly shouldn’t be separating minor children from their parents or guardians for the purpose of detaining adults who have entered the country without permission. Detention should be used as a last resort.
- Lawmakers have argued that alternatives should be sought because detention is potentially harmful, especially to children. Cory Booker’s 2020 immigration platform cited a letter written to the Senate’s Whistleblower Protection Caucus by two physicians serving as “subject-matter experts” for the DHS’s Office for Civil Rights and Civil Liberties, saying, “In our professional opinion, there is no amount of programming that can ameliorate the harms created by the very act of confining children to detention centers.”
- There are also legal arguments to be made against ICE’s high detention rates. Joe Biden’s 2020 campaign platform cited a 2017 paper by Fatma E. Marouf of the Texas A&M University School of Law which examined potential legal challenges to ICE’s detention practices, including through constitutional arguments based on due process, equal protection, and excessive bail; disability rights arguments; and international human rights arguments. “It is crucial to remember that immigration detention is supposed to be nonpunitive and, therefore, should be based on civil, rather than criminal, principles. This is why deterrence is not a legitimate reason for immigration detention,” wrote Marouf.
- A 2019 report from TRAC (Transactional Records Access Clearinghouse), a research and data gathering organization at Syracuse University, found that six out of seven immigrant families released from detention showed up to their initial court hearing, a number which increased to 99.9% when families had legal representation. The report has been cited by many other organizations arguing against mandatory detention, as well as by Bernie Sanders’s and Cory Booker’s 2020 campaign platforms.
A 2010 report by the Detention Watch Network and the Stanford Law School’s Immigrants’ Rights Clinic, examined the precedent for ATD programs in other countries, including Australia, Canada, Belgium, Sweden, the Netherlands, Hong Kong, Thailand, and Indonesia. The report profiled Australia’s Community Care Pilot (CCP) program, which reported that between 2006 and 2009, “94% of participants complied with all of their reporting requirements and on average, more than two thirds of participants who lost their immigration cases elected to voluntarily depart.” The cost per diem for a migrant in the program was AU$ 39, as opposed to the per diem cost of detention at AU$ 125. Cory Booker cited the report in his 2020 immigration platform.
10. Entry into our country without permission is currently a criminal violation, though overstaying a visa is not. We do not need to treat unauthorized entry as a crime in order to protect our border; it can be handled as a civil violation, which already works for the vast majority of immigration adjudications.
- 8 U.S. Code § 1325 designates an unauthorized attempt to enter the United States as a misdemeanor offense, while § 1326 designates unauthorized reentry of the United States after being deported as a felony offense. First enacted in 1929, prosecutions under § 1325 and § 1326 were infrequent until the 2000s.
- Proponents of treating unauthorized border crossings as a civil violation argue that increased legal consequences since the Bush administration have not deterred migrants from making the journey across the border. A 2015 Department of Homeland Security Office of the Inspector General report found that, as in other areas of border security, inconsistent and incomplete data collection by the Border Patrol prevented accurate assessment of whether increased prosecution through initiatives like Operation Streamline prevented illegal entry or reentry. A 2018 report from researchers at the progressive nonprofit Vera Institute of Justice found “no statistical evidence of a deterrent effect for Operation Streamline.”
- Proponents also argue that prosecution of unauthorized entries has led to harmful unintended consequences, such as violations of the right to seek asylum, conditions that infringe on migrants’ right to due process, and an overburdened immigration court system. Opponents argue that these issues can be addressed without decriminalization through changing enforcement guidelines and prosecutorial discretion, although this could lead to further enforcement discrepancies between administrations.
- In his 2020 immigration campaign platform, Sen. Bernie Sanders cited a Washington Post article about the original architect of section 1325, Senator Coleman Livingston Blease, a nativist and white supremacist who sought to curb Mexican immigration while striking a compromise with agricultural interests. Proponents of decriminalization argue that the racial motivation behind the law continues to impose disproportionate punishment on Mexican and Central American migrants compared to migrants using other routes to unauthorized immigration, such as visa overstays.
- Proponents of the status quo argue that the U.S. should continue to prosecute unauthorized border crossing as a criminal offense. For their counterargument, see Theme 4.
21. Fear of gang violence or domestic abuse in one’s home country is not a sufficient reason to grant asylum. Asylum should be granted only to those who fear persecution by their government.
- United States law holds that an individual can only claim asylum if they have credible fear of persecution due to their race, religion, nationality, membership in a particular social group, or political opinion. Legal precedent over whether someone can claim asylum due to gang violence or domestic abuse has focused on the category of “membership in a particular social group.” In June 2018, contradicting previous precedents set in Matter of A-R-C-G- and Matter of A-B-, Attorney General Jeff Sessions issued a precedent decision that domestic abuse and gang violence were not grounds for asylum. “An alien may suffer threats and violence in a foreign country for any number of reasons relating to her social, economic, family or other personal circumstances,” he said. “Yet the asylum statute does not provide redress for all misfortune.”
- Specifically, Attorney General Sessions relied on the standards set in two previous cases. In their 1985 decision on Matter of Acosta, the Board of Immigration Appeals (BIA) established that claimants needed to demonstrate credible threat of persecution “inflicted either by the government of a country or by persons or an organization that the government was unable or unwilling to control.” Based on this precedent, the Seventh Circuit Court of Appeals decided in their 2000 ruling on Galina v INS that if a government itself isn’t responsible for the persecution, they must be shown to have “condoned it or at least demonstrated a complete helplessness to protect the victims.”
In June 2021, Attorney General Merrick Garland vacated Sessions’s decision on Matter of A-B-, returning to the original precedent set by the BIA in 2016. For more precedent and arguments in favor of granting asylum on the basis of domestic or gang violence, see Theme 24.
24. We should have a political asylum system worthy of our global role as a beacon of freedom and opportunity. This will ordinarily mean granting asylum to more than 100,000 applicants per year and adequately funding the enforcement and application adjudication agencies and courts. We recognize granting asylum is a selective process. However, fear of gang violence or domestic abuse and even the impact of climate change, such as extreme drought, are factors worthy of consideration. Denying asylum seekers an opportunity to apply at a U.S. port of entry is unduly harsh.
- The UNHCR’s 2010 issuance “Guidance Note on Refugee Claims Relating to Victims of Organized Gangs” clarified numerous ways that an individual fleeing gang violence can make a valid claim to the definition of “persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”
- The UNHCR issued guidelines in 2002 that clarified how an individual could make a claim to asylum or refugee status based on gender-related persecution, including domestic violence.
- Politicians like Bernie Sanders and Raúl Grijalva have emphasized that the right to claim asylum is protected under both domestic and international law.
- The Board of Immigration Appeals established precedent for allowing women to claim asylum on the basis of domestic abuse in their decisions on Matter of A-R-C-G- and Matter of A-B- (named for the initials of the asylum claimants in question). These were later overruled by Attorney General Jeff Sessions in 2018. An open letter to Sessions signed by Raul Grijalva argued that referring the case to himself undermined the independence of the immigration court system to interpret the law, writing, “Attorney generals rarely use the referral power, and when they do, decisions are typically narrow and often procedural in nature.”
- In his campaign platform, President Biden pledged to reverse Session’s rulings on asylum precedent. In June 2021, Attorney General Merrick Garland vacated AG Sessions’s decision on Matter of A-B-.
- For a summary of arguments in favor of denying asylum on the basis of gang and domestic violence, see Theme 21.