"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
Julia Toepfer National Immigrant Justice Center (“NIJC”)
Since the 1990s, U.S. immigration policy has centered the goal of decreasing or “deterring” migration. These policies are designed with one goal in mind – punishing people for the act of migration with such cruelty that the harsh measures themselves will deter future migration.
Not only does this strategy not work, but it has deadly human consequences.
The devastating toll of deterrence programs came into full view with the recent tragedy in San Antonio, Texas, where 53 migrants died in the back of a tractor-trailer after attempting to enter the United States. Human rights experts, including NIJC, responded by emphasizing the urgent need to shift away from programs that block lawful pathways to entry or push people toward dangerous terrain.
Nonetheless, the U.S. government continues to double-down on policies and programs aimed at deterring migration. Some recent examples include continuing the Trump-era Remain in Mexico and Title 42 programs, and increasing the use of criminal prosecutions to punish migrants alleged to enter the country without authorization. Here are updates on each of these programs since we last reached out to you about them, along with ways you can demand that the U.S. government restores access to asylum and stops punishing people for migrating:
➡️ Recently, the Supreme Court ruled that the Biden administration could end the Remain in Mexico program, and it’s now time for the administration to follow through. Also known as the Migrant Protection Protocols (MPP), this program has forced more than 75,000 people to wait in dangerous conditions in Mexico while their claims are pending in U.S. immigration courts. This program defaced basic principles of due process and decades of U.S. commitment to protect people from harm and persecution. NIJC continues to represent dozens of asylum seekers who were subject to the program, including some who are still waiting in Mexico. Sign the petition calling on President Biden to end Remain in Mexico.
➡️ Border Patrol just released new data showing there have been 2,132,711 expulsions of people seeking safety at the U.S. border under Title 42, the vast majority of which happened under the Biden administration. The Trump administration implemented Title 42 under the guise of protecting public health during COVID-19, but the real goal was always to block Black, Brown, and Indigenous people from migrating to the United States. There have been nearly 10,000 documented cases of kidnappings, rape, torture, or other acts of violence against people who were expelled under Title 42. Yet, right now, some members of Congress are trying to pass legislation that continues this policy indefinitely. Tell your members of Congress to end Title 42 and oppose all efforts to continue it indefinitely.
➡️ The Biden administration is ramping up the use of criminal prosecutions to punish migrants arriving at the U.S. border, despite decades of evidence showing these prosecutions don’t work to deter migration and cause widespread harm. The increased use of such prosecutions flies in the face of the administration’s commitments to racial equity and to a more humane approach to migration policy. Criminal prosecutions do not stop people from crossing the border, but instead have caused widespread harm, separated countless families, and undermined asylum rights. Check out NIJC’s latest blog post explaining five ways that immigration prosecutions are deadly and ineffective.
NIJC knows, from years of representing immigrants and asylum seekers, that punitive border policies do not deter people from fleeing violence or seeking to reunite with their families.
Above all, immigration policies focused on deterrence inevitably and tragically cause countless deaths and untold human suffering. The U.S. must abandon a deterrence strategy, reopen ports of entry for asylum screenings, and embrace a humanitarian approach to immigration – it’s the only way to end systemic injustices, reduce mass incarceration, and protect fundamental human rights.
Thanks for joining us to get there.
-Julia Toepfer
National Immigrant Justice Center
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“Maximum deterrence programs” have little empirical support. Human migration, a phenomenon as old as humanity, is largely driven by powerful forces beyond whether a rich country has built walls, prisons, unfair legal systems, and other artificial barriers to “deter” migration. At best (or worst, depending on how one looks at it) these “gimmicks” and the predictable accompanying “rhetoric of hate, dehumanization, and rejection” nibble around the edges of migration patterns.
But, they are deeply rooted in the racial history of the U.S., and play a major role in the White Nationalist mythology that surrounds deterrence.
A smart nation might harness, take advantage of, and direct the flow of human migration. Ultimately, failed deterrence gimmicks will inflict cruelty and cause the death of some migrants. They also diminish the reputation and diminish the humanity of the “destination nation.”
But, they won’t stop folks from leaving intolerable situations to seek a better life elsewhere — no matter what the odds, risks, or hardships. And, they eat up money and resources that could actually be directed into building more realistic legal migration systems that would benefit both the migrants and the receiving countries.
