Apprehensions at the southwest border  reached their highest level in more than a decade this fiscal year. That number is still much lower than the highs of the early 2000s, and declined precipitously over the last few months. Still, the sharp rise is worrying. A working immigration system should deter illegal immigration rather than encourage it. So how can the administration effectively dissuade illegal immigration?
Let us look at the costs and benefits facing potential immigrants. Our overwhelmed immigration court system currently provides a major incentive to cross illegally. The immigration court  backlog has doubled since the start of this administration, from roughly 500,000 cases to over one million cases, with wait times averaging 1,450 days before a hearing is scheduled. This backlog creates capacity shortages in detention centers, as the government cannot indefinitely detain every person awaiting a court date. With the knowledge that they will likely be released for a significant period of time awaiting a disposition, many aspiring migrants have an incentive to cross illegally and claim asylum.
Hiring more immigration judges would be the simplest way to cut into future backlogs. A report from the Bipartisan Policy Center notes that while Congress has authorized up to 700 new immigration judgeships , hiring has not been able to keep pace. Other technical fixes could help cut the logjam. A report from the Migration Policy Institute recommends allowing asylum officers to issue final removal decisions  to those asylum seekers who pass their initial “credible fear” screening, rather than send them through the already bottlenecked court system.
Both proposals would require upfront staffing expenses, but the costs avoided by reducing the backlog, not to mention the weight lifted from migrants living in legal purgatory, would far outweigh them. A recent proposal from Heritage Foundation recommends allowing immigration judges to weed out meritless cases  like other federal judges. This policy would have the dual benefit of deterring frivolous asylum claims while rewarding those migrants with legally compelling cases, and could substantially reduce the immigration court backlog.
Unfortunately, political stagnation may prevent such a legislative fix. The administration has so far used punishment, a sometimes useful but blunt tool, as its only means of deterrence. Many of these policies are of little to no deterrent value given that the costs of returning to wartorn home countries are higher than any punitive measures. One example is the “zero tolerance” policy, which mandates prosecutors to pursue criminal cases for all immigration offenses brought to them. Traditionally, prosecutors could refuse to take low level border crossing cases that could be more effectively managed in the civil system, which still levies serious penalties including deportation and fines. However, the White House removed this discretion in an attempt to deter illegal immigration.
Unsurprisingly, multiple studies , including a review from the Department of Homeland Security, show no deterrent effect from mandating criminal prosecutions for entry offenses. Instead, zero tolerance carries harmful unintended consequences. Because prosecutorial resources have been diverted to the record numbers  of low level illegal entry cases, drug trafficking and human smuggling prosecutions have plummeted, and prosecutions of other federal crimes dropped in response.
Many of those now facing criminal prosecution could have otherwise cooperated with law enforcement to offer evidence and intelligence against smugglers and cartels, as last year only 2 percent of illegal border crossers had any criminal history  aside from illegal entry. But excessive prosecutions have reduced the pool of potential witnesses.
That is not to say punishment is out of the question. Prosecutors have discretion to pursue illegal entry cases for individuals with dangerous criminal backgrounds, and policymakers could increase penalties for smugglers and cartel members who put migrants in harmful or fatal situations. But criminal sanctions on nonviolent border crossers, who oftentimes come in family units, is not an effective deterrent or prudent use of taxpayer resources. Luckily, Congress has tools at its disposal to solve the immigration backlog crisis. It just has to use them.
- “southwest border”: https://www.cbp.gov/newsroom/stats/sw-border-migration
- “immigration court”: https://trac.syr.edu/immigration/reports/579/
- “immigration judgeships”: https://bipartisanpolicy.org/wp-content/uploads/2019/07/Central-American-Migration-Challenge.pdf
- “removal decisions”: https://www.migrationpolicy.org/article/remain-mexico-plan-echoes-earlier-us-policy-deter-haitian-migration
- “meritless cases”: https://www.heritage.org/immigration/commentary/give-immigration-courts-these-2-tools-reduce-the-backlog
- “multiple studies”: https://www.law.berkeley.edu/files/Operation_Streamline_Policy_Brief.pdf
- “record numbers”: https://tracfed.syr.edu/results/9x705ca4f827a2.html
- “criminal history”: https://www.cbp.gov/newsroom/stats/cbp-enforcement-statistics-fy2018