Can You Shut Down A Border?

Austin Kocher on navigating “the immigration debate” in an election year.

Today’s interviewee is Austin Kocher, research assistant professor at Syracuse University and a researcher at TRAC. Send him your questions on immigration.

This interview was conducted and condensed by Tatti Ribeiro for franknews.

My name is Austin Kocher. I'm a research assistant professor at Syracuse University and a researcher at TRAC. We study the federal government using FOIA requests and litigation. A big area of our focus is immigration, and that is definitely what I focus on mainly.

As we look ahead towards the upcoming election, how can we understand presidential power as it applies to immigration?

Sure. I mean, presidents in the United States have a lot of power, and that power has expanded pretty dramatically in the last however many years. Especially because Congress hasn't been able to function in quite some time, the executive takes on even more importance than before. It's still true that Congress makes the laws and the executive enforces them, but the president can now justify some of their executive authority because of the lack of congressional action. 

President Obama justified DACA through the fact that Congress was unable to act on immigration. President Trump did the same. I think one of the interesting consequences of the Trump administration is that because they were so flagrant in their use of some of their executive authority in things like Title 42 and family separation they actually saw a lot of pushback in the federal courts and even the Supreme Courts. They ended up generating a fair amount of precedent in terms of what the courts will tolerate and not tolerate.

To be honest, when it comes to immigration policy and Congress, including the present immigration bill, I simply don't follow it that closely. I just don't have the time to follow a legislative body that doesn't actually get anything done. So it's a lot of sound and fury at the moment.

A few weeks ago President Biden said he’d be eager to use his executive power to shut down the border — what does that mean? What does 'shut down the border' mean?

No one knows. <Laugh> This is a campaign year, and everything has to be taken in the context of soundbites and electoral campaign strategy. Biden is light years away from the immigration policies that he ran on in the 2020 election, where he attempted to contrast himself heavily with President Trump. There's almost nothing that the Biden administration would give up to Congress that the Trump administration wouldn't have also given up. His claim that he'll shut down the border, given the authority, it's very interesting. It's not clear to me that the law even allows that or that the president could ever do that. The US government has never, ever been able to have what the law describes as "operational control of the border." 

That is, more or less, total control over who comes in and out. That's just a fantasy. Justice Alito, in one of the Supreme Court's rulings, said that it's just implausible that the US government would be able to achieve anything like that. I certainly don't take President Biden literally or seriously when he says that he would use his powers to shut down the border. It's sort of campaign fluffery. Sure, I could see President Biden implementing new, and what some people would refer to as, draconian policies to prevent people from coming into the country if they were to agree on a bill, but at the moment, it's not something to take seriously. I don't take it seriously and I don't think anyone else should either.

We've talked extensively about Title 42, but after the policy expired, the number of border apprehensions dropped by like 40% within a few months. Could we clarify what the significance of Title 42 is and its current status?

Title 42, originating from Title 42 of the US Code, is a public health measure. While technically separate from immigration policy, Title 42 does intersect with it. This section grants the government authority to restrict entry based on public health concerns, and under the Trump administration, this authority was invoked within the context of COVID-19 policies. Its primary effect was to block asylum seekers from accessing the asylum system. This could be considered the closest the US government has come to achieving "operational control.” I think most people get that at this point.

The answer is that there's no reason why it couldn't. In the absence of a global pandemic, I could easily envision an administration justifying the use of Title 42 by invoking biological threat narratives. They might argue that without proper screening, individuals could potentially introduce unknown illnesses into the country— and that is a really dangerous narrative.

Can we talk a bit about parole? 

Yeah, of course. I mean, parole is both a term of law and a term of art. Parole essentially grants the President the authority to permit individuals to enter the country temporarily for humanitarian reasons, waiving certain requirements. Historically, humanitarian parole has been utilized in more limited circumstances, such as medical emergencies along the border. Cities like Tijuana and San Diego, Juarez and El Paso, share close ties, with people living and working across them. In situations like car accidents where the nearest hospital is across the bridge on the US side, those individuals might be paroled before returning. What the Biden administration has done is expand that use of discretionary authority at a scale that we've never really seen before.

Now, it's not true, as some Congressmen have very irresponsibly claimed, that parole has hardly ever been used. We recently did a very comprehensive study on parole, and we found that between 2014 to 2024, it was used each year somewhere between 28,000 times a year and 110,000 times a year. That's including under the Trump administration. It's been used during every administration. There's nothing that controversial or unusual about it, but I think the Biden administration, given the humanitarian needs of migrants arriving at the US-Mexico border, has decided to implement the practice of using parole authority to allow people to come into the country lawfully, and then pursue their asylum claims. The thing is, if we create this kind of systematic channel into the country for lawful reasons we anticipate this is going to create an incentive for people going that way instead of crossing the border unlawfully. At the same time, they implemented policies that strongly discourage immigrants from crossing unlawfully to get access to asylum, which is somewhat legally questionable.

Many of the people paroled into the country have not come through the US-Mexico border. Many come in through airports. They've been granted parole and allowed to fly into the country. Despite that, there are still a lot of unlawful crossings. So both things are true: there are a lot of paroles, and there are still a lot of unlawful crossings and a lot of arrests by border patrol. How someone might interpret all of that is up to their politics, I guess. But, that is how parole has been working as of right now.

Why are people suspicious of parole?

The criticism of parole is basically that parole was not designed to be used in this way, and that the use of parole in this way undermines the asylum system and is an unprecedented expansion of executive authority. I think it's interesting, you know, personally, in general, I would like to see a more constrained executive from a constitutional and legal perspective, and that cuts both ways. But what's a little peculiar about this criticism of the Biden administration is that during the Republican presidency, Trump also dramatically expanded the exercise of discretionary policymaking around immigration, such as the "Muslim Ban" or Migrant Protection Protocol protocols or Title 42. Both parties are critical of the other abusing authority when they're in power, but then turn around and do the same thing. I think that's simply an expedient argument. I don't know that we can expect politicians to be consistent between administrations, especially when there's a party change.

I think it’s important for people to understand literally the process that follows arrival into the United States as a migrant. I just got back from El Paso and the work concerning migrants falls to philanthropies and churches. Their involvement far outweighs any state or federal support. 

Yeah. So, I do think it's important to mention how much the border enforcement apparatus actually relies on a pretty massive humanitarian industry on both the southern and northern sides of the border. Not industry in the sense that anyone's making money, but industry in the sense that it's a networked consortium of groups that are doing work that directly supports migrants, but actually indirectly supports the border enforcement scheme as well. It provides all kinds of additional free labor to the US government.

For instance, during Title 42, there was a humanitarian exemption that organizations could identify individuals who were in need of humanitarian assistance, and then work with Customs and Border Protection to identify those individuals, pass them along to the US government, and then allow those individuals to come in through a humanitarian exemption in Title 42. That was a system that was coordinated by NGOs on the southern side of the border.

As you mentioned, once those individuals came through, they went to shelters that NGOs and churches fund and support. There are a lot of folks who are doing really essential work. The US government has its policies, but it’s relying on those organizations to do a lot of the work. There is both a tension and collaboration there.  

They began rolling out the CBP One app about a year ago, and the claim was that the app would bypass the NGOs because the immigrants could just log in themselves and submit information. But, effectively, all of the NGOs adopted tech support roles for migrants who were trying to log into CBP One. The US government didn't provide any support to those NGOs or support for the migrants.

Once people do get through, they go to a shelter, and then they go to wherever they have relatives or connections of some kind—Miami, Cleveland, New York, Los Angeles, who knows—they're getting there by very often by bus, sometimes by plane if they have an ID that allows them to fly. And once they get there, at some point they're going to have to check in with ICE. At some point they're going to have to go to an initial hearing in an immigration court. If they want to get asylum, I mean, everyone wants to get asylum — but I just mean in terms of the math of it, people want asylum, they need an attorney. 

That's not necessarily easy to find. And neither is paying for an attorney. Most asylum cases of are between $5,000 (if they are being generous), and $15,000 if they are going with market rates. That's a lot of money for someone who just got here, may not speak the language, and may not have authorization to work yet. 

The immigration courts have a long wait time right now. There's a really big backlog. There are 3 million pending cases. Not all of those are asylum cases, but a large number of them are recent arrivals of people who will eventually apply for asylum if they are given the resources to, or if they have the resources to.

And then at some point, at the end of that process, a judge is going to say yes or no. They might get a removal order or they might get asylum and be able to apply for a green card in the year. For the people who don't get asylum and are issued a removal order, the numbers are pretty large right now, and it's expensive to deport people. The Biden administration isn't putting a lot of resources there. I think the budget for transportation, which includes deportation flights and things like that, hasn't been raised in like a decade. It's an uncomfortable question to ask, and immigrant rights advocates are mainly focusing on people getting access to asylum, but there is a practical and political question of what happens if Trump becomes president, and decides to revoke parole on a million people and mobilize ICE resources to round people up and deport them. We don't have long-term solutions right now. I think people are trying to find the short-term solutions that seem to be. But from a big-picture perspective, I am very curious as to where we are going to be in a year. 

You mentioned some of the restrictions that come with asylum. How do you make asylum livable and functional for people already in the country, who want to participate?

One way to answer this, and this is going to sound a little academic, but is also, I think the right answer, is that we haven't figured out how to make life livable for Americans. That's not to say that we need to prioritize Americans over migrants, but I just mean the nature of our economy is such that it's very difficult to live and work and survive in an economy where our healthcare is tied to our employment. We don't really have a livable wage in most places in the country.

And I hear this from migrants too. They go through so much to, let's say, get from Venezuela to here. And if their family isn't already established, they arrive in the United States, and it's like, great, now you're in this castle on the hill. But when you're climbing up that mountain, you can't look over the wall and see that there's still a whole underclass of people living in America for whom it's just hard to pay the bills and feed themselves.

So, in some ways, the answer to how we fix that is there is no way to really fix that without thinking about the nature of economic inequality in this country. I don't think the answer is simply, "don't let any immigrants in and then Americans are going to do great." It just has never worked that way.

I do think that one of the advantages of the Biden administration's parole program, at least for migrants, is that many of them are also coming in with work authorization, so they may actually be able to work. I am not an economist, but there seems to be something of a labor shortage in the country in certain key industries. So maybe that will help.

I do think that humanitarian organizations, churches, and so forth, are working really hard to help. A lot of cities are working really hard to help, but the reality is all this stuff costs money. A lot of cities and states and organizations are just absolutely strapped, and they don't have the supply to meet the demand, basically. I don't know how we solve that, but that is a problem.

Why don’t Democrats know how to talk about immigration? How do they expect to have a successful political future?

I don't think that the Democratic Party has developed a coherent analysis of US society in the post-9/11, post-neoliberal era. I think Democrats seem very confused about what to do with working-class questions, questions about what to do about worker representation, wages, and the economy, and I don't think that they've developed a coherent analysis around immigration. Democrats used to be the restrictionist party because of union-centered politics: if you restrict the number of laborers in the country, then laborers have more control in the workplace. The easiest way to undermine unions is to hire scabs or relocate to places that aren't unionized, so in the historical context of labor organizing, migrants were seen as a threat. It's not unusual, for instance, for people like the Koch brothers to be supportive of open borders. They fund organizations like the Cato Institute, which is historically pretty right-leaning, yet they are among the most progressive, liberal open borders groups.

And it's very, very interesting how that works because they actually have a coherent narrative. They believe in open borders because they prioritize the interests of industry, business owners, and capital investments. They don't have a problem if the wage relationship changes with more people coming into the country. 

Democrats have not been able to, I think, square the circle when it comes to their priorities. They believe that immigration is good because they are nominally opposed to things like prejudice and racism and are supposed to be “the nice humanitarian” people, but they don't know how to talk about working-class issues. They criticize Trump because he's bad and speaks in abrasive language, but then this bill comes up and Biden is more than happy to jump and use "close the border" language if it's expedient. The Democratic party is incoherent. Trump has a very coherent message on immigration: close the borders. That's just a much easier thing to articulate, a very easy thing to point to. I don't know what Democrats will do on immigration.

The economy is doing relatively well by most metrics. That is good from Biden's perspective because he can point to that and say, 'Look, we implemented good policies, the economy's doing so much better, unemployment's lower, and all these jobs are being created,' etc. But in a way, because the economy is doing well, it creates space for immigration politics to take up a lot of the "crisis" language.

Whereas when the Republicans tried to run on immigration in 2018, it sort of failed in the midterms for Republicans. If you recall, Trump was trying to run on the migrant caravan and all of this stuff, but it didn't mobilize voters. Yes, I think Trump has a more coherent message on migration, and I think it's easier to politicize the base and point to the question: is migration actually going to be a decisive factor for most people, or are they going to sort of go back to the core issue of, well, the economy is doing better than it was under Trump, and we certainly don't want Trump again, kind of thing. I'm very uncertain about how much migration is gonna shape the conversation.