With Secretary Kirstjen Nielsen’s departure from the Department of Homeland Security (DHS) this week, the future of the Trump administration’s immigration policy has been thrown into uncertainty, even as the situation at the southern border becomes increasingly unstable.
According to a New York Times report, Nielsen’s relationship with the president worsened in recent months as he repeatedly blamed her for the ongoing surge in apprehensions at the border. The breaking point apparently came when Trump asked her to close ports of entry and stop accepting asylum seekers, and she refused. Some other reports suggested that the president also was frustrated with Nielsen’s resistance to reinstating the “zero tolerance” policy of separating migrant children from their families at the border, which was scrapped last summer after months of controversy. (Trump denied this on Tuesday afternoon, telling reporters, “We’re not looking to do that, no.”)
Nielsen’s resignation came amid a months-long spike in the number of asylum seekers and migrant families stopped at the southern border. In early March, the Times reported that “for the fourth time in five months, the number of migrant families crossing the southwest border has broken records.” Weeks later, U.S. Customs and Border Protection (CBP) head Kevin McAleenan called the situation an “unprecedented humanitarian and border-security crisis.”
Before her ouster, Nielsen clearly concurred. On March 28, she sent a letter to Congress describing the situation at the border as “a humanitarian and security catastrophe that is worsening by the day” and estimating that CBP had apprehended about 100,000 migrants in March alone, up from 76,000 in February — the highest numbers in ten years. Then, last week, she ordered an accelerated deployment of an additional 750 CBP officials to the border to cope with the influx of migrants. “The crisis at our border is worsening, and DHS will do everything in its power to end it,” she said.
Now, of course, Nielsen is gone, and the hunt for a new secretary of homeland security promises to be contentious. Trump has announced that he aims to appoint McAleenan as her acting replacement, leaving an opening atop CBP to go with the vacancies created by the purge of Nielsen allies throughout DHS leadership that followed her exit. Amid all the chaos, Senator Ron Johnson (R., Wis.) hopes to bring some clarity. As chairman of the Senate Homeland Security Committee, the Wisconsin Republican has been talking about the problem at the border for quite a while — and he thinks both the Left and the Right need to modify their approaches to the issue.
“When the president only talks about a wall, that’s too easily ridiculed,” Johnson says in an interview with National Review, noting that, while reinforced border fencing is an important part of the solution, it shouldn’t be the sole focus of an effective immigration policy.
At the same time, he describes Democratic rhetoric on immigration as “demagoguery” and says that until coverage of the debate features “real information” instead of empty talking points, Democratic politicians won’t have much incentive to cooperate in finding policy compromises. The solution, to his mind, is to enable DHS and CBP to quickly return as many illegal migrants as possible to their countries of origin, i.e., rapid adjudication and immediate consequences for illegal entry.
“We don’t have enough of a court system or enough detention facilities,” Johnson says. “We don’t have the capacity to be able to handle, adjudicate, and detain quickly enough to have consequences. And the consequence that works is removal.”
The Wisconsin senator points to the “Texas Hold ‘Em” initiative, launched in the summer of 2008, as an example of how to accomplish expedited removal of individuals involved in human and illegal-contraband smuggling. He argues that any effective immigration policy should aim to replicate the initiative’s success in reducing the flow of migrants as quickly as possible.
“That means returning people to their home country so they’ll think twice before paying half their salary to a ‘coyote’ and endangering their child on the journey,” Johnson says. “You have to detain people, which means you have to overturn Flores so you can detain children with their parents for a longer period of time.”
“Flores,” for those unfamiliar with the minutiae of immigration politics, refers to the 1993 Supreme Court case Reno v. Flores, which resulted in a 1997 consent decree that established legal standards governing the federal detention of underaged illegal aliens. After decades of legal wrangling, the decree was eventually held to prevent the government from detaining such aliens — whether unaccompanied or with their parents — for longer than 20 days. At a hearing of the Homeland Security Committee last fall, Johnson explained how that reinterpretation led to both family separation and an increase in the number of migrants at the border:
The Flores reinterpretation has basically left the Department of Homeland Security with only two options, both of them bad: Release children and detain their parents, or go back to the failed policy of “catch and release” for illegal-immigrant families apprehended at the border.
Right now, the administration is in “full catch-and-release mode,” Johnson says, and that has encouraged even more migrants to bring children with them to the border as a means of guaranteeing they’ll be released into the U.S. while they await their asylum hearings, which many never attend.
Though he acknowledges the reality of dangerous drug cartels and human traffickers — and emphasizes that some migrants do have valid asylum claims — Johnson cites DHS figures that estimate about 85 percent of current migrants are coming to the U.S. to find better economic opportunities, rather than to escape direct threats to their safety. “Most of these claims when fully adjudicated will be ruled invalid,” he says.
But dealing with those claims efficiently enough to avoid the problem caused by Flores’s 20-day detention limit will require more immigration lawyers, more judges, and, most important to Johnson’s mind, more Immigration and Customs Enforcement officers.
Unfortunately, after Nielsen’s departure and Trump’s decision to clean house at DHS, the chances that the policy-focused immigration debate Johnson seeks will materialize seem as remote as ever.