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A Former Obama Official on the “Interlocking Set of Failures” at the Border

Last month, a record high of nearly nineteen thousand unaccompanied children from Central America arrived at the U.S.-Mexico border. The arrivals have overwhelmed government facilities, leaving many child migrants in Customs and Border Protection detention centers for longer than the seventy-two hours permitted by law. The surge of asylum seekers has served as a test for the Biden Administration’s immigration policy, which provides protections for unaccompanied minors but maintains some restrictions introduced under President Donald Trump. Some have decried the situation as a humanitarian crisis.

Cecilia Muñoz is a member of the Biden transition team who previously served as the director of the Obama Administration’s domestic-policy council. In a recent piece for The Atlantic, Muñoz wrote about the “unrealistic expectations among immigration opponents and immigrant advocates alike” and made the case for “a process that is fair, orderly, and humane.” I recently spoke by phone with Muñoz, who spent several years at the National Council of La Raza, an immigration-advocacy organization, before working in the government. During our conversation, which has been edited for length and clarity, we discussed the Biden Administration’s response to the recent surge of migrants, Barack Obama’s legacy in immigration policy, and how discussions of the border have changed during the past thirty years.

In your recent piece for The Atlantic, you wrote, “As a matter of law, America’s borders are not open. Not everyone who comes is legally entitled to stay.” What did you mean by this, and what do you think it should entail, in practical terms?

What I mean is that I think the expectations of the country are that we will make decisions about who enters and who doesn’t enter, and that is consistent with the law. With the whole policymaking exercise—from advocacy, to the people in government, to policymakers, to people anywhere in the country who have a perspective on these issues—our responsibility is to come up with a system that makes sense, that we can support, that reflects our values, and that is good for the country. We have failed to do that now for a few decades. The last time immigration was reformed was in the nineteen-nineties, and we are living with the results of that. We can do better.

Isn’t there another way of looking at it, which is to say that the immigration system hasn’t been reformed not because we don’t have the political will but because a lot of stakeholders actually think the current situation is a good deal for the country as a whole?

There’s no question that there are a lot of sectors that benefit from the fact that our immigration system is broken, but it is also true that no one is prepared to defend it, because it really is indefensible. We have an immigration system that has not been reformed since the Internet was a new thing, and so our system of laws, the policies under those laws, the various facilities that we use—all of that was designed for a situation that is very different from the one we have now. The dysfunction, which I think everyone in America recognizes, is the result of that.

What aspect of it do you think is the most indefensible?

We have a series of interlocking problems. For example, the fact that the legal-immigration system hasn’t been reformed since the nineteen-nineties has contributed dramatically to the situation that we’re seeing at the border now. If we had reformed the laws, as Congress tried to do in 2013 and, before that, in 2006 and 2007, the people who are in the U.S. sending money to smugglers to bring their children here would be legal residents of the United States, and they would be using the legal-immigration system to reunite with their kids.

What we have is an interlocking set of failures that involve the legal-immigration system, as well as an outdated asylum system, as well as outdated border policy and facilities. All of these things contribute to what we’re seeing now, which is a seasonal upsurge that happens every spring in migration from Central America, in the hands of an Administration that is badly hamstrung by the fact that its predecessor broke so much over the last four years.

Given that the system is, as you say, broken, and it seems like we’re not really close to a legislative fix, how should Biden be handling this surge of children at the border, often unaccompanied?

The law is actually very clear on how to deal with unaccompanied migrants when we encounter them. They are to be moved as quickly as possible from Border Patrol facilities, which are no place for children, to shelters run by H.H.S. [Health and Human Services], whose job is to protect the children while looking for their family members so that they can be reunited. That’s the way the system is supposed to work under the law. When you have enough shelter facilities, that’s generally the way it works. Those children are put in asylum proceedings, and the goal is to protect them and reunite them with their families as their cases proceed through the asylum process.

The reason that we have a problem at the border now is because H.H.S. doesn’t have sufficient shelter facilities, and they’re scrambling to set up enough facilities for the number of kids that they’re seeing, but the fact that they’re scrambling has to do with the fact that the previous Administration was not planning for this and did not set them up to succeed.

Do you think that the Biden Administration is sending the wrong message or making a mistake?

I do not believe, in the United States of America, that we should send any other message than that, if you are a child, unsupervised, we will protect you. I don’t believe it is right to leave children to their own devices in Mexico when they have presented themselves asking for help. Frankly, I would hope that if you or I had a twelve-year-old knocking on our doors in need of help that we would not simply slam the door in their faces.

You also say, in the piece, “Yet to my frustration, many of my friends in the immigrant-advocacy community will not help shape these decisions; most are unable or unwilling to name any category of migrant who should ever be returned.” What’s the difference between what you just told me and the critique you’re making there?

The way the system is supposed to work is you protect unaccompanied migrant children, and then they, hopefully with legal representation, have the opportunity to make their asylum case in the United States. If they qualify, they are allowed to stay. If they don’t qualify, they’re supposed to be returned. That last part of the sentence is really uncomfortable, for all the reasons that we know, but it is the way the law works.

What I was referring to in the article is the larger system. The policy choices that we need to make are in an environment in which we have a system of laws and a system of expectations, and hopefully a generous immigration policy. Even a generous immigration policy will not allow for unlimited entry. We should be making choices about it. There are policy choices to be made about who should be an immigrant, and that includes removing folks who don’t qualify under the law. That’s, I think, just the reality of being a nation. I’m much more comfortable in a situation where the people making those decisions are people who care about the well-being of immigrants and the well-being of the United States. I prefer that to the situation that we’ve had over the last four years, in which we had policymakers who barely acknowledged the humanity of the people that we’re talking about.

One of the critiques of the Obama Administration, which you worked for, was that it stepped up enforcement in the hope of coming to a longer-term legislative deal, but the deal did not come through, and there were increased deportations. Do you think that’s a fair critique? If so, does it shape the way you think about how to deal with things now?

No, I don’t think it’s a fair critique. The innovation of the Obama years on immigration enforcement was actually making judgments about who were priorities for removal and who were not priorities for removal. The policy choice made in the Obama Administration was to focus on people who had just arrived, assuming that they were not asylum applicants or people who had been convicted of serious crime, and the enforcement priorities implemented by the Obama Administration focussed on those people. Of the folks that were deported, the overwhelming majority were people who had just gotten to the United States, and that policy decision was based on the notion that it is inherently more humane to remove people who have just arrived than it is to remove people who have been here for twenty years and have deep roots in the United States.

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