Bob Burns

South Dakota Gov. Kristi Noem has allocated human and monetary resources of South Dakota in response to the crisis at our nation’s southern border. I agree that there is a crisis but I disagree with her definition of the crisis.

She describes the crisis as an “invasion” of drug dealers and other criminal gang members let loose from foreign prisons and speaks of a ‘war zone,” an “open border,” military defensive “rules of encounter” and razor wire.

I understand the situation to be a humanitarian crisis in which an unmanageable number (as many as 10,000 per day) of desperate men, women and children from Caribbean nations, Central and South America as well as persons from Africa, Asia and Europe migrate to our border and request asylum because conditions in their home country have made life there unbearable and they see the US as a land of great new opportunity. How one defines the problem determines one’s approach to solving the problem.

The unmanageable number of asylum seekers at our southern border today can be best understood as the result of both push and pull factors. The push factors include all realities in one’s home country that would cause you to flee for your life or threatened wellbeing. Frequent natural disasters due to climate change, political instability, gang violence, economic strife and persecution are among the push factors. The pull factors include all realities in the US that might cause you to assume great risk and begin the arduous trek of hundreds of miles to the US border to seek asylee status.

These factors include the availability of jobs or business opportunities in the US as a result of our healthy economy, family or organization connections in the US, and the current government policy regarding asylum. Immigration analysts concur that both the push and pull factors are both very strong today accounting for the unmanageable number of asylum seeker reaching our southern border.

Current US government asylum policy is the most controversial of all the pull factors. Many Republicans including Gov. Noem and former President Trump insist that Biden’s “open border” policy has invited the “hoards” to invade our nation. President Biden has agreed that the border is not fully secure but it is not without safeguards. Indeed, the Biden administration has surpassed the Trump administration record regarding apprehension and deportation of undocumented migrants entering our nation but that may be due to the sheer volume of undocumented migrants entering our nation.

All US presidents since 1980 have been obligated by the Refugee Act (which incorporates the provisions of the Geneva Refugee Convention) to allow all persons who reach our border or enter our nation legally or illegally to request asylee status. Under the provisions of the 1980 law of Congress persons are to be granted that status if they can document that they have been victims of persecution because of their race, religion, nationality, political beliefs or opinions or membership in a particular political group and are not otherwise banned. Note that neither destitution nor fear of violence for reasons other than those enumerated in the law are valid reasons for receiving asylee status. Most of the asylum seekers who enter our nation and are detained are allowed to stay in the US pending a more formal hearing to determine their final status. Unfortunately there are limited immigration courts and judges to process the asylum requests in a reasonable period of time so we now have a backlog of nearly three million asylum seekers who may wait years for a formal status hearing. Depending on the year and the method for counting, 15% to 38% of those waiting for a hearing can hope to be granted asylee status.

Trump sought to severely limit the number of persons seeking and granted asylee status while Biden has adopted a more humanitarian approach. In assessing the asylum approaches of Trump and Biden, we need to recall that the president has a US Constitutional obligation to “take care that the law be faithfully executed” rather than seek ways not to execute the law. Members of Congress who are displeased with presidential enforcement of the law can attempt to change the law.

Trump introduced deterrents including repairing a border wall and building additional miles of wall, separating families at the border, imposing a requirement to stay in Mexico pending status hearing , and Title 42 or emergency powers during the pandemic years to justify deportations and entry denials.

Biden relied upon Title 42 until the courts ruled the emergency had passed but he refused to continue other Trump harsh measures because our courts had found most of them to be without legal constitutional or statutory authority.

Biden did extend the remain in Mexico policy but Mexico no longer wishes to cooperate. Biden has also sought to limit border requests for asylum by introducing a need to make an appointment using an app called CBP One and requiring migrants to request asylum in nations they might pass through during their quest to reach our border. Biden has also sought to limit the flow of migrants by lending US assistance to home nations of the migrants in order to resolve the “push factors” prompting migration. Biden critics insist he has additional powers to stem the tide of migrants but legal experts point to the many Trump immigration policies that were invalidated by our federal courts or abandoned by the Trump Administration because of court challenges.

The most recent effort to reform our nation’s refugee/asylee law has been defeated. The proposed measure was part of a larger appropriation of over $100 billion to provide aid to Ukraine, Israel, Gaza, Taiwan and to fund more US border security including more fencing and manpower, more migrant detention centers and asylum courts and judges.

In addition, the proposed law would have extended new authority to the president to stop additional migrant entries when certain thresholds were exceeded and toughened the standard for being granted a formal asylum hearing.

Former President Trump’s threatening opposition to the broad refugee/asylee reform measure, in order to preserve the border crisis as an issue for the fall election, perhaps best explains why Republican law makers withdrew support for the provisions they once strongly supported. As a result, our best hope for resolving the crisis at our southern border is to hope the push and pull factors prompting mass human migration will be altered.