The 10-point Republican immigration plan is punitive and harmful to our country

A few weeks ago, a group of 10 Republican governors, headed by Texas Gov. Greg Abbott, released a 10-point “Joint Policy Framework on the Border Crisis,” calling on the Biden administration to embrace their recommendations. 

Among their proposals, the governors urge the Biden administration to continue to repel immigrants at the southern border on the basis of Title 42 — our public health law; reinstate the Migrant Protection Protocols, which require asylum seekers to return to Mexico to await their court hearings in the U.S.; end the policy of “catch and release” which the Biden administration adopted to allow migrants encountered by U.S. Customs and Border Protection (CBP) at the border to enter the U.S. pending their immigration hearings; resume the deportation of immigrants with any kind of criminal record, no matter how minor, instead of focusing as the Biden administration does now, on dangerous criminals and deploy even more federal law enforcement officers to the border.

Nearly all of the policies advanced by this group belie an anti-immigrant and mean-spirited agenda. If adopted, not only would these policies make our country less welcoming, they would cause untold numbers of unnecessary deaths and make the United States more of a police state and less a civil society. 

President Trump invoked Title 42 ostensibly as a mechanism to prevent the spread of COVID into the U.S. This turned out to be a handy way to justify expelling migrants at the southern border. Despite the fact that no president in the history of the United States had ever invoked Title 42 for this purpose, Biden has since followed in Trump’s footsteps with respect to invoking Title 42 as a deportation tool.  

But there is no reliable data to support the government’s contention that immigrants crossing into the U.S. from Mexico are a public health threat to the U.S. The rates of migrants who test positive for COVID are low, and even for those who do test positive, we can quarantine them at the border. We can also easily vaccinate them. The head of the Centers for Disease Control and Prevention has made it very clear that the biggest threat to the public health of U.S. citizens relative to COVID, is the vast numbers of American citizens who are refusing to be vaccinated, putting everyone else at risk, not the migrants seeking to enter the U.S. from Mexico.  

Further, the use of Title 42 to expel migrants arguably is illegal. It violates U.S. asylum law, which guarantees those fleeing persecution the right to request asylum from the U.S. and have their requests adjudicated. In addition, there is no language in the public health statute that explicitly gives the U.S. government the right to deport immigrants. This hotly contested issue is playing out in the federal courts and likely will wind up at the Supreme Court. 

The Trump administration came up with the extremely inaptly named “Migrant Protection Protocols” (MPP) (also known as the “Remain in Mexico” policy). This inhumane approach to vulnerable people fleeing for their very lives shocks the conscience and violates U.S. asylum law, as well as our international obligations as a signatory to the United Nations Convention on Refugees. But beyond its legal vulnerabilities, the entire idea of forcing vulnerable asylum seekers to wait in Mexico for months in extremely dangerous conditions for future “to-be-scheduled” asylum hearings, is morally reprehensible. The Biden administration was absolutely right to end that heartless, horrific practice. This issue also is in the throes of litigation, as a federal court in Texas has ordered the Biden administration to reinstate this abhorrent policy and the Supreme Court declined to block the order.  

There is absolutely no justification for detaining most immigrants in prisons, jails and detention centers. A large percentage of detained immigrants never committed a crime. Studies show that the vast majority of immigrants who are released attend their immigration hearings. And if there is any doubt about whether particular individuals will attend, Immigrations and Customs Enforcement has the ability to impose monitoring devices such as ankle bracelets to keep track of them.  

The recommendations to end catch and release and to flatly increase deportations without prioritizing or differentiating between an immigrant who was arrested for driving with an expired registration and one who was convicted of a violent crime reveals a punitive, enforcement-only mindset. If adopted, these policies would further fuel the ramp-up in large-scale immigration detentions that started growing exponentially over the last 10 years when Congress started providing ICE with increased funding for immigration detention. It’s become a circular problem: Each year when it receives its appropriations, ICE has to use its funding to fill beds in prisons and detention centers with immigrants. So it does. Where is the empathy, and the recognition that so many immigrants detained in this enforcement net have never committed a crime at all or have extremely minor misdemeanor records?  

Finally, we don’t need more law enforcement officers at the southern border. We need a constructive, collaborative and coordinated approach, with jurisdiction and responsibilities shared between properly trained U.S. Citizenship and Immigration Services, CBP, Health and Human Services and Department of State employees, who together must address the myriad legal and humanitarian needs of the migrants seeking to enter our country.

It’s time to move beyond a punitive, anti-immigrant, enforcement-oriented immigration agenda, and to put ourselves into these immigrants’ shoes. For U.S. immigration policy to be fair and just, we must uphold our laws, stop branding and treating immigrants as criminals and reset the moral compass of our U.S. immigration agenda.

Susan J. Cohen is an award-winning attorney, founding chair of Mintz Immigration Practice and author of the new book, “Journeys From There to Here: Stories of Immigrant Trials, Triumphs and Contributions.” In 2017, Cohen worked with the ACLU of Massachusetts to secure a temporary restraining order on President Trump’s travel ban. Opinions expressed in this piece are Cohen’s and do not represent those of the Mintz Firm.