The Impact of The Biden Administration’s Immigration Plan on Missing Migrants

In 1994, the United States adopted a border patrol enforcement strategy termed “Prevention Through Deterrence.” As discussed in a previous post, the goal behind the strategy was to reduce the number of irregular migrants crossing into the United States by forcing them over “more hostile terrain, less suited for crossing and more suited for enforcement.” Two decades of research has proved that the policy failed in deterring migration, “but has succeeded in shaping border crossing into a well-organized and violent social process.” According to Customs and Border Protection, 7,505 people have died crossing the U.S. Mexico border between 1998 and 2017, though that number is likely a significant undercount. In fact, more people have died or gone missing while crossing the southwestern border of the United States than were killed in both the September 11th terrorist attacks and Hurricane Katrina combined. Many of those individuals whose remains have been found have not been identified, and are dubbed ‘missing’ by their family members.

Map of migrant deaths on the Arizona border as of 2019. Source: https://humaneborders.org/wp-content/uploads/deathpostercumulative_2019_stewardship_mid_letter.pdf.

In order to end the missing migrant crisis at our borders, focused policy changes are needed to (1) resolve the immigration and asylum backlog, (2) reform Border Patrol’s culture of abuse, and (3) facilitate U.S. engagement with transnational instruments to provide access to justice for families of victims. One such instrument is the Mexican External Support Mechanism for Search and Investigations, which aims to assist families of disappeared report human rights violations and initiate investigations of the disappearance.

In addition, BU’s International Human Rights Clinic has identified a need for U.S. state-by-state reforms to enable the families of migrants to report their missing loved ones, facilitate systematic and respectful investigations into the deaths of migrants on the borders, expedite the identification of remains, and promote the respectful return of remains to their families. For example, at the moment states such as Texas and New Mexico have no requirements for local authorities to conduct autopsies or undertake efforts to identify unidentified remains.

Since taking office, President Biden has released several executive actions to address the issues of immigration, asylum, and, consequently, the missing migrant crisis. According to the White House’s Fact Sheet, President Biden has developed a strategy to address irregular migration across the Southern Border and create a humane asylum system via a three-part plan for safe, lawful, and orderly migration which addresses the “underlying causes of migration.” To that end, President Biden has pledged $4 billion over four years to decrease “endemic corruption, violence, and poverty” within the Central American region.

In addition, Biden has ended “safe third party” asylum deals with El Salvador, Guatemala, and Honduras — agreements requiring migrants to seek asylum in those countries prior to seeking asylum within the United States. The decision offers hope for increased collaboration in the region and could indicate that the Biden Administration is open to engaging in the Mexican External Support Mechanism for Search and Investigations.

Biden’s call for a sweeping review of the asylum and naturalization process, and specifically the pledge to address the root causes of Latin American migration, has excited many immigration rights activists. “Certainly, it presents a much much more sophisticated view of the refugee and asylum issue for the Western hemisphere than we have seen,” Thomas Saenz, president of Mexican American Legal Defense and Educational Fund, commented to The Hill. The shift from enforcement of hardline policies to one of mutual aid and collaboration has been heralded as a more realistic long-term approach. However, for all the admirable language within the actions and orders, without legislation to back them up, there is reason to remain cautious in our hopes for sweeping and effective responses to the missing migrant crisis.

Last week, the Biden administration unveiled the United States Citizenship Act of 2021, which “seeks to modernize our immigration system and smartly manage our borders, while addressing the root causes of migration.” As it is currently written, the Citizenship Act includes several provisions which, if properly implemented, address the missing migrant crisis. First and foremost, the Act aims to resolve immigration and asylum inefficiencies by “clearing backlogs, recapturing unused visas, eliminating lengthy wait times, and increasing per-country visa caps” in the family-based and employment-based immigration system. In addition, it would provide immigration judges and adjudicators with discretion to review cases and grant relief to deserving individuals. An increase in immigration and asylum capacity at the border would, in turn, reduce the wait time for migrants at the border, eliminating one driver of irregular migration. This would in effect lower incidents of migrant death.

Further, the Act takes some steps to improve Border Patrol’s culture by funding training and continuing education to promote agent and officer safety and professionalism, instituting a Border Community Stakeholder Advisory Committee, and requiring issuance of department-wide policies of government use of force. While these changes are limited, and do not take responsibility for policies that directly increase migrant death rates, they are welcome and hopefully indicate more reforms to come.

The executive actions and the proposed Citizenship Act are a marked improvement in immigration and asylum policy generally. However, they remain only the first step towards undoing the hardline policies set by the previous administration and remedying two and a half decades of state-sanctioned migrant endangerment. Further action is needed to commit the US to engage in transnational efforts such as the Mexican External Support Mechanism as well as institute state-by-state reforms to facilitate respectful identification and reunification of migrant remains.

Author Bio: Kaitlin Ostling is a second-year law student at Boston University School of Law, participating in the migrant disappearance project of BU’s International Human Rights Clinic. Kaitlin hopes to practice strategic international litigation after graduating.