Here’s how to fix America’s immigration system. Trump’s path is not the solution | Kenneth Roth

Immigration is one of the most divisive issues facing the United States, as it is in many countries. An ICE agent’s killing of Renee Good in Minneapolis is only the latest outrage that has brought the issue to the fore.

Facing a 30 January deadline to renew funding for the Department of Homeland Security, which houses ICE, Democrats are now insisting on limits on ICE, at risk of another shutdown. It may be a pipe dream, but it is worth asking whether now might finally be a time to forge the long-elusive bipartisan agreement on immigration.

I believe deeply in the value of immigration – my father was an immigrant, as were my mother’s parents – but even I must admit that the current system needs fixing. Until recently, immigrants flooded the US-Mexican border. Rather than trying to sneak across as in years past, most presented themselves at a formal border crossing and sought asylum.

They proceeded entirely lawfully, but because their numbers overwhelmed the asylum system, it could take years for a claim to be considered, effectively allowing long-term residence in the United States before any ruling on the merits. That contributed to the perception that the asylum system was broken.

Joe Biden’s administration addressed the problem by maintaining the theoretical right to seek asylum but imposing restrictions, including making many migrants wait in Mexico where they were vulnerable to abuse and exploitation. Donald Trump has essentially withdrawn the right to seek asylum at the border, denying people fleeing war and persecution the opportunity to find a safe haven.

So what is the solution? Given the prominence that Trump gave the issue during his campaign, it is safe to read his 2024 electoral victory as a mandate to tighten enforcement at the border. That could involve beefing up border patrols to deter people from sneaking in. It could even involve extending his notorious wall.

But rather than destroy the right to seek asylum, a more appropriate response would be to increase the number of immigration judges – a funding issue – so that claims could be heard fairly yet expeditiously. Cutting the backlog would greatly decrease the time that asylum seekers without valid claims stay in the country.

Trump’s deportation raids in neighborhoods and workplaces are far more controversial. Of the estimated 14 million undocumented immigrants in the United States, at least two-thirds and possibly as many as 80% have been in the country for five or more years. About 45% have been in the country for 20 years or more.

The equities of deporting them are very different from deporting a recently arrived immigrant. The recent arrival has put down few if any roots. But immigrants who have been in the country for five or more years often will have US citizen spouses and children. They typically will hold jobs, pay taxes and have friends and relationships in the community. In short, the look like Americans in all but the papers they carry.

Advocates of tighter immigration enforcement justify deporting them by noting that they are in the country “illegally”. But that’s not the end of the matter.

If a person is accused of a crime, the criminal code contains a statute of limitations that, other than for the most serious conduct, bars prosecution unless charges are filed within five years of the alleged offense. Even most civil-law violations have a statute of limitations. That doctrine reflects in part the view that, even if someone’s conduct is illegal, they should be allowed at some stage to move on with their lives – that there is something unfair about upending their lives for something they did years ago.

A crime is more serious than merely entering or staying in the United States without authorization, but in this respect US law treats the issue more severely: there is no recognized statute of limitations for immigration violations. An undocumented immigrant can be detained and deported even if they have had productive lives in the United States for many years or decades.

Some prior administrations have tacitly recognized this unfairness by focusing immigration enforcement on recent arrivals along the border – a policy rather than a legal solution. Trump’s raids in neighborhoods and workplaces across the country end that approach.

We need a statute of limitations for immigration violations. If immigrants have not committed a serious crime while in the United States, as few of those being deported by Trump have done, they should be allowed to stay if they have been in the country more than five years. Immigration opponents will undoubtedly howl that this is a dreaded “amnesty”, but it is no different from the statute of limitations that already exists in the criminal law, which hardly could be said to amnesty criminality.

Why would immigration opponents support this measure? Because it could be part of a grand bargain. In return for beefing up enforcement at the border and increasing the capacity of the asylum system to expedite rulings, we would recognize the unfairness of deporting people who have built lives in the United States.

That is the right thing to do. It would be a nod to reality, since the truth is that despite the high profile of Trump’s deportation raids, they are capturing only a tiny fraction of undocumented immigrants.

There would also be political advantages to both sides. Democrats would make clear that they do not stand for open borders, which are broadly unpopular. And Republicans could rid themselves of ICE conduct that is becoming toxic as Americans sour on the idea of summarily deporting their colleague at work or their neighbor down the street.

A grand bargain on immigration wouldn’t solve everything. It wouldn’t determine how many immigrants should be admitted as skilled workers, allowed family unification, resettled as refugees, or granted temporary protected status. But it could address a big part of what Americans have found wrong with the old approach to immigration and what they dislike about Trump’s new approach.

• Kenneth Roth, former executive director of Human Rights Watch (1993-2022), is a visiting professor at Princeton’s School of Public and International Affairs. His book, Righting Wrongs: Three Decades on the Front Lines Battling Abusive Governments, is published by Knopf and Allen Lane