Whether remembered for the Cold War-era claim that mutually assured destruction would prevent nuclear war between the U.S. and Soviet Union, or considered on its merits for applicability to today’s foreign policy and homeland security challenges, deterrence has long played a vital role in the U.S. security arsenal of strategies aimed at staving off threats, neutralizing crises and preventing illegal acts.
A number of studies show the effective use of deterrence methods in discouraging – primarily – economic-driven, unauthorized migration across the U.S. southern border with Mexico, particularly since 2011., That year’s implementation of the Consequence Delivery System imposed harsher penalties for unauthorized border crossing, such as jail time, removal to the interior of Mexico, and formal deportation., The expansion of border security personnel and erection of strategically placed fencing along areas of the border with Mexico, which are otherwise particularly vulnerable to penetration by unauthorized migrants, also helped. In fact, according to surveys of repatriated Mexican nationals, while in 2010 95 percent of all returnees said they would seek re-entry, by 2015 only 49 percent said they would try again. Greater risk and rising smuggling costs – consequences of tougher enforcement – were cited as the strongest deterrents.
Indeed, unauthorized migration across the southern border has declined significantly in the past 20 years, with researchers estimating successful unauthorized entries dropped from roughly 1.8 million in 2000 to about 200,000 in 2015. Continued low levels of unauthorized border crossing apprehensions following the U.S. economic comeback from the 2008 recession – thought perhaps to account for reduced unauthorized migration flows – serve as an additional indicator of the effectiveness of deterrence through enforcement.
Examining the issue of unauthorized migration to the U.S. driven by what migration experts refer to as economic “pull factors,” according to Pew Research, as of 2016, the number of undocumented people living in the U.S. decreased to 10.7 million from a peak of 12.2 million in 2007. In regard to unauthorized migration across the southern border, in 2016 there were 1.5 million fewer unauthorized Mexicans living in the U.S. than in 2007. While Mexicans still make up a majority of undocumented immigrants living in the U.S. today, emigration from Mexico has slowed with an average of 386,000 annual unauthorized arrivals from 2011 to 2016, compared to 715,000 from 2002 to 2007, representing a 46 percent decline. In fact, now that foreign nationals overstaying their U.S. visas rather than crossing the U.S.-Mexico border represent the majority of unauthorized migrants living in the U.S., it appears clear that directing greater resources toward enhanced border security-centric, unauthorized migration deterrence methods is likely to yield diminishing returns.
Yet, the U.S. and many U.S. allies around the world are facing border crises of a different nature, as represented by a global surge of asylum-seekers fleeing unlivable conditions in conflict zones, or what migration experts call home country “push factors.” Asylum is a protection granted to foreign nationals who are already in the U.S. or arrive at the border and meet the U.S. Refugee Act of 1980 definition of a refugee, including any person outside of their home country “who is unable or unwilling to return to such country because of persecution or a well-founded fear of persecution based on race, religion, nationality, political opinion, or membership in a particular social group.”
In the U.S., although the total number of migrants apprehended at the U.S.-Mexico border is near its lowest level since the early 1970s, U.S. Citizenship and Immigration Services reports that more individuals from the Central American Northern Triangle region, fleeing record levels of violence, sought affirmative asylum in the U.S. between 2013 to 2015 than in the previous 15 years combined. And for addressing this problem set – a humanitarian crisis driven by home-country push factors – deterrence is not the answer. Here is why.
First, the use of deterrence against asylum-seekers is inconsistent with U.S. law. Under U.S. immigration law, specifically 8 U.S. Code § 1158 – Asylum, the U.S. has a legal obligation to consider serious requests for asylum, and all quantities of non-U.S. citizens from anywhere in the world are permitted to apply for asylum in the U.S.
U.S. immigration law provides for two types of asylum-seeking: affirmative and defensive. Affirmative asylum is pursued by foreign nationals who enter the U.S. with a valid visa and apply for asylum through U.S. Citizenship and Immigration Services. Defensive asylum is requested by unauthorized foreign nationals either during removal proceedings in a U.S. immigration court or at a port of entry without a valid visa. Both processes require asylum seekers to indicate a “well-founded fear” of persecution in their home countries during a credible-fear interview with immigration authorities. In the case of defensive asylum, an immigration judge decides whether the applicant will be granted asylum.
Second, deterrence probably can’t stem asylum-seeking migrant flows. Irrespective of law, a principle condition of deterrence theory holds that potential perpetrators can only be deterred if they believe the consequences of their actions will result in unacceptable costs to them. In other words, only actors making cost-benefit calculations and perceiving there to be a viable alternative to their actions are responsive to deterrence tactics. Thus, if the potential perpetrator believes the alternative is worse than the deterrent, deterrence is unlikely to work at all.
Third, unlawful, ineffective use of deterrence tactics against asylum-seekers can harm broader U.S. security interests. It risks deepening insecurity by galvanizing protests and inspiring ill will against the U.S. It can damage the relationship between the U.S. and other regionally affected nations, precluding the possibility of undertaking mutually beneficial cooperation to address the problem. Finally, inappropriate use of deterrence risks diminishing U.S. political leverage internationally by undermining the credibility of U.S. rule of law on the world stage.
Instead, by partnering on a diplomatic level with other countries in the region to find safe, sustainable, humane solutions to resettling asylum-seeking migrants, and increasing U.S. capacity to more efficaciously process applications for asylum, the U.S. can better address the challenge of large numbers of asylum-seekers trying to enter into the safety of the U.S. while their applications are considered.
The views expressed here are the writer’s and are not necessarily endorsed by Homeland Security Today, which welcomes a broad range of viewpoints in support of securing our homeland. To submit a piece for consideration, email HSTodayMag@gtscoalition.com. Our editorial guidelines can be found here.