Feds leave NYC with nowhere to turn on migrants

This fall, the border panorama may well change again. A federal appeals court will now consider the legality of the Biden administration’s so-called transit ban 2.0, the policy that rendered most would-be asylum seekers ineligible unless they had already been rejected for asylum in another country or met one of several exceptions.

California Federal Judge Jon Tigar has already ruled against the obviously unlawful policy, though his ruling was stayed while the case moves forward. If and when the appeals panel strikes the policy down — and its ruling against a nearly identical Trump-era policy strongly suggests it will — the border will revert to pre-pandemic status quo for the first time since the Title 42 policy was issued more than three years ago. Are we prepared for that? Across the board, the answer seems to be a clear “no.”

This transit ban was hastily put in place by the Biden administration in advance of Title 42′s end along with the COVID public health emergency in May — a border restriction masquerading as a public health policy ending along with with the wane of a pandemic it did nothing to stem. This sleight of hand allowed the administration to stave off what was expected to be an increase in arriving migrants in the aftermath of Title 42, which it found itself unprepared for even as the end of the policy had been foreseeable for years. Rather than build up capacity to process the humanitarian applicants in the way that law and morality demands, it continued the Trump legacy of widespread restrictions and deterrence as the default. Yet now it seems that the chickens will come home to roost.

The Biden team was well aware that the Trump-era version was struck down along the exact same lines that Tigar just invoked, by none other than Tigar himself. As the judge pointed out in his recent ruling, including limited exemptions like allowing migrants to register for asylum appointments via a glitchy app often derisively called the “asylum Ticketmaster” does not fundamentally change the fact that broad exclusions run counter to Congress’ explicit intent to allow noncitizens who arrive in the U.S. to seek protections.

So here we are again, having wasted the months of breathing room bought by a doomed restriction without setting up better systems to manage the migrant flows and fulfill our related responsibilities. The White House has a narrow window here to find better solutions. If past is prologue, we know who will bear the brunt if it doesn’t: New York, which has continued to receive thousands of migrants per month as a result of the simple reality of having basic systems in place to provide a measure of aid and assistance, which is more than almost anyone — certainly including the feds — are providing.

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Or, rather, had been providing. With the Adams administration between a rock and a hard place for months, it’s taken the short-sighted step of beginning to time-limit migrants from shelters. Aside from its dubious legality if and until a judge modifies the right-to-shelter decree, the rationale for this policy shift isn’t wrong in that the city does not and cannot have unlimited space and funding for the dire needs of an ever-increasing group of desperate people who are practically and legally excluded from self-sufficiency, and that goes double for the potential of a new influx.

The city has already done a herculean job in the hot light of national scrutiny to contend with what is fundamentally a global issue, as Deputy Mayor Anne Williams-Isom accurately put it this week in announcing a welcome program to partner with law schools to process asylum applications. Where it loses the plot is in assuming that tossing people out on the street is going to be better, or more politically popular. Looking away won’t make them disappear, even if housing them in increasingly ad-hoc shelters like Parks Department rec centers is only a marginally better solution.

To quote the fictional Dr. Ian Malcolm from “Jurassic Park”: “life finds a way.” Migrants have, for example, leaned hard into the informal economy, setting up a flourishing — and largely un-permitted — street vending ecosystem and joining industries like the culinary and construction sectors, which are happy to have them but also rife with exploitation. What is the city supposed to do? Either it allows the uncontrolled growth of unregulated commerce, or it yanks one of the only lifelines available to this population. Another impossible choice.

We’re left in the end with no real answers. New York City can’t keep shouldering this responsibility, and we can’t drop it either. It’s a non-choice we shouldn’t have to try to make. More than 60 years ago, the federal government decided to build a series of highways that criss-crossed around the entire country. Around the same time, the government propped up an ambitious program to beat the Soviets to the moon, which we did in one of mankind’s most awesome achievements. Just three years ago, a moment of prioritization and focus under a state of extreme emergency produced the mRNA COVID vaccine faster than many experts believed a vaccine could be synthesized.

And now, we can’t build out an infrastructure to effectively manage the arrival of just half a percent of our national population as humanitarian migrants, amid a labor crunch, in a way that fairly adjudicates their claims while not leaving them to a limbo that localities are forced to manage? Why not? Is it really a logistical issue, or a political one? Why is Texas Gov. Greg Abbott allowed to enact his own border policy, while Gov. Hochul and Mayor Adams are left to the wolves?

We all face the consequences of Congress’ continued failure to modernize ancient laws — allowing asylum seekers to work much more quickly, creating streamlined humanitarian pathways that would allow them to go through the process abroad instead of having to show up at the border, ending political meddling in the immigration courts, and other reforms — and the president’s reluctance to use the federal government’s resources, including existing refugee and migrant transport systems, to provide a soft landing, a chance at social integration, fair process and basic dignity.

If we cannot break the spell of hyper-polarization that views a binary choice between a hermetic, demilitarized-zone-border and total open immigration, we will fail in every single one of our objectives. We won’t fulfill our ethical duty to process those fleeing persecution and calamity, nor will we shore up our economy with the workers it so badly needs amid an aging population and what is supposed to be a new era of U.S. infrastructure and industrial production. If Congress and the president don’t change course, and more broadly we don’t shift the political incentives towards gridlock, in the end no one will win.