This essay presents, in lightly revised form, the Henry J. Miller Distinguished Lecture delivered at Georgia State University College of Law in Atlanta, November 21, 2019.

Large-scale migration flows have sparked controversy and polarization around the globe, with increasing intensity over the past half-dozen years. Public backlash in Europe and the US has led not only to bad immigration policy, but also – increasingly – to gains by authoritarian politicians like Hungary’s Viktor Orban, who exploit the issue to undermine democracy. America is far from immune. The stakes in national debates over immigration control policies are thus frighteningly high. Most Americans share genuine pride in our heritage as a nation of immigrants. This welcoming impulse coexists, however, with a concern about control, about risks to the rule of law, when migration flows seem to defy or overwhelm government regulation. Building a sustainable, humane immigration management system has to win the support of this large, conflicted, and often inattentive middle constituency – by visibly serving both the impulse to welcome and the impulse to control. The answer is not to cut overall migration; instead we must show seriousness about curbing unauthorized migration. We need taming, not hobbling, if we are to preserve the political space for generous legal migration laws.

The essay outlines the primary reform steps needed to serve these ends. They begin with a generous one-time legalization program, which would not only recognize the human claims of long-staying de facto residents but would also free up resources for a resolute enforcement program focused on new and recent violators. Legalization might also help restore healthier forms of cooperation on the part of state and local law enforcement officials, who have in recent years rebelled against cooperation when they see deportation imposed on long-standing and well-integrated residents. Modest revisions to legal migration provisions are also in order. Other enforcement initiatives would include mandating E-Verify use by all employers and launching a systematic government effort to locate and remove new visa overstayers promptly upon expiration of their permitted stay. 

Asylum reform is also acutely needed, but the asylum system, by its nature, can pose the greatest challenges to achieving reasonable control. Mastering the current immigration court backlog is essential, with timely removals of unsuccessful applicants after full and fair hearings – ideally including counsel at government expense through public-defender-style offices. In time of large-scale arrivals, as in summer 2019, further novel strategies (more humane and realistic than the Trump administration’s “Remain in Mexico” policy) may be needed: for example, international aid programs to address root causes, regional solutions incorporating extraterritorial sites for adjudication and the sharing of resettlement responsibilities, and, as necessary, centralized asylum processing and housing facilities on US territory along the southwest border. 

David A. Martin, Taming Immigration: The 64th Henry J. Miller Distinguished Lecture Series Remarks, 36 Georgia State University Law Review, 971–1003 (2020).