The U.S. can fix its broken asylum system
After the recent melee involving Central American asylum seekers, Mexican police, and the U.S. Customs and Border Patrol, an uneasy calm has returned to the crossing between Tijuana and San Diego. It’s unlikely to last. If President Trump doesn’t change his policies, expect more tear gas, volleys of rocks, and howls of pain and outrage on both sides of the border.
This turmoil is avoidable. Mainly, the U.S. needs to mend its broken asylum system — and the solutions are more straightforward than you might think.
Everybody has the right to seek asylum, and nobody has the right to enter the U.S. illegally, by force or by stealth. People seeking sanctuary in the U.S. were wrong to rush the fence, and the Border Patrol was right to defend it. But applicants for asylum would be more likely to present themselves in an orderly way at ports of entry if the U.S. could process their applications in a timely and compassionate fashion. And that isn’t happening.
The surge in asylum applications by Central Americans since 2010 has been driven mostly by illegal border crossings. In fact, a staggering 99 percent of the 94,285 Central Americans who were apprehended in 2017 entering the U.S. illegally as a family unit are still here. Many of these migrants are fleeing horrific violence and persecution, some might therefore be eligible for asylum, and the U.S. is obligated by domestic and international law to hear their claims.
But a huge and growing backlog of applications in the hundreds of thousands has created perverse incentives for wouldbe migrants to file spurious asylum claims, because these can allow them to remain in the U.S. for years while their cases wait to be processed. The backlog doesn’t discourage bogus asylum seekers, as you might suppose; it does the opposite.
Trump is right that the U.S. asylum system “is being overwhelmed by migration through our southern border.” Unfortunately, his remedies not only violate the letter of U.S. law and the humanitarian spirit that animates it — they’ve compounded the problem, by adding to the backlog and hence to the incentive to cheat.
A federal judge ruled last month that Trump’s executive order narrowing access to asylum to those who apply at ports of entry contravened Congress’s clear intent. And the administration’s accompanying policy of “metering” applicants at ports of entry is designed more to discourage applications — regardless of their validity — than to impose greater order on the process. Bringing order to the process is the crux of the matter.
This is by no means impossible. The U.S. doesn’t need to send more troops or shut down “the whole border.” During the mid-1990s, the U.S. faced an influx of new asylum seekers that led to record new claims and a backlog of nearly 500,000 asylum cases by 1995. As the Migration Policy Institute recently noted, reforms backed by sufficient resources virtually eliminated that backlog over the next decade. This discouraged spurious applications and gave speedier relief to legitimate asylum seekers.
The same approach can work now. Hire and deploy more asylum officers. Appoint more immigration judges and clerks to clear the backlog. In a nation of lawyers, hiring an immigration judge shouldn’t take 21 months. And in 2018, the immigration courts’ record-keeping and casemanagement systems shouldn’t still be largely paper-driven. Compared with the money thrown at border enforcement, investment in the courts has been puny. Little wonder dockets are clogged.
Central America’s desperate migrants won’t stop seeking sanctuary or a better life until conditions in their countries improve. That’s one of many reasons why the U.S. also has an interest in sustaining and increasing its foreign aid. And the flood of asylum applicants reflects, in part, the pull from relatives in the U.S., many of whom are either undocumented or have tenuous legal status. Comprehensive immigration reform is needed to address that.
In the meantime, instead of trying to restrict access to asylum through questionable or outright illegal executive orders, the U.S. should be processing applications more humanely and expeditiously. It really isn’t complicated. In this instance, greater administrative efficiency is the key to protecting the vulnerable and upholding American values and interests.