E.g., 11/19/2018
E.g., 11/19/2018

Asylum Reform, Not Troops, Is the Solution to Current Border Reality

Commentary
November 2018

Asylum Reform, Not Troops, Is the Solution to Current Border Reality

Sgt. Mark Otte/National Guard

Resting his closing argument in the mid-term elections on stopping caravan migrants from “rushing” the U.S.-Mexico border, President Trump ordered the deployment of more than 7,000 active-duty military to the border—more than triple the number of troops in Syria. And the administration is reportedly finalizing a presidential proclamation that would bar Central Americans from applying for asylum at all.

These responses, like other hardline immigration measures put forth by the Trump administration, seek a shock-and-awe solution to a problem that will not be solved by bombast. Today’s arrivals from Central America do not represent a national security threat or crisis; they are fleeing deep poverty, violence, and insecurity. To be sure, the rising number of families and unaccompanied children arriving in recent years is a serious concern, and the banding together of large caravans is a worrying development that the United States—in concert with its neighbors—must address.

However, there is another path that preserves the opportunity to provide humanitarian protection while also discouraging unfounded asylum claims and the formation of caravans as a new migration pattern in our region. This path requires immediate, near-, and longer-term actions that should begin with changes to the U.S. asylum system, which is, indeed, in crisis in the face of growing backlogs of cases that take years to complete.

It is worth remembering that today’s asylum challenges are not unprecedented. During my time as Commissioner of the Immigration and Naturalization Service, the asylum system labored under similar stresses. Fundamental reforms in the mid-1990s established principles of timeliness and fairness in deciding cases as the means to providing protection readily to those who were eligible and discouraging weak or unfounded applications by those who were not. As a result, application levels dropped dramatically and approval rates rose—indicating that the reforms disincentivized dubious claims.

The asylum system urgently needs to be retooled again. The new reality is flows across the Southwest border that have changed from primarily Mexican young men seeking economic opportunity to more complex, mixed flows of predominantly Central Americans, especially families. Some are escaping poverty; others seek protection from violence that may make them eligible for asylum. Border enforcement must include the ability to determine which is which in order to respond effectively. With timely, fair processing of asylum claims, deterrence becomes inherent; long waits in multiyear backlogs are eliminated, erasing perverse incentives to misuse the system.

In a recent report, the Migration Policy Institute (MPI) proposed changes that could be implemented without legislation. They begin with gaining control over the current and prospective asylum caseload by processing cases on a last-in, first-out basis. The administration has begun doing this in some instances, but the approach must be broadened.

Our most significant recommendation for immediate action is to authorize U.S. Citizenship and Immigration Services (USCIS) Asylum Corps officers, who conduct the initial screening interview at the border (known as the credible-fear determination), to complete the full adjudication of these cases. Presently, asylum seekers who pass the credible-fear test are referred to immigration courts, where they are at the end of an all-time high backlog of more than 760,000 cases. Because of a remarkably inefficient process, immigration judges must begin fact-finding on these cases from scratch, likely years down the line.

Allowing the expert USCIS professionals who make the initial adjudication to see the case through to completion would greatly increase the speed and effectiveness of the system. This procedure is already in place for other categories of asylum cases, having proven its worth in time, money, and the quality of decision-making. Cases denied by asylum officers can be appealed to immigration judges, but the growth of their swelling dockets would be slowed.

Similarly, the immigration court system could—again without needing legislation— establish a border court division for handling border asylum case appeals.

The goal of such changes would be to meet the statutory standard of six months or less for deciding asylum cases. Such a coordinated approach to today’s challenges by the Departments of Justice and Homeland Security would enable the United States to provide protection to those who are eligible and deny it in quicker fashion to those who are not. Timely, fair processing would send a signal to would-be migrants that those who do not qualify for protection will not succeed in remaining in the United States. This is what constitutes meaningful deterrence.

The resources that would help such measures succeed would also place the asylum system on a sustainable footing more broadly. Such expenditures would represent a far-wiser investment than the money spent on dispatching military contingents to the border, at a potential cost of as much as $110 million by mid-December if the President’s upper range of 15,000 troops are deployed. (This estimate does not include the $182 million already being spent this fiscal year on the 2,000 National Guard troops sent to the border.)

Beyond Asylum

Asylum was granted in fewer than one-quarter of cases for Guatemalans, Hondurans, and Salvadorans in fiscal 2018. Thus, most Central Americans seeking protection are not likely to be eligible for asylum. That does not mean, however, that they are not in peril and facing dire life choices. So beyond the asylum system, there are challenging longer-term measures to pursue to ensure that vulnerable populations in nearby countries are no longer compelled to hazard the dangerous journey north.

Here, Mexico is an essential player and partner, as are smaller neighboring countries such as Costa Rica and Belize. It is in the national interest of the United States to deepen its engagement and leadership throughout the region to help these countries build asylum and protection regimes for those nearby displaced by violence. This is especially true with Mexico which has, in response to the latest caravans, begun to enlarge its asylum capabilities and provide asylum and work opportunities in southern Mexico to Central American migrants. Mexico and the United States should set the goal of establishing a safe third-country agreement, whereby the United States and the international community can be confident of humanitarian protection in the first safe country reached, as is the case between Canada and the United States.

Finally, legal, safe, and orderly migration should be the aim throughout Central and North America. To get there, the serious security challenges in the Northern Triangle countries must be addressed, as must improving economic prospects for its populations. Ultimately, these are goals that must be embraced and accomplished by the countries themselves. But the United States can play an important role in advancing and supporting promising efforts by these countries on a sustained basis. In particular, the United States should promote durable citizen-security, anti-corruption, and economic development measures, as well as migration-management regimes that include robust reception and reintegration efforts.

Instead of conjuring a crisis that does not exist (it cannot be said too often that border apprehensions today are one-fourth the level they were at their peak), the Trump administration and federal agencies should take up solutions that have been shown to work and commit to the serious, difficult, longer-term business of mitigating the harrowing circumstances that cause and characterize migrant caravans.

The author thanks Sarah Pierce for her assistance.