E.g., 04/18/2019
E.g., 04/18/2019

Policy Solutions to Address Crisis at Border Exist, But Require Will and Staying Power to Execute

Commentaries
April 2019

Policy Solutions to Address Crisis at Border Exist, But Require Will and Staying Power to Execute

Jaime Rodriguez Sr./U.S. Customs and Border Protection

Closing the U.S.-Mexico border, as President Trump is threatening, and cutting off aid to the countries of Central America from which migrants have been fleeing will only feed the crisis that now exists at key points along the border. Shock-and-awe actions, such as family separation, have not worked in taming the forces driving migration from the region—and indeed may be driving more movement. It’s well past time to truly grapple with what explains the increased number of arrivals in recent months and to put real solutions in place, difficult as they will be to execute.

Against the backdrop of historical push-pull factors driving this migration—endemic violence, limited economic opportunity, and poor governance in El Salvador, Guatemala, and Honduras; as well as available jobs and longstanding social and family ties in the United States—it appears the flows have recently spun up rapidly because of a convergence of factors:

  • The rise of migrants banding together and traveling in “caravans” has threatened the business model of smuggling networks. While only a small percentage of migrants have arrived in caravans, their emergence as a safer mode of travel seems to have led smuggling organizations to more aggressively recruit customers, offering new and more options for getting to the United States. Express bus travel and lower smuggling fees for certain services or combinations (with reduced costs if an adult travels with a child) are features of these changes, as is the advent of “large groups,” the term U.S. Customs and Border Protection (CBP) uses for groups of 100 people or more arriving at the border together.
  • The start-and-stop nature of the administration’s efforts to deter asylum seekers has had the opposite effect, seemingly spurring on prospective migrants to journey to the United States before policies harden further. In addition to the zero-tolerance policy that generated family separation, other measures taken by the administration have narrowed the criteria for asylum eligibility, attempted to prohibit applications between ports of entry, and are requiring some asylum seekers to remain in Mexico during the pendency of their claims. The actions have been rapid-fire and stop-start, because of political pushback and court rulings. Combined with telegraphing construction of a wall, the perception has clearly taken hold to migrate now, before policies become more restrictive. 
  • The political climate and government instability in Guatemala and Honduras, the countries that account for more than 85 percent of current flows, have been steadily worsening. Honduras is in a political stalemate and Guatemala is beset by rampant corruption as it approaches its next presidential election with no candidates who offer anything different. Such lack of hope makes people—especially the young—more prone to migrate. 
  • Drought, crop disease, and water shortages have disrupted agriculture and caused food insecurity in the Northern Triangle countries.
  • Tight U.S. labor markets have made jobs readily available in certain sectors.

The recent flows are not sustainable, and the breakdowns in the immigration enforcement system are cascading rapidly. Overwhelmed government officials are releasing migrants into the United States in large numbers, without full processing and vetting. They are dropping off migrants at churches and bus stations in border communities with little or no notice, overwhelming local actors and already inadequate facilities and support resources.

Among the answers the administration is seeking are to amend the Trafficking Victims Protection Reauthorization Act of 2008, which governs the treatment of unaccompanied children, as well as to change the protections in the 1997 Flores settlement, which limits the time in detention of families. Such measures are not likely to be enacted by Congress, fail to adequately address the actual roots of this problem, and ignore recommendations by medical professionals against detaining children.

Indeed, as Figure 1 below shows, unaccompanied children are not where the sizeable increase in arrivals are, though they appear to be on pace to equal the numbers during the peak year of 2014. Instead, the sharp increases are in family migration, which spiked the month following the end of the family-separation policy and have continued unabated since. The migrate-now phenomenon is vividly underscored by the trend these data demonstrate.

Figure 1. Monthly Border Patrol Southwest Border Apprehensions of Unaccompanied Children and Family Units, FY 2012-19 YTD*

* The 2019 data are through February 2019.
Sources: U.S. Customs and Border Protection (CBP), “Southwest Border Migration FY 2019,” updated March 5, 2019, www.cbp.gov/newsroom/stats/sw-border-migration; U.S. Border Patrol, "Total Unaccompanied Alien Children (0-17 Years Old) Apprehensions by Month," accessed March 29, 2019, www.cbp.gov/sites/default/files/assets/documents/2019-Mar/bp-total-monthly-uacs-sector-fy2010-fy2018.pdf; U.S. Border Patrol, “Total Family Unit Apprehensions by Month,” accessed March 29, 2019, www.cbp.gov/sites/default/files/assets/documents/2019-Mar/bp-total-monthly-family-units-sector-fy13-fy18.pdf; CBP, "United States Border Patrol Southwest Family Unit Subject and Unaccompanied Alien Children Apprehensions Fiscal Year 2016," updated October 18, 2016, www.cbp.gov/newsroom/stats/southwest-border-unaccompanied-children/fy-2016; U.S. Border Patrol, “Total Illegal Alien Apprehensions by Month,” accessed March 26, 2019, www.cbp.gov/sites/default/files/assets/documents/2019-Mar/bp-total-monthly-apps-sector-area-fy2018.pdf.

Given the circumstances surrounding Central American migration in recent months, as well as historically, there are a range of responses the administration and Congress could take immediately to address and begin to resolve the crisis. They need to be coupled with others that require a longer-term horizon.

Immediate Term

First, the Department of Homeland Security (DHS) could have a quick effect on the flows by equipping the asylum system with the means to do its work effectively. This would require changing how asylum processing takes place at the U.S.-Mexico border. Asylum officers from U.S. Citizenship and Immigration Services (USCIS) conduct an initial screening interview (the “credible fear” interview) to determine if the applicant has a “significant possibility” of establishing eligibility for asylum. Those who pass are then allowed into the United States where they can apply for asylum before an immigration judge. But because of massive backlogs in the immigration court system, such hearings are currently two, three, or even four years off. These long delays serve as an incentive for those without protection needs to also seek asylum, overburdening the system.

As we have argued for months, the administration could change how asylum processing occurs at the border and allow asylum officers to fully decide cases. This way, final determinations could be made within months, not years, in a nonadversarial, less resource-intensive setting than before judges in courtrooms. Cases that are granted would reduce the numbers being added to court caseloads and those eligible for protection would get it in a timely manner, while those who are ineligible would be returned to their home country.

Under this streamlined procedure, those found ineligible for asylum should have a chance to appeal to an immigration judge. However, the immigration courts should designate dockets or groups of judges to adjudicate such cases, again in order to build timeliness into the system and make possible the return of those to their home countries whose appeals fail. This new reality would be quickly understood by would-be migrants who do not have strong—or any—protection claims.

At the same time, fairness is an essential hallmark of a healthy asylum system. To that end, the Justice Department should restore the criteria that permitted violence by nonstate actors to be considered in deciding asylum cases, both by asylum officers and immigration judges. During his time as attorney general, Jeff Sessions enacted a legal change that made it much more difficult for victims of gang and domestic violence to qualify for asylum.

The proposal outlined above, which can be done administratively and by allocating and managing resources differently, would change the perverse incentives that lead people to claim asylum regardless of whether they may be eligible, just as it would preserve and strengthen the integrity of the asylum system.

Second, some share of the billions of dollars newly available to CBP and DHS ($2 billion in additional appropriations for CBP from the agreement that ended the shutdown and $1 billion reprogrammed by the Department of Defense in furtherance of the president’s national emergency declaration to get funds to build new border barriers) should be directed at deepening the ability of the asylum system to work in response to the crisis at the border.

The size of the asylum officer corps should be increased and funds already provided for new immigration judges should be used to hire and train on an urgent, emergency footing. In addition, border locations and communities must be funded to set up reception centers suited to processing families and children.

Funding should also support alternatives to detention, principally the use of ankle bracelets, as more cost effective and less harmful than detention.  A network of community-based case management practitioners and legal representation should also be built in to ensure appearance at asylum interviews and hearings at the high rates pilot programs for such policies have demonstrated.

Third, the administration must work in close partnership with Mexico, whose position on Central American migration and migrants has changed under its new president to focus on human rights, economic development, and regional responsibilities. Migrants can get work permits in Mexico, which officials say is experiencing labor shortages, and can also apply for asylum there. 

However, Mexico’s capacity to implement its goals is insufficient. The United States could help by supporting training and technical assistance, either directly or through the UN High Commissioner for Refugees (UNHCR) and the International Organization for Migration (IOM). Both are working intensively with Mexico to strengthen its migration management efforts by supporting INM, the Mexican immigration agency, and the significantly underfunded COMAR, its asylum agency,

Security cooperation with Mexico is equally important and attainable. In recent years, Mexico has returned far more migrants to Central America than has the United States. Returns are continuing under its new presidency. In response to indications of a new caravan from Honduras, Mexico reports it will “contain” migrants seeking to cross the Isthmus of Tehuantepec, the narrow stretch of approximately 130 miles across Oaxaca and Veracruz through which Central Americans must pass. Collaboration with Mexican law enforcement is also fruitful in identifying security threats and disrupting networks of human smugglers who move migrants on foot or by bus and other means from Central America through Mexico.

Deepening engagement on these and related fronts is very much in the U.S. national interest at this time.

Finally, Homeland Security Secretary Kirstjen Nielsen has said that the United States should revive an in-country refugee processing program that would consider protection cases in the region without people setting off on long journeys to reach the United States. Such a program, similar to one created for Central American youth by the Obama administration and terminated by the Trump administration, would be another helpful piece of the puzzle in alleviating pressure on the border.

Longer Term

In the longer term, the United States must help foster a more stable, economically productive Central America. Until Central Americans can experience political stability and citizen security in their home countries, political turmoil, gang violence, corruption, increased climate and agricultural challenges, and weak economies will drive people to seek better life prospects. Migration is one of the answers to which they will invariably turn.

Secretary Nielsen just signed an accord with Central American governments to combat human trafficking and smuggling, fight transnational criminal organizations and gangs, expand information and intelligence sharing, and strengthen security. This is a positive step. The prospect of cutting aid estimated at $500 million as a punitive measure because of migration from the region moves the dial in exactly the wrong direction and is antithetical to U.S. interests. The reality is that even more will need to happen in the realm of sustained, continued partnership to deliver citizen security, improved policing, progress against corruption, and economies that can successfully reintegrate returnees.

There are no quick fixes to the problems now playing out at the border. However, both immediate and longer-term policy solutions are there for the United States if it is serious about managing and reducing further increases in the flows and in addressing the causes of this migration. What is needed is the willingness and staying power to act on these policy solutions.