E.g., 02/27/2024
E.g., 02/27/2024
Revamping Asylum at the U.S.-Mexico Border: A Workable Rescue?
CBP agents process asylum seeker at El Paso, Texas port of entry
Glenn Fawcett/CBP

The border asylum proposed rule the Biden administration unveiled in February signals a new resolve to lean into the difficulties of border control in an era of rising and rapidly evolving migration by establishing incentives and disincentives for gaining access to asylum. It is a bid to save the U.S. asylum system, not shut it down, as some contend.

Whether it can succeed, however, depends on how it is implemented. The key question is whether the proposed system preserves meaningful access to asylum, while also providing a more orderly process for both protection and enforcement at the U.S.-Mexico border. The answers depend both on effective implementation and on other steps that are beyond the bounds of the proposed rule, including the need to hire large numbers of asylum officers and immigration judges—administration asks that Congress has not granted to date.

Criticism of the proposed asylum changes has been swift, with some congressional leaders and humanitarian and immigrant-rights groups deeming them a return to the playbook of the prior administration. The new policies do involve some untested strategies that represent shocks to the system that has long been in place. But facing rapidly changing realities at the border and waning public confidence in the asylum system's viability under these circumstances, the administration is responding with what it sees as one of the few new options it can tap. Because May 11 is looming, the date the government’s pandemic emergency declaration is scheduled to be lifted—and with it the related Title 42 border expulsions policy that has resulted in migrants being expelled from the southwest border more than 2.6 million times since 2020—the pressures at the border are further escalating operationally and politically.

The new realities driving the policy changes are the highest level of migrant encounters ever recorded at the southwest border—more than 2.3 million in fiscal year (FY) 2022—as well as sharp diversification of nationalities, fraught diplomatic relations with some of the countries representing ever-larger shares of asylum seeker arrivals, and complex migration motivations that make it increasingly difficult to assess claims for protection.

Against this backdrop, the proposed rule, due to be implemented after May 11, instructs asylum seekers to apply for entry into the United States at official ports of entry by scheduling appointments in advance through the CBP One app. Those who pass what is known as credible fear screening would be permitted entry to the United States to pursue their asylum cases.

The incentive to comply with this instruction is strong: applicants will be given a time and place to be screened, avoiding the cost and dangers of heading to the border with smugglers, and with a strong likelihood—given high screen-in rates—of being allowed into the country for further processing. From the government’s standpoint, the appointment approach enables queues that are orderly and systematic, compared with unpredictable surges and humanitarian crises in often-remote border locations that have insufficient processing capabilities and facilities.

The disincentives laid out in the proposed rule are intended to redirect asylum seekers away from areas that are between ports of entry, which have been increasingly overwhelmed. To break those patterns, the rule establishes a presumption of ineligibility for asylum for those who cross the border without authorization and would make them subject to expedited removal.

Migrants could rebut the presumption of ineligibility if they could show, for example, that they faced a medical emergency, imminent threats to life, were victims of trafficking, or had been denied asylum elsewhere. Unaccompanied minors would also be exempted.

Especially in the short term, the proposed rule aims to decrease the number of border crossers arriving between ports of entry and could result in significantly increased numbers of removals to Mexico and border crossers’ home countries. But over the long term, it could—if properly implemented and resourced—provide a more orderly process that manages numbers and provides protection to those who need it.

Success Will Turn on a New Balance of Actions

Myriad details and unanswered questions lie beneath this framework. By seeking to reduce unauthorized crossings and redirect flows away from the harsh conditions that can be encountered between ports of entry, the administration is aiming to sufficiently free up the resources needed to implement asylum system reforms it has made but has not been able to execute given the huge number of arrivals. These reforms include faster and fairer processing of asylum applications and more extensive availability of legal services for asylum seekers to reduce years-long waiting times that invite weak claims while also leaving people in need of protection in limbo. Indeed, finding ways to provide legal services to asylum applicants might be the single most important step in ensuring a timely and fair process. Making all of this work in tandem will be a heavy lift.

At the same time, the United States has agreed to admit 30,000 people per month through special sponsorship programs for Cubans, Haitians, Nicaraguans, and Venezuelans. These programs provide legal migration alternatives for countries that are the origins for the most dramatic increases in encounters during the past year and where conditions of poverty and repression are extreme. One hallmark of the administration’s approach is a recognition that enforcement needs to be coupled with legal pathways to be effective. Other legal pathways beyond asylum, such as employment-based visas, are needed to make the asylum system work as well.

The Bet to Achieve a Reset

Thus, in this latest effort to gain control over the border, the administration is making a big bet—that by redirecting asylum seekers to official border crossings and providing alternative legal entry humanitarian programs to the most rapidly increasing flows, a reset will take hold that allows for timely, fair asylum processing and manageable post-Title 42 enforcement. Whether that bet pays off depends on a wide-ranging set of factors that are both within and beyond the governments control.

These factors include implementation challenges such as processing capacity at ports of entry to receive the rechanneled flows, the availability of asylum officers and immigration judges, and addressing the CBP One app’s significant technology challenges. Ports of entry are designed to move authorized travelers through quickly. They are not able to accommodate large numbers for the more extended processing required for asylum seekers. As a result, offsite, multiagency processing facilities—already envisioned but not yet implemented—will need to be stood up quickly.

The numbers of asylum officers and immigration judges deployed to border cases will need to be dramatically expanded, but until Congress provides the necessary resources, further strains will be placed on workforces whose numbers are already inadequate for implementing earlier border asylum rule changes.

CBP One app shortcomings that humanitarian organizations are seeing in real time through their experience on the ground working with asylum seekers must also be addressed. Most importantly, the app is currently available only in areas extending south of the border as far as Mexico City. Thus, migrants making appointments would already need to be on the move. The app must be broadly available geographically to meet its purpose of deterring spontaneous arrivals and instead providing a reliable system and timetable for orderly, safe movements. In addition, difficulties with its facial recognition for differing skin colors and handling appointment information for families, as compared with single individuals, need to be ironed out.

Similarly, wait times for appointments cannot stretch for months, lest would-be applicants become discouraged or face dangers that lead them to abandon the process and revert to crossing attempts between ports of entry. It would be wise to explore developing prescreening options in countries of origin or transit that would provide access to expedited appointments. And for those who do not pass credible fear screening during their appointment, orderly removal procedures will be needed.

The dramatic scaling up necessary to implement new policies of the scope and reach that the administration has outlined inevitably will be accompanied by capacity and technology issues. More problematic will be the certainty of legal challenges to the new policy.

Legal Issues

The overriding legal question is whether different standards for processing asylum seekers who enter between, rather than through, ports of entry will withstand judicial scrutiny. U.S. and international laws call for access to asylum on the territory of another country, in this case the United States, to make a protection claim. It remains to be seen whether the new rule’s exceptions and rebuttable presumption of ineligibility for asylum, taken together with port of entry provisions, would be upheld in courts.

A European Court of Human Rights case may be instructive. It involved the Spanish government’s actions at one of its fenced-in enclaves in Morocco, where asylum claims can be submitted at border crossings. The court determined that under the European Convention on Human Rights, it was legal for the Spanish government to expel the dozens of migrants who had rushed and climbed the border fencing during an incident in 2014 so long as a credible asylum process was available at ports of entry. This ruling depended, in part, on finding that the possibility existed to submit an asylum claim at a port of entry.

Situating Asylum Changes in a Broader Regional Agenda

Finally, the Biden administration’s proposed rule relies heavily on bilateral and multilateral cooperation within the hemisphere, first and foremost with Mexico, which is presently accepting the return of 30,000 nationals per month from Cuba, Haiti, Nicaragua, and Venezuela—countries with which the United States has limited diplomatic ties or where state fragility make returns unwise. Such continuing cooperation is essential for the United States going forward, but it is not yet guaranteed.

Having been signatories last year to the Los Angeles Declaration on Migration and Protection, many neighbor countries have subscribed to principles of shared responsibility for addressing the region-wide challenges posed by increasing, and increasingly hemispheric, migration flows. However, maintaining this cooperation requires demonstrating that the U.S. government is building safe, orderly, and regular migration and asylum processes, not just passing its migration enforcement strategies on to other countries.

Putting those principles into practice requires building viable asylum and legal immigration systems, calibrating visa policies, establishing workable border crossing procedures, upgrading travel and communications technology, strengthening governance and rule-of-law regimes, and job creation. These are long-term endeavors that require sustained attention and support from the United States and others. Without them, countries, especially the United States, cannot succeed going it alone.

Taken together, the proposed asylum processing changes, new humanitarian admissions programs, heightened regional collaboration, and other elements add up to a new level of scope and ambition in the administration’s border policy and priorities for rescuing a broken asylum system.

When President Joe Biden previewed the changes in January, a reporter asked whether he believes migration is a human right. He responded, I think it is a human right... [but] the people in this country have basic fundamental rights to assure the people who are coming have been checked out... There has to be an orderly process and rationale to it.”

To that end, the new border asylum rule seeks to tie together the strands of what the administration has argued for in border management since taking office but has not been able to achieve. Now comes the daunting task of mobilizing cross-agency and cross-national capabilities anew to effectively do it. The ultimate question will be whether these efforts can save asylum by generating orderly and fair processes at the border, opening new legal avenues for admission, and deterring unauthorized crossings all at the same time.