E.g., 08/23/2019
E.g., 08/23/2019

A Wall Cannot Fix Problems at Border; Smart Solutions for Asylum Crisis Can

Commentaries
January 2019

A Wall Cannot Fix Problems at Border; Smart Solutions for Asylum Crisis Can

Mani Albrecht/U.S. Customs and Border Protection

As he has done throughout his campaign and presidency, Donald Trump is again painting a picture of the U.S.-Mexico border in crisis, having now forced a record-setting government shutdown over his demand for $5.7 billion in border wall funding. In this first test of divided government, with Democrats back in power in the House, the President’s endgame has been to dangle the declaration of a national emergency and the use of disaster-relief dollars to build his wall and save face with his voters.

Yet what the President calls a border crisis is in fact a crisis in the asylum system—one that has been worsened at every turn by his administration’s harsh policies and rhetoric.

Whether steel slats or concrete, a wall will not fix these problems. Instead, the money would be far better spent retooling an overwhelmed asylum system, adapting border enforcement infrastructure and procedures to respond to the changing composition of arrivals, and working cooperatively with Mexico to tackle the factors propelling Central Americans to flee.

A Changed Border Reality

To be clear, there is no border security crisis. Border security is more robust than ever, and apprehensions of illegal border crossers last year were one-fourth the 1.6 million recorded during their peak, in fiscal year (FY) 2000.

Beyond a drop in illegal crossings, the composition of arrivals at the U.S.-Mexico border has changed dramatically. The decades-long flows of largely young Mexican males crossing illicitly and evading the Border Patrol have been replaced by Central Americans fleeing a mixture of violence and poverty. Increasing numbers of families and unaccompanied children seek out Border Patrol agents so they can turn themselves in and apply for asylum. Overall, 40 percent of those apprehended in FY 2018 were families or unaccompanied children, compared to 10 percent six years earlier.

Figure 1. Family and Unaccompanied Minor Share of Southwest Border Apprehensions, FY 2012-19*

* 2019 includes apprehensions for the first three months of fiscal year (FY) 2019 (October-December 2018).
Sources: U.S. Customs and Border Protection (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; Border Patrol, “Total Family Unit Apprehensions by Month,” accessed January 8, 2019, www.cbp.gov/sites/default/files/assets/documents/2017-Dec/BP%20Total%20Monthly%20Family%20Units%20by%20Sector%2C%20FY13-FY17.pdf; CBP, “Southwest Border Migration FY 2018,” updated November 9, 2018, www.cbp.gov/newsroom/stats/sw-border-migration/fy-2018; CBP, “Southwest Border Migration FY 2019,” updated December 10, 2018, www.cbp.gov/newsroom/stats/sw-border-migration; Department of Homeland Security, "DHS Releases Southwest Border Enforcement Statistics" (press release, January 9, 2019), www.dhs.gov/news/2019/01/09/dhs-releases-southwest-border-enforcement-statistics.

Sow the Wind, Reap the Whirlwind

In the face of this growing humanitarian challenge, the administration’s answers have all been punitive. It has separated children from their parents, narrowed the avenues to file for asylum, and tightened criteria for granting asylum. It has also created chaotic conditions in Mexican border communities by stalling there, in deteriorating living conditions, thousands of would-be asylum seekers who—as instructed—are seeking to present themselves at a port of entry.

These measures have all backfired, further exacerbating the crisis. There is a strong connection between the start and stop of harsh policies and the rising numbers of arrivals of those seeking protection. The end of the failed family-separation efforts last summer ushered in the highest numbers of family apprehensions on record: 16,658 in September, 23,115 in October, 25,172 in November, and 27,518 in December.

With no seeming change in the migration push factors, the most likely explanation is that migrants—based on information they get from others already in the United States and from smugglers—are trying to get here to make their asylum claims before the administration brings down the next hammer.

Indeed, the administration has announced an array of punitive policies to come. All face substantial implementation obstacles. But they add up to the possibility of significantly reduced access to applying for or being granted asylum. And, in the meantime, there is widespread confusion and deep hardship resulting from current policies and practices, such as:

  • Remain in Mexico. On December 20, Homeland Security Secretary Kirstjen Nielsen announced that asylum applicants arriving at the border illegally or without proper documentation would be returned to Mexico for the duration of their immigration proceedings. The policy has severely strained relations and critical cooperation with Mexico’s new government and has not taken effect because Mexico refuses to agree to it.
  • The asylum ban. On November 8 and 9, the administration published an interim final regulation and a presidential proclamation that had the effect of banning illegal border crossers from ever receiving asylum. The regulation was enjoined by a federal judge on November 20.
  • Family detention. On September 7, the administration published a proposed regulation that would allow for the indefinite detention of families. The final rule will be subject to review by U.S. District Judge Dolly Gee, who oversees a government settlement, known as the Flores decision, on the immigration detention of children.
  • Detaining asylum seekers. Former Attorney General Jeff Sessions referred a case to himself, Matter of M-G-G-, and ruled that the Attorney General may determine that immigration judges can no longer hold bond hearings for detained asylum seekers. A final decision is to be made by his successor.
  • Family separation. Trump has expressed doubts about his June 20 executive order ending family separation and could reinstate it in some fashion. The administration appears to be weighing a “binary choice” policy, under which parents would have to decide whether to be detained with or without their children.

None of these measures speak to the need to properly adjudicate asylum claims so that those eligible to receive protection get it and those who are not can be returned to their home countries. This can only be done through fixes to an asylum system in crisis because growing backlogs have now resulted in years-long waits to complete cases.

We offered a blueprint to begin to repair the system in a recent report. The path should be one that preserves providing humanitarian protection while also discouraging unfounded asylum claims.

Out-of-Sync Border Infrastructure

Today’s border enforcement infrastructure and procedures are poorly suited to the new need to readily and humanely determine who has a protection claim and who does not. The recent deaths of two young children in Border Patrol custody are the most acute examples yet of the imperative for changes in dealing with increasingly vulnerable populations exhausted from the stresses and dangers of lengthy trips.

The Department of Homeland Security (DHS) has been ill-prepared to handle these changing conditions and is scrambling to deploy additional medical personnel. And U.S. Immigration and Customs Enforcement (ICE) has been running out of detention space to hold arrivals and has begun releasing hundreds at bus stations, often without alerting local shelters.

A Smarter Way Forward

For considerably less than the $5.7 billion for the wall and by managing existing resources differently, the administration could turn this ship toward a different sea. Actions that would have a far greater effect than a wall include:

  • Changing asylum processing to allow DHS’ well-trained, professional cadre of asylum officers to not only do the initial credible-fear screening of border cases but to see the cases through to completion. Currently, cases that pass the credible-fear screening are turned over to the immigration courts, where they languish for years because of huge backlogs there. Adjusting who does the processing would relieve some of the burdens on immigration judges and the immigration court system and inject timeliness and fairness back into asylum processing, giving both quicker resolution to meritorious cases and ending the perverse incentives that encourage some people without protection claims to file.
  • Establishing a border court division of the immigration court system to hear cases denied by asylum officers. This would move current cases through to completion, buying time for hiring and training additional immigration judges and limiting the growth of court case backlogs that now exceed 800,000. Immigration court resources have not been sized in proportion to the dramatic growth of front-line border enforcement resources in the post 9/11 period. Additional asylum officers may also be needed. These imbalances must be addressed for border enforcement to succeed, given the dramatic change in the character of today’s migration flows.
  • Refitting Border Patrol stations and ICE facilities to accommodate the new flows of predominantly families and children. Today’s needs include improved medical care; suitable detention facilities and capacity; interagency processing arrangements to get children out of Border Patrol and ICE custody within short, legally required periods; and strengthened partnerships with nongovernmental stakeholders to manage the new demands presented by these increasingly humanitarian flows.
  • Greater focus on improving capacity and infrastructure at ports of entry, which have not received the same attention as operations between ports of entry. Technology to improve the detection of illicit traffic is essential, especially to interdict the drugs and contraband that the President wrongly claims would be stopped by a wall. Moreover, by declaring that asylum applications would be accepted only at legal ports of entry, but limiting the number allowed each day to file claims (a practice known as metering), the administration is forcing asylum seekers to choose between waiting for months in Mexico or attempting to cross illegally. Inadequate capacity at ports of entry to respond to such edicts has caused a growing humanitarian crisis on both sides of the border.

More could be added to this list and it should not preclude upgraded barriers, or even new ones, at high-traffic or especially dangerous areas where barriers and other border technology may well be needed. But it is illustrative of what forward-looking border security should look like.

The all-important further element is the longer-term challenge of changing the conditions in Central America that are generating today’s flows—one the United States can best address in concert with its neighbors. Here, Mexico is an essential player and partner. Under its new government, Mexico has begun to enlarge its asylum capabilities and offer work opportunities to Central Americans. Instead of Remain in Mexico, the United States should be supporting Mexico’s efforts to strengthen its capacities to provide protection and work for migrants from neighboring countries.

Legal, safe, and orderly migration should be the aim. To get there, the serious security challenges in the Northern Triangle countries of Central America must be addressed, as must improving economic prospects for its populations. The United States and Mexico are essential players in advancing and supporting better tomorrows in these countries.

The policies and expenditures that are needed and have been shown to succeed represent a far wiser investment than building a wall. But they require leaving campaign sloganeering behind and turning to the serious, difficult, longer-term business of governing.

The authors thank Jessica Bolter for her research support.