Deterrence without Protection of Asylum Seekers

On July 16, the Trump Administration issued a new rule that would significantly reduce the number of persons granted asylum in the United States. It bars consideration of asylum applications from those who transit through countries (other than their own) before attempting to cross the US southern border. In announcing the new policy, Attorney General William Barr noted: “The United States is a generous country but is being completely overwhelmed by the burdens associated with apprehending and processing hundreds of thousands of aliens along the southern border.” The ineptitude of the administration in managing the asylum system has created this crisis, however, not the asylum process itself. This administration has unilaterally made draconian changes in policy without consultation with those within its own bureaucracy who are most responsible for adjudicating asylum decisions. It has also neglected to approach those who represent asylum seekers to explore potential solutions to a problem that has challenged other administrations. Indeed, the Trump administration has done just the opposite, ending or significantly reducing promising programs put in place by his predecessors, such as those that create conditions that allow safe return, make investments in migrant-sending communities, set up refugee screening and resettlement possibilities in home countries, and open regular channels of legal immigration. Its only solutions have been interception, border enforcement and deterrence. 

Consultations with its own employees would have shown how misguided this approach has been. For example, Local 1924 of the American Federation of Government Employees—which represents the interests of more than 2,500 employees of the US Citizenship and Immigration Services (USCIS), including about 150 employees of the Asylum Program—would have explained why it opposes the ‘remain in Mexico’ policies already underway. The amicus brief Local 1924 submitted to the court considering the legality of the policy highlights the risks for those forced to remain in Mexico awaiting asylum hearings in the United States. Its members are deeply concerned that these policies run counter to their legally-mandated role of refugee protection. According to Michael Knowles, the President of Local 1924 and an asylum officer himself, “the situation has caused a crisis of conscience for the dedicated officers who are responsible for administering the asylum program.” 

The State Department’s own human rights report on Mexico, describes kidnappings, torture, arbitrary arrest, and death at the hands of drug cartels and Mexican military and police authorities. The new regulation would exacerbate the problem, leaving asylum seekers stranded in both Mexico and Guatemala—the two principal transit countries—without recourse to due process. The State Department’s report on Guatemala notes the inadequacy of identification and referral mechanisms for potential asylum seekers and lack of training for both migration and police authorities concerning the rules for establishing refugee status. 

There are alternatives to the policies promoted by the administration. The United States faced a similar asylum crisis in the 1990s when there was a backlog of more than 425,000 asylum cases, involving more than one million asylum seekers. The backlog included applicants from El Salvador and Guatemala who had been permitted to renew or pursue new asylum applications because the government acknowledged it had used the wrong standard in assessing their original claims. Growing the backlog encouraged abusive claims as applicants knew it would be years before their applications were adjudicated. The Commissioner of the Immigration and Naturalization Service, the precursor of the immigration bureaus within Department of Homeland Security, launched a series of consultations within and outside of the agency to identify the most effective ways to address the backlog and restore credibility to the system. As someone who participated in these consultations, I can attest to the fact that no one was happy with every facet of the agreement that was eventually reached. However, there was broad consensus that compromise was needed and reasonable actions could protect bona fide refugees while curbing abuse. 

The 1995 reforms included some tough measures for asylum seekers, tempered by a commitment to provide timely protection for those who required it. First, the administration halted processing of the old caseload and worked with Congress to provide alternative routes to legal permanent residency for Central Americans and Haitians who formed a large part of the backlog. Congress did its part, passing the Nicaraguan Adjustment and Central American Relief Act (NACARA), which included some applicants from the former Soviet Union as well, and the Haitian Refugee Immigration Fairness Act (HRIFA). Both offered pathways to permanent residence for the asylum seekers and members of their families.

Second, the reforms delinked asylum and work authorization for new applicants. A commitment was made to process all asylum applications through the immigration court within six months of filing an application. Asylum applicants would not be eligible for work authorization unless the government had delayed proceedings and missed the six-month deadline. 

Third, the administration significantly increased the number of asylum officers and immigration judges to ensure that they could make the six-month commitment. The number of asylum officers increased from 150 to 325, and the number of immigration judges grew from 112 to 179. 

Referred to as LIFO (last in, first out), the process was designed to deter use of the asylum system for work authorization and to speed up the approval of meritorious claims. It appears to have served that purpose. Five years later, the number of new asylum applicants had been cut by 75% and the number of grants of asylum for post-reform applicants had more than doubled.

Although the United States has not been consistent in its treatment of asylum seekers, when we have been at our best, we have recognized that protecting refugees is in our moral fabric, to use language contained in Local 1924’s amicus brief. Yes, numbers matter, particularly when misguided, inept policies combine with large backlogs of un-adjudicated cases to create a “crisis” environment, as is evident today. The solution, however, is not to risk further harm to those who are fleeing persecution and torture by closing the door to asylum seekers. The United States has taken such actions previously to its regret, as in the famous case of the SS St. Louis, whose passengers were refused entry in 1939. More than 250 of its passengers died in the Holocaust. The administration should work with those who know the asylum system best—whether these experts are inside or out of the government—to come up with practicable policies that serve the long term interests of the United States and those seeking refuge.