Policy Statement: How to Manage the Border Without Sacrificing Human Rights
Center for Migration Studies of New York
January 8, 2024
Center for Migration Studies of New York
How to Manage the Border Without Sacrificing Human Rights
January 8, 2024
Congress and the Biden administration are currently considering restrictive immigration policies in an effort to significantly reduce, if not eliminate, the number of migrants arriving at the US-Mexico border seeking protection and safe haven. The proposed policies include raising the standard to access the US asylum system; creating a new executive authority to close the border; expanding the detention of asylum-seekers, including families and children; and extending expedited removal throughout the country, among other items.
While these policies would certainly impact migrants who arrive at the US border, it is unclear whether they would deter people from making the journey in the first place. Poverty, conflict, and persecution are strong push factors that drive migrants to seek safety and self-sufficiency in other countries, and those who choose to flee do not always consider what faces them at the end of the journey.
Moreover, unscrupulous smugglers who prey on migrants will adjust to any new restrictions and seek different ways to enter the United States. While deterrence policies may reduce irregular migration in the short-term, they are unlikely to stem it over the long-term.
The following explores the negative effects of the potential immigration law changes Congress is considering and provides humane alternatives which would prove more effective over the long-term:
Restricting asylum law to shut people out. Congress is considering at least two punitive changes to the asylum system which would effectively deny protection to future asylum-seekers to the United States. First, it would change the legal standard for qualifying for an asylum hearing, known as “credible fear,” from “a significant possibility” of proving persecution to “more likely than not,” a higher threshold under immigration law.
Currently, a majority of asylum-seekers pass the “credible fear” test and qualify for the asylum process, with projections showing a drop to 32 percent under the proposed new standard. Given that asylum-seekers are usually exhausted and fearful upon arriving in the United States, they typically don’t have the evidence they later will assemble for their case and cannot immediately recall all the details of their persecution, therefore the current standard gives them some leeway in offering proof and in telling their stories. With the new standard, it is more likely that bona fide asylum-seekers will be sent back to danger and possible harm.
Congress also is considering the enactment of disqualification from US asylum protection for those who do not apply for asylum in a “transit” country, such as Mexico. As some advocates have stated, this amounts to an “asylum ban,” as countries in the region do not have functioning asylum systems or have limited resources in processing cases, as in Mexico. Without assistance to help transit countries establish functioning asylum systems, the policy amounts to a ban on asylum in the United States, a violation of both domestic and international law.
There are rational and humane fixes to the asylum system. A more long-lasting and humane approach to border control involves improving the asylum system to make it more efficient at processing cases, always without undermining due process. Currently, the wait time for an asylum hearing is approaching five years and the asylum case backlog has reached nearly 975,000 cases. In FY 2022, the Executive Office of Immigration Review (EOIR), which operates the immigration court system, received $760 million, just 3 percent of the combined budgets of the DHS enforcement agencies, Interior and Customs Enforcement (ICE) and Customs and Border Protection (CBP).
Recent research by the Center for Migration Studies of New York (CMS) shows that the causes of the immigration court backlog lie within systemic failures in the broader immigration system and could be remedied with better funding and coherent rules.
Without more funding for infrastructure, hearing officers, asylum judges, and legal representation, the backlog and wait times will grow. A positive aspect of the Biden administration’s supplemental budget request is that it finances 1,470 attorneys and 375 immigration judge teams to begin reducing the court backlog. According to the CMS study, such backlogs could be eliminated with changes to the system, including additional funding and “broad immigration reform legislation that could ease pressure on the enforcement and court systems.”
Expanding authority to close the border. Congress is considering the adoption of a new executive authority to close the border at times when an administration judges that the number of migrants arriving is too high. Customs and Border Protection (CBP) of the Department of Homeland Security (DHS) already shuts down ports-of-entry at certain times in order to process migrants.
Uncontrolled authority will place vulnerable migrants in harm’s way, adversely impact border communities, and increase illegal crossings. Providing an administration broad authority to “shut down” the border, akin to the Title 42 process used during the COVID-19 crisis, could essentially place asylum-seekers, especially women and children, at risk for harm by criminal elements in transit countries. This would also adversely impact border communities, who depend on cross-border commerce and business activity for their economies.
According to the Hope Border Institute, shutting down the border could lead to increased illegal entries, as desperate asylum-seekers, led by unscrupulous smugglers, attempt to find protection in the United States. At a minimum, such authority should be highly limited and only exercised upon certain reasonable triggers and with time limits.
Mandatory detention of asylum-seekers. The Republican proposal would require that asylum-seekers be detained as they await their asylum hearing. This includes families and children. Not only would this be inhumane, it also would be wildly expensive, as some estimates conclude it would cost several billion dollars a year over the next decade.
It also would be a boon for the private prison industry, which has shown a tendency to fill beds and cut costs, leaving those who are detained without basic care. The detained asylum-seekers also would have less access to legal representation, especially if they are detained in remote areas.
There are less costly and more humane alternatives to physical detention. A major investment in alternative to detention programs, which have been proven to ensure that asylum-seekers receive appropriate services and appear for their hearings, would ensure that the human rights of asylum-seekers are protected and that they fully engage in the asylum process.
The programs would provide supportive referral services to asylum-seekers and their families. Several administrations have tested this model as pilot projects, to much success, finding that as many as 99 percent of asylum-seekers appeared at their hearings.
Limiting humanitarian parole. Another proposal would limit the President’s ability to parole large populations into the country, thus bypassing the regular channels, including the US refugee program. This proposal has nothing to do with border movement; it is a gratuitous limitation on the executive power to protect people fleeing particular violent conditions, including war.
For example, the Biden administration has used the authority to bring to safety about 78,000 Afghans since the end of the war there, and 130,000 Ukrainians after the invasion of Ukraine by Russia. The administration has also used the authority to allow up to 30,000 Venezuelans, Haitians, Cubans, and Nicaraguans—nations in this hemisphere that have oppressive governments and security issues—to legally enter the United States each month.
This proposal would not reduce the numbers on the southern border, the purported reason for the Republican’s restrictive measures. In fact, it would have the opposite effect, as refugees from wars would try to reach the US-Mexico border by other means. It also would restrict the ability of the United States to respond to emergency situations globally, especially in conflicts in which the United States is involved or it is in the best interest of the United States to respond to a humanitarian crisis.
Parolees need a pathway to citizenship. One of the challenges of humanitarian parole is that it is a temporary status and that groups paroled into the country face an uncertain future, including possible deportation. Congress should recognize the importance of this immigration tool and provide permanence for populations which will likely never be able to return to their country. This is certainly the case of Afghans, who face danger if they are forced to return to Afghanistan under Taliban rule. The Afghan Adjustment Act is an example of legislation which would address this issue.
Expanding expedited removal to the interior of the country. Another Republican proposal being considered by Congress is expanding the practice of expedited removal to the interior of the country. Expedited removal permits law enforcement to remove an individual without a deportation hearing, and is now only used within 100 miles of the US border. The Republican proposal would authorize these deportations procedures anywhere in the United States, in effect creating a new expulsion authority with no due process protections.
The proposal violates due process, is unworkable, and is contrary to American values. Again, this is an idea which would not impact the numbers arriving at the southern border, but is designed to remove those who have already entered the country and, in many cases, have already established equities in the country. And, as many experts have argued, it would increase racial profiling and potentially impact legal immigrants and US citizens, who could be caught up in the dragnet.
A large number of undocumented immigrants who would be targeted in expanded expedited removal would have been eligible for legalization under a number of bipartisan proposals in the past twenty years. As many as two-thirds (66 percent) of the undocumented population have been in the country for ten years or more. They have worked in many important industries, including agriculture, construction, and service, and have US-citizen children. The United States faces a labor shortage in many of these industries, now and into the future. Would it be in the interest of the nation to deport them?
What is needed is a comprehensive reform of the US immigration system and attention to the root causes of flight
The nation’s legal immigration system is antiquated and needs revision. Immigration reform would revamp both the family and labor-based system to allow immigrants to migrate legally and in a timely fashion, thus reducing pressure on the southern border.
Over the long-term, the United States must also deploy a strategy, in cooperation with Mexico and Latin American nations, to address the root causes of flight, including poverty, conflict, and governance issues.
As part of this strategy, the United States must also examine its foreign policy toward countries in the hemisphere, especially economic policies which may adversely impact the livelihoods of migrants and their families. The government and the world community also must take seriously the impact of climate change on flight, and begin to address its effects.
The policies being considered by Congress and the Administration take the nation backward in terms of immigration policy. They basically reflect the anti-immigrant policies of the previous administration, a punitive enforcement-only model which has failed over the past forty years.
The Biden administration and Congress should reject these policies and instead return to a bipartisan process to reform the US immigration system. The nation can create a system which balances immigration and the rule of law, serving the best interest of the country into the future.
January 8, 2024