One of the constants about immigration as a topic is how emotional people of all stripes get talking about it despite little to no understanding of immigration law. This is not necessarily their fault. The salience of the immigration phenomenon and the complexity of the rules, coupled with misinformation stemming from politicians, media organizations and even immigrants themselves (who often think that because x aspect of immigration law applies to them, it applies to everyone else and vice-versa) makes it nearly a certainty. The truth is that immigration policy would be hard to get right even if everyone was fully versed in the relevant law and regulations, simply because the logistics of dealing with large groups of people is always difficult. Trying to develop it based on faulty understanding, however, is much worse and always leads to unnecessary costs, abuses or worse as was so evidently clear last weekend when the US government used tear gas against asylum seekers, including women and children. So, let me attempt to clarify some of the issues here.
First, these people have an absolute right to ask for asylum. It is not only legal, but it is the only legal way for these people to come to the United States (the other legal ways would be family reunification, business sponsorship or through a diversity lottery—all of which these people are ineligible for). The relevant law is section 8 of the 1990 Immigration Nationality Act which says: “Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum in accordance with this section or, where applicable, section 1225(b) of this title.”
Notice three key aspects of the law. First, they must be physically present. Second, it need not be at a designated port of arrival and finally, it is irrespective of their immigration status. In other words, not only does the law say that one cannot apply at an American embassy somewhere, but if one enters the country without a visa and deliberately avoids a port of entry, one still has the right to apply for asylum. The fact that the law is explicit about this is the very reason why the Trump administration was immediately sued when it tried to deny people the right to apply for asylum to those who did not go through the designated ports of entry. Not surprisingly, it lost.
Having the right to ask for asylum, however, is not synonymous with having the right to be granted asylum, not even close. In fact, on average, the United States had granted asylum to about 30% of those who apply for it—but currently it is even lower. Those who do not receive it are then deported, as thousands are every day.
Second, there are indeed growing number of people asking for asylum—in large part because gang violence and political crackdowns in Honduras and Nicaragua have increased—but the acceptance rate has hardly budged. What has actually changed is their visibility, which in turn, has come about as a result of the “caravan” phenomenon—the fact that people have been traveling in large groups. This makes people nervous, particularly the President, who attributes malevolent intentions to their coming together to travel north. There is nothing particularly nefarious about that fact, however. It is simply an effort to establish safety in numbers. There are lots of dangers for migrants in Mexico, not just theft, assault or rape, but much worse. In the past, drug cartels have abducted people and demanded ransom from their families; have sent men, women and children into sexual trafficking; forced them to work for the cartels and even massacred them as was the case in 2010 in Tamaulipas. Caravans ameliorate this danger to some extent, but they cannot obviate it altogether. Mexican media reported a number of abductions including children that were traveling with the caravan in the last few weeks. It is unclear what happened to them.
Third, the reasons why people are fleeing their homeland in the first place have a lot to do with American decisions. From the toppling of democratic regimes and funding of guerrillas during the Cold War to the deportation of gangs in the 1990s, not to mention the massive failure of the War on Drugs. Indeed, even if the United States had little to do with it, as long as the reality of those countries remains as violent as it is now, asylum seekers will keep coming regardless of what the US decides to do.
Fourth, what happened in Tijuana was just the latest in a long-simmering problem that has been much exacerbated by the Trump administration. Already during Obama’s presidency there was a backlog of claims that was being created in large part because the entire section of the executive branch that processes claims including asylum officers and judges is badly understaffed. Then in early 2018 the Trump administration changed the scheduling process which made waits much longer and certainly lengthier than the 180 days USCIS claims as their goal. The government also began refusing to look at asylum claims at ports of entry at all and essentially created a metering process where they will only process several dozen cases a day. In Tijuana, for example, as of yesterday, there were 1500 people that had been put on a list to get their cases heard. To get in that list, however, people have to wait in line for hours often failing to do even that as those in charge are allowing only a select few to even get on that list. In other words, the Trump administration is trying to make the process as onerous as possible to create a deterrent. Given how backlogged that process is, we are talking about months of waiting in Mexico just to have their case logged into the system. Without money and some of them with young children, their situation is getting increasingly more desperate. No wonder some of them tried to storm the border as managing to get to the other side (they thought) would mean finally putting their cases on the list.
The one thing the President (and Congress) could do is hire more judges and staff to adjudicate asylum cases. This would not only prevent scenes like what happened in Tijuana, it would also be following the law. Instead, the President is doing the exact opposite. Whether intentionally or not this is likely to create an expanding humanitarian crisis that might result in further moments of violence or closings of the border. Indeed, according to the San Ysidro Chamber of Commerce closing the busiest port of entry for a few hours cost us $5.3 million dollars. That is peanuts though compared to what it would cost if Trump actually went through with his border closure threats.
Given the situation, the only possible answer from the perspective of the current administration is to enlist Mexico as a partner. There appears to be a deal where Mexico will allow people to wait on its territory while asylum cases are adjudicated. The details of how exactly this will work are still unclear, but it appears that the Trump administration will pay millions to our southern neighbor to house and feed asylum seekers. As currently proposed, this would not prevent people from applying for asylum, just from waiting inside the United States while their case went through the system. That means the US would be paying Mexico for a temporary wall, if you will.
Ironic? Perhaps, but such are the times we live in.
