The Trump administration’s new asylum rule will limit the ability of Central Americans to claim asylum at the southwest border. If implemented, it might ease overcrowding at border detention facilities in the near term. But the rule, announced Monday, is at best a stopgap measure, not a permanent solution.
The border crisis will never end until we overhaul our outdated and ineffective asylum system from top to bottom. Just as no amount of border security, immigration enforcement, or outsourcing to Mexico will dissuade Central Americans from traveling north, neither will mere administrative changes to asylum regulations remove the incentives created by an immigration case backlog of nearly 1 million and wait times that extend for years.
The new rule simply states that migrants who pass through another country en route to the United States must apply for asylum there rather than at the U.S. border. Because the vast majority of asylum-seekers come from Central America, that means most of them would be required to seek asylum in Mexico or Guatemala before applying for asylum in the United States.
The rule is an attempt to address a very real problem: the proliferation of specious asylum claims from Central Americans who are, strictly speaking, economic migrants. They aren’t fleeing persecution, but poverty. And they’re trying to get to America, not Mexico or any other country, because their economic prospects are better here. Poverty and lack of economic opportunity don’t traditionally qualify one for asylum. Nevertheless, those who cross the border illegally can initiate the process of claiming asylum simply by passing a “credible fear” interview with a U.S. Customs and Immigration Service asylum officer, even if they have almost no chance of getting asylum.
And there’s the catch. Because of the case backlog in U.S. immigration courts, migrants can more or less guarantee they will be allowed to remain in the United States for years, with authorization to work, just by successfully initiating the asylum process, which isn’t that hard to do.
Indeed, the standard for establishing credible fear is intentionally much lower than the standard for a grant of asylum, which is why there’s such a gulf between the number of cases where credible fear is established and asylum is eventually granted. In the first six months of this fiscal year, for example, credible fear was established in 88% of all cases. By contrast, last year asylum was denied to migrants from Honduras, Guatemala, and El Salvador at rates of 78, 81, and 76%, respectively.
Given these figures, there’s clearly a strong incentive for Central American migrants to say they have a credible fear of returning to their home country, whether or not they ultimately have a valid asylum claim. The current system was designed to handle a relatively small number of credible fear interviews. From 2000 to 2013, less than 1% of migrants apprehended by Border Patrol initiated asylum proceedings. In 2007, there were fewer than 5,200 claims of credible fear. Last year, there were more than 92,950.
Clearing backlog and removing the incentives to file specious asylum claims should be the top priority right now. How do we do that? First, the credible fear interview process itself needs to be stricter and more streamlined. Instead of transferring cases with a positive credible fear finding to the immigration courts, where they must start all over again after a yearslong wait, those cases should remain with the Asylum Division of USCIS for adjudication.
Second, Congress should pass legislation that allows immigration officials to detain families for long enough to resolve their asylum claims. Currently, families that claim asylum can’t be detained for longer than 20 days. That has created a huge incentive for adults to cross the border with children — and indeed for smuggling networks to send unrelated adults and children across the border as “fake families” in an attempt to game the system.
Third, the Trafficking Victims Protection Reauthorization Act, a well-intentioned 2008 law meant to protect minors from exploitation and abuse, needs to be amended. The law treats minors from Mexico and Canada differently than minors from non-contiguous countries, allowing them to be quickly returned to their home country if they are not at risk of being trafficked or persecuted. Instead of involving the immigration courts, the entire process is handled administratively. The same process could be applied to minors from Central America.
Some of these changes will require action by Congress and some could be done with policy changes at the agency level. More funding for asylum officers, immigration judges, and detention facilities will also be necessary.
What’s certain is that the only long-term solution to the crisis is to clear the backlog of immigration cases and forge a more streamlined asylum system that can handle the exigencies of the current crisis. That will take the one thing Washington, D.C., seems to lack most of all: political will.