In the run-up to last week’s Congressional elections, US President Donald Trump ordered more than 5,000 troops to the Mexican border — bringing the deployment there to more than triple the size of America’s military presence in Syria.
The threat: a “caravan” of thousands of Central American migrants, travelling together through Mexico intending to claim asylum in the United States. It played an outsize role in race-baiting ads and regular Trump tweets during the election campaign.
As the first migrants from the caravan arrive at the US border, experts agree that the country’s asylum system is in crisis. But troops at the border don’t have the legal authority to do anything more than provide logistical support.
An October report from the Migration Policy Institute suggests that it’ll take less eye-catching reforms to make America’s borders functional again. Here’s what policymakers could do.
The first large caravan of migrants was organised by an immigrant rights organisation, Pueblo Sin Fronteras, in the spring of 2017. It was followed by another group a year later, and then a series of caravans without a coordinating organisation starting in October this year.
Caravans are a marker of two significant changes in the nature of irregular immigration to the United States over recent years. The first is a shift from young Mexican men moving for straightforward economic reasons to Central Americans fleeing deep poverty and rising gang violence.
The second, related change is the caravan itself: small groups of migrants trying to move through Mexico and into the US undetected have given way to large, organised groupings hoping that large numbers and media attention will make their journey safer.
More than 200,000 asylum claims are pending in the immigration courts
Taken together, these two developments have contributed to an enormous spike in asylum claims at the US border: Central Americans fleeing violence are more likely to have a claim to asylum, and migrants in caravans are more likely to present for asylum at an official border crossing than sneak across elsewhere.
According to the Migration Policy Institute (MPI) report, the number of “credible fear” claims — the first step in an application for asylum — increased more than eightfold from 2010 to 2017, even as the total number of border crossers fell. The share of all crossers making protection claims has risen from about 1% to more than a third, the MPI says.
That’s left more than 200,000 cases involving asylum claims pending in the immigration court system.
As a result, the statutory target to resolve cases within six months is very rarely met. And that creates incentives for abuse, because once a claim has been pending for longer than six months the immigrant can obtain a permit to work freely throughout the country.
So even as the Trump administration tries to deter migrants with cruel policies like family separation and restrictive ones like narrowing the acceptable grounds for asylum claims, the huge backlog means the system remains dysfunctional.
And caravans continue to form: the large group which drew so much attention during the election campaign has already prompted more migrants to start following its tracks north.
Fixing the system
What’s needed, according to the MPI report, is a mix of emergency measures and systemic changes that can ensure cases are dealt with more quickly.
“With timely, fair processing of asylum claims, deterrence becomes inherent,” wrote Doris Meissner, an MPI senior fellow who formerly ran the agency responsible for the US asylum process. “[L]ong waits in multiyear backlogs are eliminated, erasing perverse incentives to misuse the system.”
The first step is to adopt a “last-in, first-out” rule: processing new cases before older existing ones. This procedure was successfully adopted in the 1990s to stop the case backlog growing any further, and has been adopted this year by some parts of the federal immigration bureaucracy.
It means that new cases won’t experience long delays and are more likely to be resolved within the six-month target window. But, the report warns, “last-in first-out” is suitable only as an urgent step to reduce the backlog, not a new standard, as it “further disadvantages cases that have already been waiting for long periods”.
Instead, deeper changes to the processing of claims are needed for long-term sustainability. At present, migrants who ask for asylum at the border have their initial “credible fear” interview with an officer with an asylum officer.
If they pass that interview, asylum seekers are referred for a full hearing on their claim before an immigration judge. But the backlog means that hearing might not occur for years — at which point the investigation has to start afresh.
“These procedures are needlessly duplicative, build in delays that weaken sound cases, and invite misuse of the asylum system, such as filing nonmeritorious claims to obtain work authorisation or delay removal,” the report says. “This negative spiral further deepens backlogs and delays.”
A change in procedure could allow officials from the asylum division to proceed to assess migrants’ claims in full if they pass the screening interview. Those officers are already responsible for asylum applications from people inside the United States, so they receive significantly more training on asylum law and access to geopolitical expertise than immigration judges.
It might also improve decision-making because the process doesn’t use an adversarial, court-like approach, and so can give “a fuller understanding of the strengths and weaknesses of an applicant’s case”, in a context where few claimants have lawyers to represent them.
Other changes suggested in the report include skipping the preliminary interview altogether for immigrants in high-risk categories and making it easier to file claims for cancellation of removal, a different type of protection which migrants can currently only apply for by making an unsuccessful asylum claim first.
Beyond changes to the asylum process, dealing with the surge in immigration from Central America will require working with other countries in the region, particularly Mexico.
One crucial measure, discussed in the MPI’s report, is the establishment of a “safe third-country agreement” between Mexico and the US. This arrangement — already in place between the US and Canada — would mean both countries recognising each other as safe, and requiring would-be asylum seekers to file their claims in the first country they arrived in.
This would allow border officials to refuse asylum seekers from Central America who had passed through Mexico, making it much harder to gain entry to the US. It could operate similarly to the European Union’s Dublin regulation — and, like those rules, could drastically increase the burden on the asylum system in the frontline state, in this case Mexico.
Such a deal would build on steps Mexico has already taken, at the urging of the US, to encourage migrants in the caravan to end their journey and apply for asylum in Mexico. President Enrique Peña Nieto last month unveiled a program offering housing and healthcare to immigrants who stopped in southern Mexico.
And ultimately, Meissner has written, the US will only be able to reduce the flow of migrants by helping create more stable conditions in Central America. Through aid, she wrote, “the United States should promote durable citizen-security, anti-corruption, and economic development measures, as well as migration-management regimes that include robust reception and reintegration efforts.”
That is a difficult task: much evidence suggests that improving economic conditions can, in the short-term, increase migration rather than reduce it.
It’s indicative of the difficulties tackling an issue where passions can run hot, but whose complexities demand a cooperative, detail-focused approach which is unlikely to deliver immediate political relief. — Fergus Peace
(Picture credit: Wikimedia Commons)