WOLA: Advocacy for Human Rights in the Americas

(AP Photo/Carlos Jasso)

30 Jun 2020 | Commentary

Unless the United States Deploys These 5 Regional Migration Strategies, COVID-19 Could Portend Another Humanitarian Crisis On Our Border

At first glance, it might seem that the Central American migration crisis—in which hundreds of thousands of families arrived at the U.S.-Mexico border seeking asylum—has abated.

The number of Central American migrants apprehended by U.S. Customs and Border Protection (CBP) has dropped sharply in recent months. Migrant shelters in Mexico have reported falling numbers of new arrivals, although tens of thousands of migrants are still stranded on the Mexican side of the border. Even asylum applications in Mexico have slowed after reaching historic levels earlier this year.

Some U.S. policymakers have taken the apparent decline in migration as proof of a horrifying concept: the exceptional cruelty employed by the Trump administration on the border—separating families, stranding migrants in Mexican border towns, ending the right to asylum during a global pandemic—could “protect” the border.

But such a strategy of harsh enforcement endangers tens of thousands of lives, and it doesn’t work. If recent history is any guide, this strategy will not only be repugnant to our values as a nation, it will not have any lasting success in stopping migration flows.

For decades, the default response to surges in migration has been harsh enforcement, with the expectation of “deterring” people from coming. Without fail, these measures seemed to succeed in the short term, but all were inevitably followed by new crises. For example, aggressive crackdowns—or threatened crackdowns—in 2014 and 2017 led to short-term reductions in migration, only to be followed by steady increases leading to record numbers of asylum-seeking children and families in 2019.

Today, as the Trump administration deploys cruelty as a deliberate deterrent, it’s important to remember what history has taught us: migration flows rebound when root causes persist. Whether or not an inevitable rebound turns into a humanitarian crisis doesn’t depend on its magnitude, it depends on how the U.S. chooses to respond.

The current drop in migration isn’t permanent

As it has before, migration will rebound.

Independent of the Trump administration’s cruelty, the COVID-19 pandemic has been the driving force behind decreasing migration numbers since March. The regional public health measures currently limiting human mobility—stay at home orders, curfews, quarantines, border closures, and more—will lift with the end of the pandemic. When this happens, many would-be migrants and asylum seekers who haven’t been able to travel could again seek a route out.

Simultaneously, human smugglers—who have long sold Central American and Mexican migrants and asylum seekers hopes of reaching the United States—will redouble their recruitment. This is bound to happen regardless of who wins the U.S. presidency in November. Human smugglers have convinced hundreds of thousands of Central American families and children that fleeing is a viable option, despite cruel actions by the Trump administration. Whatever steps a next administration takes, smugglers will continue to prod potential migrants with the argument that they have opportunities in the United States.

More fundamentally, the end of the pandemic itself portends a rebound of migration levels. This is because the conditions driving people to flee Central America and Mexico have worsened as a result of COVID-19. The pandemic has either exacerbated or exposed some of the most powerful drivers of migration: poverty and inequality, corruption, authoritarian tendencies, and insecurity. Examples include:

  • In Central America and Mexico, experts project historic economic contractions and unemployment levels. Remittances from the United States, which are often a critical lifeline to Central American and Mexican families in tough economic times, are expected to fall by 20 percent, according to a World Bank estimate.

  • Leaders like President Nayib Bukele in El Salvador have taken advantage of the pandemic to concentrate power. Authoritarian actions, like ordering security forces to detain and abuse people caught breaking quarantine, are likely to have a disproportionate effect on low-income communities.

  • Millions of Mexicans and Central Americans who have always struggled for access to basic services, face even greater accessibility challenges today, as efforts to roll out social protection programs have been hampered by long-term neglect of healthcare systems and massive corruption.

  • In Mexico, the pandemic has brought about record numbers of homicides in recent months. In Central America, reductions in violence and extortion in some areas belie continued gang control of entire communities.

When the pandemic restrictions lift, people will take stock of their economic situation, their governments’ inability or unwillingness to address criminal groups’ continued control of their communities, political persecution, and a juiced-up state corruption apparatus robbing them of basic services. For some, the dangers and uncertainties of migration are a better option than their harsh reality and possible death at home. They’ll strike out once again in search of protection, many with the aim of reaching the United States.

Because the Trump administration has imposed cruel deterrence policies on the border, rather than smarter administration, long-term strategic investments, and partnerships in the region, migration flows will return again.

The U.S. government can choose to manage migration at its southern border in an orderly, humane way

In the face of a potential rebound in migration at the U.S.-Mexico border in a post-lockdown, post-election world, there will be enormous pressure on U.S. political leaders—regardless of electoral outcome—to deal with it.

A second Trump administration would seize on the situation to expand its cruel policies, worsening the current humanitarian crisis. While Joe Biden’s immigration plan calls for an end to all of Trump’s “detrimental asylum policies,” an incoming Biden administration might be tempted to slow-walk sweeping them away, should the national political discussion be hijacked by extreme fear-mongering and dehumanizing rhetoric about migrants at the border. A Biden administration could also face pressure to maintain other ineffective Trump and Obama-era migration policies, like insisting that Mexican and Central American governments deploy military and police forces to stop people from even reaching the U.S.-Mexico border.

Maintaining or failing to promptly rescind harsh border enforcement policies would be a deadly mistake. The United States is capable of managing large numbers of migrants in a humane and rights-respecting manner. The sooner policymakers recognize that an increased number of asylum-seeking migrants is not a border emergency, but an administrative challenge, the sooner we can begin implementing common-sense, practical policy innovations that can ensure efficiency in our asylum and migration system, while reducing future migration flows by addressing the underlying problems driving people to migrate, and preventing the next humanitarian crisis at the U.S.-Mexico border.

Deterrence doesn’t work. What works is managing migration flows

There are more humane ways to address the arrival of migrants and asylum seekers at our border. We can efficiently and promptly process asylum claims, replace costly and deadly detention practices with humane alternatives, expand the capacity and ensure the independence of our immigration courts, cooperate with Mexico and other governments to address regional migration flows, and invest in the region’s service providers and reformers to address the root causes of migration.

  1. Rather than make asylum-seekers wait in dangerous Mexican border towns, build non-law enforcement capacity and improve efficiency at ports of entry.

    One justification that the U.S. government uses for policies like ‘Remain in Mexico’ and ‘metering’ is that ports of entry lack the infrastructure and capacity—either in holding space or personnel—to deal with large numbers of asylum seekers.

    But using capacity as a pretext for these policies belies a deeper problem at the border: a lack of modernization and efficiency at our ports of entry. Our ports need to be modernized, which means filling staffing shortfalls, estimated at roughly 4,000 CBP officers, and funding infrastructure needs, which are an estimated $5 billion. Our ports were designed for a past reality in which asylum seekers arrived in far smaller numbers; they now need dramatically expanded processing capacity to make them congruent with the new reality.

    Someone who fears death in their own country should be able to approach a U.S. port of entry and have his or her asylum claim processed in an orderly way, within 72 hours. There should be no need for long waits in Mexican border towns. There should be no incentive to cross between ports of entry. There should be few moments in which they need to interact at all with armed, uniformed CBP officers or Border Patrol agents, as asylum seekers pose no criminal or security threat.

    Properly funding and staffing ports of entry is the first step in ensuring a manageable system for processing asylum seekers. During large-scale influxes of asylum seekers from troubled regions, port of entry capacity may need to be augmented by larger processing facilities staffed by professional personnel trained in mental health, social work, and work with trauma victims. There is no reason to task law enforcement personnel with asylum processing or caring for child and family arrivals, tasks for which they receive little training.

  1. Rather than detain families and individuals in search of international protection, invest in cost-effective, more compassionate alternatives to detention.

    Currently, a family or an individual seeking asylum could face a lengthy stay in a U.S. detention facility. There is rarely a compelling reason for that: asylum administration can take place efficiently when applicants are released into the U.S. interior to await hearings. Detaining those seeking international protection is costly and harmful. There’s no evidence that detention helps ensure that asylum seekers show up for their court hearings. In 2019, 99 percent of non-detained asylum seekers attended their court hearings.

    Studies have shown that alternatives to detention work well. Research by the United Nations found that most alternative-to-detention programs achieve 90 percent or higher compliance rates. Under a U.S. alternative-to-detention program, involving migrants in ICE custody, 97 percent of participants showed up for their immigration court hearings, with support services costing an average of $24 a day per individual. Another U.S. program, administered in the late 1990s, saw 91 percent of participants attend their court hearings.

    These alternatives, which emphasize frequent contact with caseworkers, diligent case management, and ensuring access to legal counsel, are extremely effective at containing flight risk, and they come at a fraction of the cost of detention ($124 per day for adults and $296 per day for families, according to ICE’s latest budget request.)

  1. Rather than continue to overwhelm a taxed immigration court system, make reasonable investments that ensure the independence and capacity of immigration courts.

    Even with alternatives to detention programs, immigration hardliners object to releasing asylum seekers into the U.S. interior because it may take years to get final decisions in their cases. That’s not asylum seekers’ fault, however: it owes to another administrative shortfall that the U.S. government should find to be perfectly surmountable. The immigration court system faces a massive and growing backlog—there are more than 1 million pending cases in the system, and only about 460 judgesavailable to hear them. As a result, right now asylum seekers arriving at the border could be served a notice to appear in front of a judge at a date three years in the future.

    Reducing asylum seekers’ wait time in the U.S. interior, then, requires increasing courts’ capacity: more judges and more courtrooms, reducing the number of cases per judge. This expansion is hardly an administrative “moon shot.” Its cost would be a fraction of Donald Trump’s proposed border wall construction, and it would be a common-sense adjustment to the greater demand for asylum at a time of increased human mobility worldwide.

    Beyond delays, the immigration courts system has other serious due process concerns. Apart from access to legal counsel, whether an asylum seeker’s claim gets accepted or not is highly dependent on which court hears their case. The asylum success rate for the San Francisco immigration court between FY 2014 and FY 2019 is 70.5 percent. In El Paso, the rate for the same time period is 5.9 percent. It’s clear that immigration judges hold enormous influence over asylum-seekers’ future. Immigration courts’ placement within the executive branch—the Department of Justice, subject to the political preferences of the administration in power—is another glaring failure point that needs to change.

    This arbitrary and overcrowded system is untenable. It undermines the due process of people applying for asylum in the United States. To address the backlog and long wait times, the United States must prioritize the hiring and training of more immigration judges and staff, while not pressing judges to reach quick decisions on sensitive and complicated asylum cases. In order to ensure due process and transparency for asylum-seekers, we must make immigration courts an independent agency not beholden to political appointments and expand access to legal counsel for asylum seekers.

  1. Rather than push regional governments to support draconian migration measures, support courageous anti-corruption efforts and advocates fighting to improve rule of law. 

    President Trump has cut off hundreds of millions of dollars in critical aid to countries like El Salvador, Guatemala, and Honduras, unless they agree to enforce draconian migration policies like ‘safe’ third country agreements. It has also bullied Mexico into enacting migration crackdowns.

    The United States should restore aid to Central America to fund programs that directly address the drivers of migration, including corruption, poverty, and violence. Specifically, the U.S. government should: prioritize support for efforts to tackle corruption, target assistance to expand evidence-based, community-level programs to reduce youth crime and violence, reintegrate youth seeking to leave the influence of street gangs and criminal groups, and protect women, young people, and children who have suffered violence; support evidence-based employment creation and job training programs that focus on at-risk youth in targeted communities; and focus security-related funding on professionalizing and making civilian law enforcement and justice institutions more accountable and transparent. In Mexico, the U.S. should cooperate with Mexico to build strong, effective, rights-respecting police and justice institutions that can address endemic insecurity, violence, and corruption in Mexico, and prioritize efforts to strengthen the rule of law and human rights protections.

    Our approach to Mexico and Central America shouldn’t be predicated on pressuring regional partners to implement cruel policies. Rather it should support civil society and government leaders who are fighting against human rights abuses and corruption that have pushed so many to migrate.

  1. Rather than force Mexico to deploy its militarized National Guard to confront migrants, help strengthen Mexico’s overwhelmed asylum system.

    President Trump demanded that Mexico “stop” the flow of migrants attempting to reach the United States, or else face tariffs. Mexican authorities reacted by cracking down on migration flows. This crackdown included the deployment of Mexico’s new National Guard in a migration enforcement capacity. Simultaneously, the Trump administration also pressured the Mexican government into expanding ‘Remain in Mexico,’ which keeps asylum seekers stranded in Mexican border towns for months or even years while they wait for their immigraiton hearings in the United States.

    Pushing the Mexican government to enact these policies ignores the very real challenges that Mexico faces as a growing destination country. The region-wide wave of human mobility is not just a U.S. phenomenon: in 2019, Mexico’s asylum agency (COMAR) received 70,302 asylum requests, an eye-popping figure compared to the 3,424 requests received in 2015. As asylum requests have skyrocketed, the budget for Mexico’s asylum system in 2020 is merely $2.35 million. Even with important UNHCR support, the surge in requests and lack of government funding have led to staff shortages and long wait times.

    Programs like “Remain in Mexico” and the Trump administration’s bullying of Mexico into aggressively patrolling both of its borders have exposed migrants to additional risks at the hands of government officials and criminal organizations. While the Mexican government must step up its efforts to investigate and prosecute those responsible for crimes and human rights violations against this vulnerable population, ending U.S. pressure on Mexico will also reduce some of the risks faced by asylum seekers and migrants at the border and on their journey.

    As Mexico increasingly becomes a destination country, expanding the country’s asylum system is critical to ensure that asylum seekers’ claims are fairly and promptly processed and that those who choose to stay are able to settle into their new lives in Mexico.

Preparing for future migration flows

The measures proposed here are neither dramatic nor prohibitively expensive. They aren’t designed to fit conveniently on a bumper sticker. They’re not meant to be. Whoever is governing the United States when the COVID-19 crisis abates must be sure of two things. First, a rebound in migration at the border is likely given what we’ve learned from recent history. Second, when it happens, the United States can handle the challenge with minimal drama. The answer lies in ports of entry, processing capacity, alternatives to detention, immigration courts, root causes, and cooperation with Mexico.

Though we can’t predict the exact timing or scale of future migration flows, rising poverty, continued violence, and rampant corruption throughout Central America and beyond portend yet another movement of people. The U.S. government can meet that future challenge with humane, effective policies that emphasize managing what’s happening and attacking the long-term causes—not escalating an ever-harsher series of futile attempts at deterrence.

If the United States instead responds in the high-drama, lashing-out manner characteristic of the Trump administration, exercising maximum cruelty on its southern border, a new humanitarian crisis assuredly awaits us. Should U.S. lawmakers instead emphasize processing, alternatives to detention, an unbiased and capable immigration courts system, regional cooperation and engagement to expand protection for asylum seekers, and robust efforts to support civil society champions and committed government officials in Central America, then we’ll be able to address migration at the border in a way that actually upholds human dignity while being more effective, too.

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