WOLA: Advocacy for Human Rights in the Americas

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9 Dec 2020 | Commentary

How Biden Can Overcome Obstacles to Reversing Trump’s Disastrous Migration Policies


This is the second article of a two-part series about how the Biden White House can reverse the Trump administration’s cruel and ineffective migration policies and the need for expanded regional cooperation. Read part one about Mexico here.

During the presidential campaign, a key Joe Biden pledge was to undo Donald Trump’s hardline border and migration measures, including a restoration of the right to seek protection in the United States. Specifically, the Biden campaign indicated that it would do the following:

  • End the “Remain in Mexico” program (also known as the “Migration Protection Protocols,” or MPP), which has seen over 60,000 asylum seekers sent back from the United States to wait for their court dates in Mexican border cities, some of which rank among the world’s most violent. 
  • Withdraw from the “safe third country” agreements signed with the governments of Guatemala, El Salvador, and Honduras, under which asylum seekers are deported back to these countries, on the theory that they should apply for asylum there, even though these countries have little capacity to properly screen and protect them. (None of these agreements have been in effect since March 2020, amidst the COVID-19 pandemic). 
  • End “metering,” a practice in which Customs and Border Protection (CBP) limits the number of undocumented people who can present themselves at the 48 official land crossings—aka, the ports of entry—and petition for protection. Thanks to metering, huge backlogs of asylum seekers have accumulated in Mexican border cities, incentivizing people to cross the U.S.-Mexico border in between ports of entry. Metering has also led to the creation of long, informal waitlists—at the moment, there are 15,690 asylum seekers on waitlists in nine Mexican border cities, according to one recent count.
  • Review the Centers for Disease Control and Prevention (CDC) “expulsions” order which, in its current form, violates the principle of non-refoulement (the international laws and norms that forbid countries from returning asylum seekers back to situations of danger). Since implementing the March 2020 order—issued over objections from senior CDC officials—U.S. agents have carried out over 270,000 expulsions, including at least 13,000 children who crossed the border alone.   
  • Reinstate the Deferred Action for Childhood Arrivals (DACA) program, which protects 650,000 undocumented people who were brought to the United States as children, and expand it to include more than 400,000 more eligible people who have been unable to apply.
  • Stop all border wall construction (although it’s unclear whether that means cancelling all active construction contracts, or what will happen to sections of the wall already built). 
  • Reinstate the Obama administration’s Central American Minors program, which allows parents from El Salvador, Honduras, or Guatemala to apply for U.S. refugee status for their children. 
  • Create a task force to help locate the parents of at least 628 children separated under Trump administration policies. 
  • Freeze deportations for 100 days while reviewing criteria for ICE arrests. 
  • The new administration will also likely preserve the Temporary Protected Status (TPS) humanitarian program past its current expiration in October 2021. The program currently covers some 300,000 people from countries that include Honduras, El Salvador, and Nicaragua, but the Biden administration may extend it to Venezuelans currently in the United States. The Guatemalan government has recently requested TPS for its citizens given the devastation wrought by the two hurricanes. 

WOLA strongly backs all of these measures and hopes to see them implemented. The problem is that the Biden administration faces significant obstacles in keeping some of these promises. 

The obstacles to reversing Trump’s deterrence-first approach

The first is that the Trump administration has left Biden’s incoming administration with almost no infrastructure at the border to receive asylum seekers in an orderly way.

Ports of entry are understaffed and unequipped for a new reality in which asylum seekers arrive at the border in large numbers. In Texas’s Rio Grande Valley, CBP built a processing facility to ease the burden on ports of entry in 2015. This facility—where border authorities infamously used cheap chain-link “cages” to separate groups—will be closed for renovation until 2022, meaning there will be even less infrastructure than before to receive and process migrants and asylum seekers. 

COVID-19 adds to this challenge. The pandemic is severely testing asylum and refugee protections worldwide; in many countries, the systems for taking in asylum seekers are still only partially operational

At the moment, asylum seekers at the U.S.-Mexico border have virtually no options: ports of entry are turning nearly every undocumented person away regardless of protection needs, and under the March 2020 CDC order, nearly anyone who crosses the southern border to petition for asylum is promptly repatriated or forced back to Mexico (although in late November, a federal judge ordered the Trump administration to stop expelling children who’ve crossed the border unaccompanied in search of protection).

The Biden administration doesn’t want its first 100 days’ agenda overtaken by images of thousands of migrants crossing the border and packed into Border Patrol stations.

An expected wave of migration throughout South and Central America may complicate things further. Trump’s exit may be an element in migrant smugglers’ sales pitches. The economic depression as a result of COVID-19 lockdowns—followed by two record-breaking hurricanes in two weeks—portend a greater number of people fleeing Central America. Persistent violence in Central America will also continue to force people to flee their homes. Grappling with their own economic recession and record-level violence, for the first time in five years Mexican migrants topped the list of migrants apprehended at the border for this past fiscal year. 

We may already be seeing the beginning of this surge in migration, given recent Customs and Border Protection (CBP) data. October 2020 saw the largest number of people apprehended at the border since July 2019—the greatest number of apprehensions for the month of October since 2005.

Apprehension data from Mexico suggests the same: the number of migrants detained in October represented a 37 percent increase from September; it was the highest number of people detained since January. 

The Biden administration doesn’t want its first 100 days’ agenda overtaken by images of thousands of migrants crossing the border and packed into Border Patrol stations. The incoming government may decide to keep in place the CDC’s Title 42 restrictions in order to limit how many migrants are taken into U.S. custody. 

But it doesn’t have to be this way. The fact that violence, poverty, and natural disasters are forcing so many people to flee their homes is tragic—but for the United States and its government, it should be less of a crisis than an administrative challenge.

We can deal with this administrative challenge with a series of long-overdue policies spanning three timeframes.

The short term

Improve processing capacity at the U.S.-Mexico border

People seeking protection—anybody who, though undocumented, is seeking to turn themselves in to U.S. personnel—should be able to petition for asylum at ports of entry. There should be no reason for this population to feel as though their only shot at a fair asylum process is to cross “without inspection” between the ports. 

To improve processing capacity at the U.S.-Mexico border, the Biden administration should:

  • Establish temporary facilities near ports of entry along the U.S.-Mexico border

U.S. officials need to be able to promptly input the asylum seeker’s personal and biometric information, screen them for health issues, begin the basic asylum paperwork, and ensure that they can have a prompt “credible fear” interview with a USCIS asylum officer. If they pass that interview, asylum seekers should be given a notice to appear in immigration court and released on parole. If there is a need for more supervision, asylum seekers should be placed in an alternative-to-detention program as they await their hearing.  

Right now, the ports of entry themselves, which are often quite small, lack the capacity to receive large numbers of asylum seekers. For this processing to take place more efficiently, the United States would need temporary facilities near select ports of entry. 

These are places where protection-seeking migrants, under normal circumstances, would not remain for more than 72 hours. In parts of the border that historically have seen significant arrivals of asylum seekers (such as the Rio Grande Valley, El Paso, Nogales, and San Diego), these facilities shouldn’t even be temporary—the U.S. government should build permanent processing centers here, like the one that already exists (under renovation) in McAllen and the one coming online in El Paso.

Especially in the short term, facilities will probably start out as tents or “soft-sided” facilities if there is a wave of migrants. But they need not be the dehumanizing, chain-link-fence “cages” like those built during the Obama years. 

An August 2014 visit by WOLA Director for Defense Oversight Adam Isacson (white shirt) to McAllen, Texas, and Reynosa, Mexico with Rep. Jim McGovern (D-Massachusetts, yellow shirt). Border Patrol’s Central Processing Center kept unaccompanied migrant children behind chain-link-fence “cages.” The processing center is currently closed for renovation until 2022. (Photo c/o McGovern office).

  • Ensure the temporary processing facilities are staffed appropriately. 

These temporary facilities need not be staffed by many armed, uniformed CBP officers and Border Patrol agents. Civilian social workers, especially people with experience with trauma victims and child welfare professionals, can do intakes, background checks, and other paperwork, as well as providing food and other humanitarian assistance, while ensuring that medical emergencies are attended. This will free up CBP and Border Patrol personnel for the border-security duties they were trained for; agents should not be spending significant time caring for, and doing paperwork for, asylum seekers in custody.

The processing of asylum seekers and migrants at the U.S.-Mexico border must adjust to the realities of COVID-19. That means investing in alternatives to detention

Detention should be treated as a last resort, not the default option. The current model of locking up tens of thousands of asylum seekers in detention centers isn’t just expensive and inhumane—during a historic pandemic, it’s a major public health risk. Public health experts have outlined ways to uphold asylum rights while also protecting public health. Central to this strategy is investing in alternatives to detention. 

Rather than being kept for months in overcrowded detention centers in squalid conditions that facilitate the spread of disease, asylum seekers can be released into the U.S. interior to await their hearings in immigration court. During this period, they must meet or check in regularly with case officers, who not only monitor their whereabouts but connect them with services. At key moments, case management might be augmented with GPS monitoring devices, though it makes no sense to require their use for long periods if contact with caseworkers is regular.

There is no justification for locking up children and families...

In nearly all cases, there’s no solid evidence that asylum seekers had any intention of skipping their immigration court hearings. Other programs have been shown to work at a fraction of the cost—as WOLA has previously written:

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.

By comparison, ICE’s budget presentations to Congress show that it costs $125 per day to detain an adult, and about $300 per day to detain a family.

Many asylum seekers may already have relatives or other support networks in the United States—they should be released to stay with these contacts while awaiting their immigration hearings, instead of being kept in custody.

This is especially important to protect the well-being of children—particularly so after the rampant mistreatment and horrific conditions that children locked in detention endured during the Trump years. There is no justification for locking up children and families (even an advisory body to the Department of Homeland Security recommended ending this practice, in 2016). 

Some will deride alternative-to-detention programs as “catch and release” (a term that is inherently misleading for implying that asylum seekers are being released without any screening or monitoring process, which has never been the case). But if alternative-to-detention programs are empowered to keep people in the system, if asylum cases are adjudicated as quickly as due process allows, and if those who lose their cases after receiving a fair hearing with adequate criteria are repatriated, the population of asylum seekers without legitimate claims will decline. 

The medium term

Improve immigration court capacity in the United States

Wait times for immigration hearings and decisions are ridiculously long. As of October 2020, there are over 1.2 million pending immigration cases in the United States and only about 520 judges. On average, that’s a wait time of just over two years. 

To address this backlog and long wait times, the United States needs to invest in judicial capacityhiring and training more immigration judges and staff, while not pressing the courts to rule hastily in sensitive and complex asylum cases. 

The United States also needs to strengthen the independence of its immigration courts, as recommended by dozens of legal expert groups and civil society organizations, including the American Bar Association and the national associations for immigration judges and lawyers. Currently, the way immigration courts operate—for example, requiring judges to meet quotas in “rushed, assembly-line justice,” or setting the criteria for who qualifies for asylum—is entirely up to the Department of Justice (DOJ) and the attorney general. This makes the immigration court system, as part of the executive branch, “particularly vulnerable to political pressure and interference.” As noted by the American Immigration Lawyers Association, establishing an immigration court system that is independent of the DOJ can help ensure that all migrants and asylum seekers receive due process and a fair hearing. 

The mass training and hiring of immigration judges and staff will take time. It will be an administrative bottleneck, but getting past it is essential for addressing the badly broken asylum system in the United States

Work with the Mexican government to implement a more humane approach to migration  

The Mexican government has a central role to play in addressing regional migration flows. The Biden administration can help reverse the cruelties seen under the Trump administration, and help support a more effective, rights-respecting approach to migration with actions that include: 

  • Coordinating actions regarding the drawdown of programs like “Remain in Mexico.” 

One scenario to consider is that beyond the asylum seekers waiting in Mexican border towns, others under this program remain in different parts of Mexico (apart from those whose claims have been rejected or who have abandoned their cases and returned to their home countries, plus the over 900 asylum seekers that were sent to Guatemala under the Asylum Cooperative Agreement). This population may see Biden’s election as an opportunity to travel back to the U.S.-Mexico border and appeal their case. 

This means there will be a need for the United States and Mexico to work together and develop a way for this population to access transit visas in order to facilitate their travels through Mexico, and to coordinate on messaging about the timetable for the drawdown of this program and who is being accepted for admission at the border. 

  • Support investments in Mexico’s asylum system through U.S. foreign assistance and technical support. 

Both countries should develop procedures for ensuring that asylum seekers who are not safe in Mexico, or unaccompanied children with U.S.-based family members, are transferred to the U.S. to seek protection there.  

  • Emphasize the importance of Mexico’s justice system investigating and punishing crimes against migrants and collaborate in investigations involving transnational crimes against migrants.
  • Support the Mexican government’s efforts to increase internal control mechanisms over their immigration agents and security forces that interact with migrants. 

(Read more about recommendations for the Biden administration and the Mexican government on migration here). 

Expand seasonal and/or temporary work visas for Central Americans

Central Americans who are fleeing poverty or climate change disasters will not qualify for asylum. However, there may be an opportunity for the United States to expand temporary or seasonal work visas for Central Americans to create legal opportunities for migration for this population. Any expansion of the existing programs must be reformed to address their current flaws and practices that have led to abuse and exploitation. 

At a minimum, the Biden administration should take steps to protect the Central American and other migrant populations that already have deep roots in the United States and/or U.S. citizen children. Apart from renewing DACA, this should include renewing the TPS humanitarian program for countries that include Honduras, El Salvador, and Haiti, considering TPS for Guatemalans in the aftermath of the hurricanes, and making good on Biden’s campaign promise to extend TPS to Venezuelans.

The long term

Work with Central America’s reformers to make the region a place where people aren’t forced to flee

President Trump has cut off hundreds of millions of dollars in critical aid to countries like El Salvador, Guatemala, and Honduras. This cut-off in U.S. assistance limits the reach and effectiveness of essential programs that address the root causes of migration.

The Biden campaign has said it would develop “a comprehensive four-year, $4 billion regional strategy to address factors driving migration from Central America.” The development of a sustainable strategy to address the main drivers of migration from the region—violence, corruption and impunity, lack of economic opportunities, climate change—is central to long-term efforts in addressing migration. 

In developing this strategy, the Biden administration should include the following actions:

  • Promote consistent, clear commitment to supporting anti-corruption reformers. 

Improving governance and tackling endemic corruption must be at the heart of U.S. policy toward Central America, especially given that under the Trump administration, the region saw widespread efforts to undermine rule of law and reverse recent gains in tackling corruption and impunity.

The U.S. government should embrace its potential to more aggressively support efforts to combat impunity and corruption in Central America. This means leading by example domestically. It means both the executive branch and Congress provide support for reformers within and outside of government. It requires exerting pressure on Central American governments to uphold the rule of law and undertake essential institutional reforms. And it calls for close collaboration with civil society organizations that specialize in anti-impunity, transparency, and governance.

  • Condition aid on demonstrable progress on advancing reforms and strengthening institutions. 

Foreign aid directed towards strengthening the rule of law and security in Central America is key to long-term efforts to address the root causes of migration from the region. It is essential that U.S. assistance is strategically targeted, wisely invested, and properly implemented, and that the governments of Central America are doing their part to meet key progress indicators for accountability and reform. (To track U.S. assistance programs to Central America, explore the Central America Monitor). 

  • The U.S. government should use all the tools at its disposal to make clear that anti-corruption efforts are a key priority. 

This means using tools such as the Foreign Corrupt Practices Act (FCPA), the Magnitsky Act, State Department designations of corruption, and Treasury Department targeted sanctions under the Office of Foreign Assets Control. 

  • Restore critical aid to programs that have a successful track record of directly addressing the drivers of migration, including violence and poverty

The U.S. government should funnel 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. In addition, the U.S. government should support evidence-based employment creation and job training programs that focus on at-risk youth in targeted communities.

  • Focus security-related funding on strengthening civilian law enforcement and justice institutions and making them more accountable and transparent.

Aid should be directed toward bolstering policing capacity overall (such as police investigation techniques, vetting, recruitment and training, etc.) and community policing, as well as to enhancing the independence and capabilities of prosecutors and judges by supporting merit-based evaluation and disciplinary systems and ensuring adequate protection for judges, prosecutors and other justice officials.

The Biden White House can reset Trump’s cruel and ineffective approach to migration

These short, medium, and long-term proposals aren’t that heavy a lift, if the U.S. government fully commits to them. Compared to the more than $11 billion that went into Trump’s border wall, the short-term measures are far less costly. 

The most complicated phase will be the beginning. The United States is facing down a deadly peak in the COVID-19 pandemic, thanks largely to government mismanagement. As the country confronts what will likely be a record-breaking coronavirus death toll throughout the winter and into the spring, the U.S.-Mexico border will likely face a wave of protection-seeking migration. This will create pressure to go slow on dismantling the cruel and ineffective Trump-era measures.

Unless the U.S. government deploys these five regional migration strategies, COVID-19 could portend another humanitarian crisis on our border. Read more here.

It will take time to install even the short-term infrastructure proposed in this piece. It will also take money, which Congress must appropriate and/or the Biden White House must transfer from other DHS accounts—such as funds currently dedicated to wall-building or ICE detention.

In the meantime, as the capacity to administer asylum quickly comes online, the Biden administration should recommence the asylum process in a way that is calibrated with this expanding capacity and adopt measures recommended by experts to ensure access to asylum while safeguarding public health in the midst of a pandemic. This probably means starting with particularly vulnerable people waiting in Mexican border cities under the “Remain in Mexico” program and the over 15,000 asylum seekers who have spent months on waitlists to request asylum at a port of entry. 

The Biden administration can fully dismantle Trump’s cruel and inhumane migration policies, with a credible, well-resourced, and coordinated plan across all three timeframes. It will not happen overnight, but with commitment, vigilance, guidance, and expertise, U.S. civil society and concerned members of Congress can ensure that the Biden White House takes the first critical steps. 

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