WOLA: Advocacy for Human Rights in the Americas

(AP Photo/Eric Gay)

4 Apr 2019 | Commentary

There is a Crisis at the U.S.-Mexico Border. But it’s Manageable

What Can We Do About the Humanitarian Crisis at the Border?

There is a real crisis at the border right now. It’s a humanitarian crisis, not a security threat. It’s something that the U.S. government is perfectly capable of administering. But it’s still a crisis. It’s taking a toll on migrant families, overworked Border Patrol agents, overwhelmed judges, and humanitarian aid workers.

The number of migrants apprehended at the border is no longer near 45-year lows. The U.S.-Mexico border has never seen arrivals of children and parents like it is experiencing now. As recently as 2012, just under 10 percent of Border Patrol apprehensions were kids and families, and at the time, that was considered remarkably high. Now, the proportion of children and parents is about two thirds. This is a stunningly rapid shift.


Most of the arrivals are from two countries. “November of this fiscal year marked the first time that any other country exceeded the numbers of Mexican nationals apprehended and encountered by CBP [U.S. Customs and Border Protection],” the agency’s commissioner, Kevin McAleenan, said on March 5. “Guatemalans and Hondurans are both crossing now in larger numbers than Mexican nationals.” If these high numbers continue, among those apprehended at the border this fiscal year will be 260,000 Guatemalans and Hondurans (making up at least 1 percent of the entire population of Honduras and Guatemala of 26 million people).

Unlike most of the single adults who used to be the majority of migrants, these kids, families, and other asylum seekers aren’t trying to avoid capture. Either they wait until they are permitted to present themselves to CBP officers at land ports of entry, or they cross to where they can touch U.S. soil and wait for Border Patrol to apprehend them.

By international law and U.S. law, anyone who steps foot onto U.S. soil and claims a well-founded fear of persecution in their country on account of race, religion, nationality, membership in a particular social group, or political opinion, must be given a credible fear interview, to determine eligibility for an asylum hearing before an immigration judge. Unlike “traditional” migrants—single adults seeking to evade capture—this new population of asylum seekers merely wants to reach the U.S. side and await authorities.

This is a new population.

Again, this is a phenomenon we’ve only ever seen in the past six or seven years. The Clinton and Bush administrations built walls and a giant post-9/11 border security apparatus, quintupling the size of Border Patrol, with a totally different population in mind.

That population—single adults trying to avoid capture, who were mostly Mexicanis still near 50-year lows. Nearly all of the increase is unaccompanied children and family unit members.

Walls are irrelevant to this population. Along the Rio Grande, there is always U.S. soil on which they can stand between the riverbank and any fencing. In the desert, people climb over or dig in sand to tunnel under fencing, then await Border Patrol. Just as walls are irrelevant, so would be any closure of ports of entry, as the president is threatening. “Closing the border,” in fact, could cause more asylum seekers to abandon long waitlists at the ports of entry and present themselves to Border Patrol instead.

This is a new reality, and those who deal with immigration and border issues, including policymakers, need to adjust to it.

  • It is important to recognize that a crisis exists: the “50-year lows” statistic today only applies to the single adult portion of the migrant population. But it’s a crisis requiring a fundamental rethinking of how to manage our border and migration—not the doubling down on security that the Trump administration is demanding.
  • It is important to recognize that this is a new challenge: how to accommodate a large number of asylum seekers is a new issue. It is in addition to other debates, like the wall, family separation and detention, the use of the military, DACA, and Temporary Protected Status.

Let’s get our minds around it: this is the new pattern, not a temporary surge or distortion. We saw similar child and family waves in spring of 2014 and fall of 2016. Past efforts to “deter” people, including increased enforcement in Mexico, have only managed to lower numbers for a few months. The numbers probably won’t stay this high after the weather gets hot—but we need to act as though this is going to be long-term, and will recur. Because it likely will.

Why is it happening?

People are coming for several reasons. Usually, a migrant is motivated not by a single factor, but by a combination of these:

  • Violence and insecurity: In too many communities in the Northern Triangle, failed security sectors are simply not protecting people from gangs, organized crime and gender-based violence. In some cases, citizens have been victims of repressive police tactics and abuse by state security forces. The result is seen in homicide rates among the world’s 16 highest, even including countries at war.
  • Poverty and lack of economic opportunity: After Haiti and Nicaragua, Guatemala and Honduras are the poorest countries in the western hemisphere. With at least 4.5 people in the average household (Mexico has 3.7 and the United States has 2.5), these countries have very young populations. Their rural zones, affected by drought, intensive flooding, and coffee blight, are in a state of economic collapse with a real danger of famine. The inability to find a job or support themselves through self-employment compels many young Central Americans to leave their communities.
  • Corruption: A key reason that Northern Triangle citizens are left unprotected is that their governments have been hobbled by endemic and unpunished corruption. Security forces don’t effectively pursue gangs that extort small businesses into closure. Landowners and criminals with designs on projects like mining displace rural-dwellers from their land. Corruption has also enabled smuggling networks to peddle their services openly, while corrupt security agents and migration officials on Mexico’s highways wave their buses through checkpoints.
  • Family ties: Many of those arriving have family members who already migrated to the United States. Family reunification is a strong pull factor, usually in addition to the others listed here.
  • The backlog itself: as we note below, the U.S. government’s asylum system is so underequipped that people requesting asylum after being apprehended at the border or port of entry now must wait in the United States for years before their cases are decided. The ability to stay here during that period—often while reunited with family members who already migrated, and participating in the tight U.S. labor market—may contribute to some individuals’ decision to leave.

What can we do about it?

A new population requires a new, humane approach. The wave of asylum seekers can be administered, without need for an expensive security buildup. We offer five proposals. Here they are, from north to south, in reverse order along the migrant trail.

1- More courts and judges in a reformed asylum system.

As of January, there were over 850,000 cases in the immigration court system, up from about 300,000 in 2012. As of September 2018, there were only 395 judges to hear them. That’s 2,165 cases per judge. Families who show up right now are being released with notices to appear in courts, after which they are assigned dates as much as four years into the future. In the meantime, they wait in the United States.

How do we resolve this? By putting more resources into administering this new population.

  • Hire more judges and staff for the immigration court system and eliminate case quotas. We need to significantly increase the number of judges and support staff in the system while not pressing judges to quickly decide cases. Increase the diversity of judges by “broadening the hiring pools and outreach programs” as recommended in a 2017 report commissioned by the Executive Office for Immigration Review (EOIR). More broadly, address the dysfunctionality of the immigration court system, including the lack of resources, transparency, and judicial independence. This should involve adopting the recommendations of the American Bar Association’s recent report on reforming the immigration system, including making the immigration courts an independent agency.
  • Do not speed cases to the detriment of due process. Asylum cases involve life or death decisions, but they can be complicated and take time to resolve. The goal should be to reduce or eliminate backlogs, not to fast-track the case proceedings themselves in ways that weaken applicant’s’ ability to defend their claims.
  • Expand access to legal counsel. A 2017 report from TRAC at Syracuse University found a decrease in the number of asylum seekers with access to legal counsel in their immigration proceedings. At the same time, those with access to legal representation were five times more likely to gain asylum than those representing themselves. Legislative efforts, such as the “Fair Day for Kids in Court Act,” which would guarantee legal counsel for unaccompanied children and strengthen legal orientation program, are a step in the right direction and should be supported.

2- Get serious about alternatives to detention, especially family case management.

The United States continues to detain a high number of asylum seekers, including some families, while they await their immigration hearings. This practice further traumatizes individuals fleeing violence and persecution while restricting their access to legal counsel.

Administering the asylum system means ensuring that asylum seekers participate in it fully, with assistance if needed. This can be done without locking them up. Detention should always be a last resort, and shouldn’t apply to families at all. We’re not a country that should pay for locking up families. ICE reported to Congress that family detention will cost $295.94 per family per day in 2020, down (for unclear reasons) from $318.79 in 2019.

The Trump administration should expand, not curtail, alternatives to detention programs. For example, programs that involve caseworkers keeping in frequent touch with asylum-seeking families have brought very high compliance rates for a small fraction of the cost. For $36 per day, an ICE-run Family Case Management Program was achieving a 99 percent compliance rate as a pilot project, with no need for ankle bracelets, until the Trump administration terminated it in 2017. It is high time to evaluate this experience, make any modifications to a revived program, and expand it across the country to manage this new population of asylum seekers awaiting their hearings.

3- Massively revamp our ports of entry.

Ideally, asylum seekers should just be able to present themselves to CBP officers at land ports of entry, instead of wading across the Rio Grande or jumping the wall. The opposite happens right now: asylum seekers are waiting for weeks or months in nearly all Mexican border towns for their turn to approach ports of entry that allow in only a handful each day at best.

One justification the government uses for its “metering” system to limit the number of daily asylum seekers is “capacity”: either a lack of holding space or personnel, or perhaps both. Our ports need to be modernized so that such long waits will be unnecessary: asylum seekers should be steered from rural sites toward the ports, not the other way around. That means filling staffing shortfalls, estimated at about 4,000 CBP officers, and infrastructure needs, estimated at about $5 billion.

This is important to speeding the asylum process and making it safe, orderly, and predictable. It’s also needed for drug interdiction since over 80 percent of all drugs except cannabis are seized at the ports of entry.

4- Recognize Mexico’s efforts to support Central American migrants and expand access to asylum.

The López Obrador administration has affirmed that it will respect the rights of migrants traveling in its territory. It is promoting a joint response to migration flows, focused on shared responsibilities and actions, particularly on economic development, by the governments of Central America, Mexico, and the United States. It has announced its intention to expand Central Americans’ ability to live and work in Mexico, while representatives of Mexican business associations point to labor shortages in parts of the country that migrants could fill.

While apprehensions dropped during the first three months of López Obrador’s government, this was likely due to the number of migrant caravans traveling through Mexico and the government’s decision to issue over 13,000 humanitarian visas to these individuals so that they could live and work in Mexico for at least one year. In February 2019, Mexico apprehended 9,155 Central Americans traveling through Mexico, only a slight drop from the 10,919 it apprehended in this same month in 2018. There continue to be concerns about treatment and effective screenings for protection concerns for migrants in detention.

Apart from providing legal ways for migrants to live and work in Mexico, the Mexican government has affirmed a commitment to expand access to asylum in the country. Asylum requests in Mexico almost doubled from 2017 to 2018, and the UNHCR’s conservative projections suggest at least 47,000 asylum claimants in Mexico for 2019, up from 29,600 last year. Mexico’s Commission to Support Refugees (COMAR) received over 12,700 asylum requests in the first 3 months of 2019. While requests are rising, without support from UNHCR Mexico’s asylum system would not have the capacity to process more than a tiny fraction of cases of individuals seeking protection on an estimated 2019 budget of a mere $1.2 million.

Rather than bashing Mexico for not doing enough to address Central American migration (or recognizing Mexico for its enforcement efforts, depending on the day of the president’s tweet), and rather than enacting illegal programs that force many non-Mexican asylum seekers to wait in Mexico while their cases move through U.S. immigration courts, the Trump administration should follow Mexico’s lead and address the root causes of migration from Central America while expanding, not limiting, access to protection in the United States.

Both countries should also work together and with the UNHCR to ensure that a procedure is in place to support Central Americans at risk who deem that the United States is the most appropriate place for them to request asylum, either due to family ties, concerns about safety in Mexico, or other reasons. This is particularly the case for unaccompanied children who may qualify for asylum in Mexico but who have parents or other family members in the United States.

5- Contribute to efforts to make Central America a place people don’t need to flee.

There is no magic solution to the endemic insecurity, violence, poor governance, and poverty in Central America. These are difficult problems that will require a long-term, sustainable strategy and the political will and commitment of Central American governments. There are lessons of a decade of aid since the Central America Regional Security Initiative (CARSI) began. We’re not following all these lessons right now.

  • Start by recognizing the link between corruption, insecurity, and migration. Corruption permeates nearly all government institutions throughout the region. Corruption has allowed criminal networks to infiltrate state institutions while corroding access to, and the quality of, education, health, public security and other basic public services. Strengthening the rule of law and tackling corruption should be top priorities for U.S. policy in Central America.
  • Identify and support the reformers and corruption fighters, both within and outside government. This includes good attorneys-general, prosecutors, and judges, and international anti-corruption mechanisms such as the International Commission against Impunity (CICIG) and the Mission to Support the Fight against Corruption and Impunity in Honduras (MACCIH).
  • Condition any aid to Central American government agencies on demonstrable progress on much needed reforms.
  • Focus security-related funding on bolstering community policing, police vetting, recruitment and training, and police investigation techniques, and in making security institutions more accountable and transparent. Ensure that police work is done by civilian police, not combat-trained soldiers.
  • Support efforts to strengthen the independence and capabilities of prosecutors and judges, develop or implement results-based evaluation and disciplinary systems, and to ensure the protection and security of judges, prosecutors and others working in the justice sector.
  • Target assistance to support evidence-based employment creation and job training programs that focus on at-risk youth in targeted communities, and provide emergency humanitarian assistance for the countryside, especially given the severe drought affecting Guatemala.
  • Support community-level programs to reduce youth crime and violence, reintegrate youth seeking to leave the influence of gangs and criminal groups, and protect women, young people and children who have suffered violence. Evidence suggests that USAID-funded violence prevention initiatives have made a difference in communities by making people feel safer and contributing to a reduction in crime.
  • Help strengthen the capacity of civil society organizations to provide independent oversight of national and local governments and support their efforts to hold governments accountable.
  • Bring pressure to bear on the Central American governments to ensure the protection of human rights defenders and journalists, and the full investigation and prosecution of perpetrators of human rights violations and corruption.
  • Pressure to increase revenue collection and accompany countries in those efforts.

If these five recommendations were to become policy, we’d be close to fully addressing the humanitarian crisis, a situation in which:

  • Far fewer Central Americans would feel the need to leave their homes.
  • Those who did would have access to job opportunities or a smooth asylum process in Mexico.
  • Those who felt unsafe in Mexico, or deemed the United States to be the most appropriate place to request asylum, would have an orderly, not terrifying, journey to the United States.
  • Once they reached the U.S. border, they would be swiftly processed at a well-equipped port of entry.
  • After that, they would be supervised by a high-touch case management program.
  • They would have access to legal counsel.
  • And their “alternatives to detention” experience would be minimal because immigration courts were not backlogged and could try the cases in as little time as due process demands.

The short term: What about right now?

Many of these proposals will take years to go online and then yield results. The crisis is now. In the short term the United States should:

  • Relieve Border Patrol agents from tasks that others can do, such as processing forms and changing diapers. That is not what they have been trained to do. Non-uniformed personnel trained in working with people who’ve been through trauma, and child welfare professionals, should be carrying out post-apprehension tasks.
  • Expand short-term holding capacity to process migrants and asylum seekers in a timely and humane manner. The continued use of the Ursula Central Processing Center facility in McAllen, or the new facility being built for $192m in El Paso should be done in a way that treats asylum seekers like human beings. We need to get rid of the cages, cold temperatures, and Mylar blankets. Act quickly to address the backlog of asylum seekers at the ports of entry and make the process rational. This means adding additional agents and providing clear information about port capacities and wait times.
  • Immediately cancel the “Migrant Protection Protocols” (also known as “Remain in Mexico”) that illegally return asylum seekers back to Mexico to await their immigration proceedings, with no way of notifying these individuals about changes in the dates of their hearing or sending any other official correspondence, compromising their right to due process and placing them at risk in violent Mexican border towns.
  • Hire people who speak indigenous languages to assist in processing claims.

What shouldn’t be done about it?

The Trump administration has offered no shortage of proposals—shutting the border, cutting aid to Central America, and expediting deportations—that will only make matters worse. Those are the virtual opposites of the humane, orderly administrative approach that WOLA recommends here. The White House would double down on a security-focused, punitive strategy designed for countering criminals at the border, not for managing arrivals of children and parents.

  • We propose working with reformers in Central America to address the violence, corruption and lack of economic opportunities driving irregular migration from the region. The administration wants to cut all aid to El Salvador, Guatemala, and Honduras.
  • We propose recognizing Mexico’s role in supporting Central American migrants and asylum seekers. The administration wants to punish Mexico.
  • We propose expanding and modernizing land ports of entry. The administration wants to shut down the border and build costly walls.
  • We propose effective, inexpensive, and non-intrusive alternatives to detention. The administration wants to expand detention, even if it means holding families and children for months at great expense, or force asylum-seekers to await their hearings in Mexico.
  • We propose more judges and courts. The administration proposes weakening due process.