Beyond the Wall Recommendation: Fix the Badly Broken Asylum System in the United States

(AP Photo/Eric Gay)

The Trump administration has carried out a sustained assault on migrants that’s ending the right to asylum as we know it.

It doesn’t have to be this way.

Improving the U.S. asylum system requires: ending “metering,” “Remain in Mexico,” the asylum cooperation agreements, the third country transit asylum ban, and programs that fast track asylum cases; getting serious about effective alternatives to detention; and ensuring migrants receive due process in immigration court.


Ending “metering,” “Remain in Mexico,” Asylum Cooperative Agreements, the third country transit asylum ban, and fast-track asylum programs.

Rather than upgrade and humanize our broken asylum system, the Trump administration has instead carried out a sustained assault that’s ending the right to asylum as we know it. To accomplish this, the United States has implemented a series of policies that have reduced border apprehensions by forcing asylum seekers into situations that are often as dangerous and dehumanizing as the ones they’re escaping.

The U.S. government has implemented “metering,” a policy which has forced thousands of migrants to wait for months for an appointment with U.S. customs officials at an official port of entry. President Trump has threatened the Mexican government into accepting “Remain in Mexico,” a policy by which some 62,000 asylum seekers have been forced to wait for their U.S. asylum hearings in dangerous Mexican border towns during the last year. Rather than work constructively with Central American countries to address the drivers of migration, this administration has instead intimidated them into accepting “safe third country” deals, which the DHS calls Asylum Cooperative Agreements, through which Central American migrants seeking asylum in the United States are being sent to Guatemala, and who could soon also be sent to Honduras and perhaps El Salvador to apply for asylum there. As of February 2020, 670 individuals from El Salvador and Honduras, including 266 children, had been sent to Guatemala to seek asylum there. These countries are clearly not safe and have asylum systems that are woefully inadequate to the task of processing large numbers of people seeking refuge.

To further restrict asylum, the Trump administration enacted an additional ban on asylum, issuing an interim final rule on July 16, 2019 that deems asylum seekers arriving at the southern border as ineligible for asylum in the United States if they have transited through at least one other country other than their country of origin and they have not applied for asylum in that country. Under this rule, with very few exceptions, the only people able to seek asylum at the border are Mexican asylum seekers.
The Trump administration also launched the “Prompt Asylum Case Review” (PACR) as a pilot program in October 2019, which has now been extended to other parts of the border. PACR applies to asylum seekers from any country, who are held in CBP detention facilities while their cases are resolved. Going outside of the formal asylum process, these cases are resolved in 10 days or less, and asylum seekers have limited to no ability to access a lawyer and few ways to gather any additional information to strengthen their claims. A similar program, the Humanitarian Asylum Review Process (HARP), applies to Mexican nationals.

These policies have taken a significant regional migration policy challenge and turned it into an unmitigated humanitarian crisis.

We must immediately end these policies that have forced large numbers of asylum seekers into dangerous situations, often in Mexican border towns where criminal groups kidnap and abuse them to gain profits. Instead, the United States should establish an independent court system, hire more judges and support staff; create more courts to strengthen an overburdened asylum system; maintain due process protections for asylum seekers; and provide adequate legal counsel.

Getting 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 asylum hearings. Years of research documents that migrant detention further traumatizes people fleeing violence and persecution, while restricting their right to due process.

The Trump administration’s detention practices have magnified the grave deficiencies built into the U.S. detention system. The changing demographics of the migrant population have resulted in the cruelties of family separation and the possibility of indefinite detention of children in inhumane conditions.

Detention should always be a last resort and should not apply to families under any circumstances. Evidence-based alternatives to detention programs should be expanded. Family case management systems, in which caseworkers frequently keep in touch with asylum-seeking families, have maintained incredibly high compliance rates for a fraction of the cost. In fact, an ICE-run family case management pilot program that cost $36 a day reached a 99 percent compliance rate before it was shut down by the Trump administration in 2017. In comparison, ICE estimates it will spend $295.94 per family in detention per day in 2020.

Ensuring asylum seekers and migrants receive due process and a timely hearing in immigration court.

As of September 2019, there were more than 1 million cases in the immigration court system, and only 395 judges available to hear these cases. Before “Remain in Mexico,” a family that arrived at the border and received a notice to appear in court for their asylum hearing would often be assigned a court date nearly four years into the future.

Furthermore, whether an asylum seeker’s claim gets accepted or not is highly dependent on which immigration 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.

This arbitrary and overcrowded system is an untenable situation, and 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.

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