As thousands of asylum seekers approach the Southern border in “caravans,” the Trump Administration is reacting harshly. Border Patrol Agents fired tear gas at men, women, and children. The crossing at San Ysidro has been closed, resulting in significant economic losses in San Diego (businesses on the U.S. side earn between $10 and $15 million per day from Mexican consumers). And U.S. immigration authorities are essentially denying migrants’ right to apply for asylum by insisting that they can process only 60 to 100 cases per day.
DHS Secretary Kirstjen Nielsen writes that the “caravan… entered Mexico violently and attacked border police in two other countries.” She states that the caravan is well organized and includes more than 8,500 individuals, with more on the way. Most of the migrants are men, she writes, and the “limited number of women and children in the caravan are being used by the organizers as ‘human shields’ when they confront law enforcement.” Secretary Nielsen claims that, “we have confirmed that there are over 600 convicted criminals traveling with the caravan flow.” How this has been “confirmed,” she dos not say. Secretary Nielsen also states that most migrants are coming here for jobs or to reunite with family members, and notes that, “Historically, less than 10% of those who claim asylum from Guatemala, Honduras, and El Salvador are found eligible by a federal judge.”
Others who have witnessed the migration paint a somewhat different picture. For example, a photojournalist who traveled with the caravan in Mexico estimates that 25 to 30 percent of the migrants are families with children. Other members of the group are elderly. “Though many were fatigued and battered by the experience,” he writes, “they often expressed a good deal of hope for what awaited them at the border.” Another journalist who interviewed migrants found that the people he spoke to were fleeing violence in their home country.
So there is disagreement over who the migrants are, and why they are coming here. But what are the legal, policy, and political implications of the caravan?
First, anyone who arrives at a U.S. border is entitled to apply for asylum. The law on this point is pretty clear–
Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum in accordance with this section….
The Trump Administration wants asylum seekers to wait outside the U.S. while their cases are decided. Whether this is lawful is not so clear. The law seems silent on this point, though the Attorney General has the authority to “establish a procedure for the consideration of asylum applications.” Arguably this would include where the applicants must wait while their cases are adjudicated. My guess is that this “wait in Mexico” policy–like most of the Administration’s other policies–will be subject to a court challenge.
There are also practical and policy implications for how we deal with the caravan. The Trump Administration claims that it only has the capacity to process 60 to 100 cases per day. This, I don’t believe. Statistics from the Asylum Division show that in FY 2018, Asylum Officers conducted an average of 253 credible and reasonable fear interviews per day (assuming the Officers are working 365 days per year), and in the busiest month (June 2018), they conducted an average of 318 interviews per day (again, working every day). Admittedly, these figures are for all parts of the country, but they illustrate the government’s capacity to deal with a crisis if it chooses to.
At the present rate, the government will need 3 to 5 months to screen the current group of people waiting at the San Ysidro crossing (assuming that no more asylum seekers arrive there). Whether Mexico has the will, ability or legal obligation to accommodate large numbers of people waiting for asylum in the U.S., I do not know. Rumors of an agreement between the Trump Administration and the incoming Mexican President are still unconfirmed, but even if Mexico agrees to host the migrants, it is unclear whether they can deal with so many people.
The legal effect of the long wait is clear: Some asylum seekers will be denied their right to seek asylum in the U.S. The practical effects are also pretty obvious. The Mexican side of the border is unsafe and economically weak. The migrants will have a hard time remaining there while they wait for decisions. Imposing cruel conditions on people fleeing persecution seems an inhumane way to deter people from exercising their legal right to seek asylum, but that has been the modus operandi of the current Administration.
I imagine there will also be political and economic consequences for our country if large numbers of Central Americans get stuck on the Mexican side of the border. Besides straining relations with Mexico, we set a bad example. If the U.S. rejects these relatively few refugees, will other countries follow our lead and deny protection to people fleeing persecution? Will they use violence to keep refugees out? The implications for international humanitarian law are potentially dire.
While I am no fan of the Trump Administration’s border policies (or most of its other policies), it is not enough to criticize without offering an alternative. That is easier said than done. Compared to migrations in the past, the current numbers are relatively modest. Indeed, the overall number of illegal entrants for 2017 is significantly down from peak periods in 2014 (for Central Americans – down 41%) and 2007 (for Mexicans – down 80%). Nevertheless, our country’s tolerance for immigration seems lower, and something needs to be done.
One idea (possibly DOA from a political standpoint) is to make the argument that screening and admitting asylum seekers is good for us. First, helping people who are fleeing harm is the right thing to do. Also, asylum seekers are less likely to commit crimes than the average American, they tend to use fewer public benefits, and they are a net economic gain for our country. Certainly, we should be working to convince the general public that a more liberal immigration policy would be beneficial.
But in examining policies solutions, we need to keep in mind that most Central American asylum seekers will not qualify for protection. This is not because their countries are safe. Rather, it is because the type of harm most Central Americans face does not easily fit within the legal framework of asylum (also, many such applicants lack legal representation and cannot properly present their cases). Unless this changes, it makes sense to process the cases as quickly and fairly as possible, and to return those who do not qualify for protection.
Also, we need to decide where and how people will wait for their decisions. How many asylum seekers abscond rather than appear for hearings? Are some types of migrants (families, for example) less likely to abscond than others? Do we need detention or “wait in Mexico” at all? If so, do alternatives to detention (such as ankle bracelets) work? How can large numbers of refugees be kept safely for a period of months? These are not easy questions to answer, but the answers are knowable and I have little doubt that we can manage the border humanely and honorably, if we so choose.
In the wake of Democratic successes in the 2018 election, politicians may conclude that they have more to gain by working towards immigration reform than by using immigrants as boogeymen to rally voters. But compromise is not easy. It requires that we all do something that is not very American: Accepting less than everything we wanted. I doubt that any reform would give us the immigration system that I envision, but I still feel hopeful that we could end up with something better for our country–and better for immigrants and asylum seekers–than we have now.
