Economic migrants use it as an easy means into the country, but Trump has options.
Peter VAN BUREN
America’s asylum laws, meant to help the most vulnerable, have instead become a clogged backdoor for economic migrants. The Trump administration is restoring asylum to its correct role in American immigration policy. It’s the right thing to do, but almost nobody is satisfied. Here’s why.
Asylum is a very old concept, dating back to the ancient Greeks. It recognizes that a person persecuted by his own country can be offered residence and protection by another country. The actual conditions vary considerably across the globe (the U.S. considers female genital mutilation grounds for asylum while in many nations it is an accepted practice). But in most cases, asylum is offered to people who face a well-founded fear of persecution if sent home on account of their race, religion, nationality, political opinion, or social group.
The definition of those five protected grounds have also varied greatly based on shifts in American domestic politics. Since 1994, for example, LGBT status has been, and remains under Trump, a possible claim to asylum. Domestic violence was granted consideration as grounds under the Obama administration, only to be rolled back under Trump.
But even as those criteria have changed with the political winds, asylum has never been simply about wanting a better life. Poverty, for all its horrors, has never fallen alongside race, religion, nationality, political opinion, or social group (though it is often assumed to by progressive journalists without access to the Internet and certain Democratic legislators from the Bronx).
The reality of 2019 is that the asylum system has evolved into a cheater’s backdoor, a pseudo-legal path to immigration not otherwise available to economic migrants. They lack either the skills for working visas or the ties to qualify for legal immigration under America’s family reunification system. So they walk to the border and ask for asylum, taking advantage of previous administrations’ look-the-other-way “solution” to their ever-growing numbers. Affirmative asylum claims, made at ports of entry, have jumped 35 percent over the last two years, even as refusal rates for those cases along the Southern border have run into the 80th percentile.
It works—for them. A Honduran on the border who says he came to work is sent back almost immediately. However, should he make a claim to asylum, the U.S. is obligated to adjudicate his case. Since detaining asylum seekers and their families while the processes play out is expensive and politically distasteful (kids in cages!), until recently most asylum seekers were instead released into American society to wait out their cases. They then became eligible for work authorization if their cases extended past 150 days, as almost all did. The number of pending cases in early 2019 was 325,277, more than 50 times higher than in 2010.
Eventual approval rates for all nationalities over the past decade average only 28 percent. (In some places, the approval rate is as low as 15 percent, which someargue is because of unfairness in the system rather than illegitimate claims. Others claim the approval rate is bogus, reflecting clever coaching by immigration lawyers instead of legitimate fears.) Yet even after they’re denied, applicants can either refile as defensive asylum claims or simply disappear into the vast underground of illegals.
Previous administrations’ plans to create expedited asylum processes have proven ineffective, as numbers just increase endlessly to fill the available opportunities. Simply making a claim to asylum has often been enough to live and work in America. Trump is changing that.
The most visible change is that asylum seekers and their families are being detained at the border rather than released into society. Detention is a deterrent to economic migrants making false claims to asylum, statistically somewhere between seven to nine out of 10 persons plus their families.
The next change was for the Trump administration to negotiate for asylum seekers to wait out their processing times not in American society or a detention facility, but in Mexico through a program called the Migrant Protection Protocols. People at the border make their asylum claims, and are then nudged a step backward to wait for an answer in Mexico. This relieves the U.S. of costs both monetary (the House just voted an additional $4.6 billion to be spent on beds and baths for detainees) and political.
Mexican officials estimate that about 60,000 people will be sent to Mexico by the end of August under the Migrant Protection Protocols. The policy seems to be effective in weeding out economic migrants, as many, denied the chance in America to work off their debts to the human traffickers they paid for the journey north, choose to return home to Central America, abandoning their previous sworn assertions that such a return would imperil their lives.
A more significant Trump change to U.S. policy has been to bring it in line with the European standard (the Dublin Convention) of country of first refuge. Most of Europe subscribes to this model, which requires asylum claims to be made in the first country that can offer refuge. The idea is that a person legitimately fleeing a repressive government would want safety as soon as possible. If the person is really an economic migrant, this will stop him from “forum shopping” to see if the benefits are better in Italy or Austria—or Mexico versus the United States.
In the American context, if someone is fleeing gang vengeance in Honduras, Mexico would become his refuge even though his cousin needs help at the restaurant in Chicago. The U.S. will thus not consider asylum seekers who pass through another country before reaching the United States (the order is being challenged in the courts).
To put the plan into practice, the U.S. reached a deal with Guatemala for that nation to take in more asylum seekers from other Central American nations, and is expected to sign similar agreements with El Salvador and Honduras. Washington has had an identical but little-noticed arrangement in place with Canada for many years, allowing it to not consider asylum applications from persons who did not apply first while in Canada. Despite the media hysteria about cruelty, this idea is nothing new.
The impact of these changes will be significant. Though Mexico does not yet have a formal, safe, third country agreement with the U.S., its Commission for Aid to Migrants projects 80,000 asylum requests this year, up from only 2,137 five years ago. Mexico and other Central American nations are expected to also become places of first refuge for the many Haitians, Cubans, and Africans who previously just passed through en route to America.
This illustrates an ancillary benefit to moving some of the costs of housing migrants to Mexico and asking for more asylum processing by Guatemala and other nations: it gives them a reason to police their own borders. Until recently, there was no incentive for these countries to stop migrants headed north, and indeed much incentive to pass on the problems by opening their own borders to northbound traffic. This same thinking allowed human traffickers and drug dealers to operate with near impunity.
Following all this, the newest change concerns derivative claims to asylum. Spouses and minor children of those approved for asylum continue to be granted asylum alongside principal applicants. Attorney General Barr, however, recently overturned a decision by the Board of Immigration Appeals saying a Mexican adult man could apply for asylum on the basis of his father being targeted by a cartel. Previous administrations held that such an adult, while obviously not a dependent minor, would still automatically “inherit” asylum as the member of a particular social group, his extended family. Barr says now that the adult can still apply today for asylum, but now has to prove his case independent of his father.
Americans broadly favor immigration in general. But the gap between orderly immigration and unfettered immigration based on how many people can slip through physical holes in the border and loopholes in the law has grown too wide, to the point that a quarter of the 45 million foreign-born people currently in the U.S. arrived here illegally. Some 60 percent of likely voters support efforts to “prevent migrants from making fraudulent asylum claims and being released into the country.” As Europe has acknowledged and America is learning, modern immigration comes with considerable social and political costs, which will be accounted for by society one way (good and thought out) or another (violent and chaotic).
As David Frum melodramatically wrote, “if liberals won’t enforce borders, fascists will.” Rewriting that a bit, if Congress will not reform immigration policy in line with a broad national consensus, then whoever is in the White House will, albeit in a piecemeal fashion. This is why Obama’s DACA reforms didn’t outlast his administration, and why if a Democrat wins in 2020, Trump’s changes to asylum processing will also be rolled back. Nothing gets permanently resolved that way, and it needs to be.