Recently, Customs and Border Protection personnel deployed tear gas to disperse hundreds of Central American migrants, including women and children, who were attempting to claim asylum at the border at San Ysidro. Many Americans wondered, as they saw images of small children running away from tear gas, how the United States had reached this point. One of the key reasons is that the administration's policy options to deal with the caravan of migrants arriving at the U.S. border to claim asylum appear to be limited.
The Immigration and Nationality Act, the federal law governing immigration and border security, is clear that individuals who are present in the United States (even those who entered unlawfully) or who present themselves at ports of entry have the right to claim asylum and have those claims adjudicated. However, the surge in asylum claims during the past five years has simply overwhelmed the immigration system's ability to process these claims in a timely manner.
Because U.S. ports of entry on the border are busy hubs for commerce and travel, Customs and Border Protection does not have the space or the resources to refer these cases to U.S. Citizenship and Immigration Services asylum officers for processing quickly enough to avoid a backlog. So in recent years, Customs and Border Protection has worked with Mexico to “meter” asylum seekers to a number that can be referred and processed without adversely affecting trade on the border. This practice began during the Obama administration and has been widely criticized by human rights groups.
News reports in recent weeks revealed that the Trump administration is working with newly sworn-in Mexican President Andrés Manuel López Obrador on a policy proposal that would require asylum seekers from Central America to remain in Mexico while their asylum cases are adjudicated in the United States, a process that could take many years to play out. Details on the proposal are scarce, but the administration is presumably relying on statutory language that allows migrants to be removed to a safe third country—Mexico in this instance—but also gives the attorney general the discretion to allow migrants to receive asylum in the United States rather than the third country.
Mexico is apparently not interested being designated the safe third country, which would allow the United States to return migrants seeking asylum to Mexico so they could apply for asylum in Mexico, but has opened the door to allowing migrants to remain in Mexico while their cases are adjudicated. This policy would at best be an imperfect solution to the problem and will likely be immediately challenged in federal court.
But how would it work in practice? The system would be logistically unwieldy for U.S. officials. Migrants would have to be allowed to enter a port of entry to make an asylum claim, and then they would be required to return to Mexico. The United States would have to develop a system for letting them know, while they are in Mexico, when they are expected to appear in immigration court in the United States. The migrants would have to be “paroled” (a limited form of entry under the INA) into the United States to appear in court, and they may require escorts to and from the courts. Should the migrants have counsel in the United States, the government would presumably have to implement a system to allow them to access their lawyers. Additionally, this system could potentially subject migrants to dangerous conditions on the Mexican side of the border.
The Trump administration apparently believes that this policy will deter migrants from seeking asylum. But it may also push migrants to cross the border unlawfully between ports of entry in order to claim asylum.
It is unclear from published reports what the incoming government of Mexico might ask from the United States in return for its assistance in this plan—should the Mexicans agree to it. Given the fact that these migrants could remain in Mexico for years and may require government services during this time, Mexico may seek funding from the United States.
Are there any better policy options? Under current law, the administration's options are limited. Congress could consider whether it makes sense to allow migrants from Central America to apply for asylum or some other legal status in their countries. This would have the benefit of not requiring migrants to take the dangerous journey to the U.S. border, while addressing the fact that a non-trivial percent of migrants—around 10 percent to 15 percent—succeed in their asylum claims.
Another potential option could be to increase the ability to detain families in the United States during the asylum process by building more non-secure, state-licensed facilities for detaining families. And a third option could be to substantially increase the number of immigration judges in order to decrease the backlog in immigration court cases. In the end, the unfortunate events in San Ysidro are yet another stark reminder that the U.S. immigration system could benefit from comprehensive reform.
Blas Nuñez-Neto is a senior policy researcher at the nonprofit, nonpartisan RAND Corporation.
This commentary originally appeared on Dallas Morning News on December 4, 2018. Commentary gives RAND researchers a platform to convey insights based on their professional expertise and often on their peer-reviewed research and analysis.