By Ethan Baker '24
Perhaps the most visible issue the Biden Administration faces today is the increasing number of migrants arriving at the Southern border. While the factors leading to the current situation are complex, one of the biggest is the ineffective US asylum process. The current system is inhumane, results in overcrowding at the border, and is dangerous for migrants. However, there are potential solutions, namely changing the asylum application process, changing the departments that oversee the process, and providing counsel for defensive asylum applicants.
As it currently stands in the United States, there are two ways migrants can apply for asylum: affirmatively and defensively. In an affirmative asylum process, migrants apply with United States Citizenship and Immigration Services (USCIS,) a subdepartment of the Department of Homeland Security. Federal law requires migrants to be physically located in the United States when they apply and they have until one year after their entry to file an application. After a migrant files an application, a USCIS office interviews them to determine their eligibility. A defensive asylum process takes place either after their application is rejected by USCIS, when they are in removal proceedings in immigration court, or when they are found to have a fear of persecution if they return to their home country by a Customs and Border Protection officer. In this case, they must present their case to an immigration judge who then determines whether they are eligible. Many defensive asylum applicants are held in detention by ICE.
In both cases, the process presents challenges that make it inhumane and ineffective. For one, migrants must be physically located in the United States when they apply, meaning they must make dangerous journeys from their home countries, oftentimes through hundreds of miles of remote desert. Many migrants die on this journey each year. One migrant describes her experience as a little girl when she blacked out in the desert because of her hunger and thirst during the middle of a massive thunderstorm. Another talks about the difficulty of his three-day journey when he was three. He had no access to water and was forced to drink a coyote’s beer. Moreover, because there are so few opportunities for legal entry, migrants are forced to pay coyotes to help them enter the US illegally, putting them at risk for exploitation like in the instances above. When migrants enter illegally, they then are at risk to be arrested and then detained by ICE, often for long periods of time where they must begin the defensive asylum process. This detention is especially dangerous for families, who make up many asylum seekers from Central America. This process is traumatic for children and puts entire families at risk for abuse in what are often dangerously overcrowded and poorly run “detention centers,” a.k.a prisons.
Once these migrants are finally granted an asylum hearing, they must present their case before an immigration judge, where they must prove their eligibility for asylum. Because cases in immigration court are civil cases, asylum seekers are not entitled to legal counsel and must often represent themselves in a country where they are usually unfamiliar with the legal process and language. In one example of the cruelty of this system, not even children are guaranteed an attorney, meaning they must often represent themselves. As a result, children as young as four years old must make their claim why they are entitled to asylum without any legal assistance whatsoever. Also, the outcomes to these hearings depend more on the specific judge and the location of the hearing than on the actual claims being made.
Despite the numerous issues with the current system, there are a number of common-sense reforms that would do much to alleviate many of the current problems. The first would be allowing migrants to apply for asylum from their home countries. A limited version of this proposal that applies to only certain refugee children from several nations was already included in a Biden executive order, meaning this is a policy change that could be made without Congress. Allowing migrants to apply for asylum from home would allow them to avoid a dangerous journey where they are at great risk for exploitation and are forced to enter the United States illegally and would instead give them a legal pathway to entry. This change would be best achieved by incorporating asylum seekers into the structures already in place to bring refugees to the United States and help them integrate here. Specifically, the State Department Bureau of Population, Refugees, and Migration already has programs in place to fund the relocation of refugees to the US. While this office is not currently capable of relocating the large number of asylum applicants from their home countries, this system would reduce the number of asylum applicants in detention, which would in turn open up funds that provide for the expansion of the Bureau of Population, Refugees, and Migration.
Additionally, moving asylum processing to the State Department would rightfully recenter asylum as a humanitarian issue instead of a national security one. In one regard, this change in focus could reduce the criminalization of asylum seekers, and lead to their recognition as human beings in need instead of dangerous criminals who need to be locked up until they are deemed worthy of aid. Furthermore, beyond this basic recognition of the humanity of asylum seekers, decriminalizing asylum would also reduce the number of migrants in immigration detention facilities, which is beneficial both to the migrants themselves and to the US government.
Furthermore, the State Department Bureau of Population, Refugees, and Migration could also take over responsibilities currently dealt with by USCIS and the Executive Office for Immigration Review (EOIR) that currently handle asylum cases. The most effective way to implement this change would be to keep current USCIS asylum officers in charge of processing applications and move them to the State Department, completely cutting the EOIR out of the process. USCIS officers are already highly trained and capable of managing asylum cases, without involvement from the EOIR and highly inefficient immigration courts, staffed with capricious judges. In addition to reducing the backlog in these courts, giving USCIS officers and the State Department more control over the process would increase equity for all migrants.
While ideally no migrants would face immigration court, this is an unrealistic goal in the current political climate and ignores those currently struggling in the defensive asylum process. Consequently, the last major reforms that would increase equity for migrants are related to this process. The first is to provide all defensive asylum applicants with an attorney to represent them in what is often a complex and unfamiliar process. While there is no constitutional right to counsel because immigration courts are not criminal courts, similar programs already exist for unaccompanied minors and migrants with mental health disorders. The scope of these programs could be expanded to include all migrants using existing federal funds, meaning the Biden administration could act without Congress to provide all migrants in detention with legal counsel. The cost for all of this: likely several hundred million dollars, a mere fraction of the $8 billion ICE budget. Additionally, the benefits of free legal counsel would be enormous for migrants. In removal proceedings, migrants represented by an attorney were five times more likely to win their case compared to those who were forced to represent themselves, so the benefits are enormous. Providing all asylum seekers with counsel would help the most vulnerable people in the world effectively plead their case, preventing them from being forced to return to a dangerous situation in their home country.
The current asylum system in the United States is inequitable, oftentimes downright cruel, and forces vulnerable people to undergo dangerous journeys where they face exploitation or even death. It is time to turn to a new system, one where migrants are not forced to sit in prison but are instead recognized as people in dire need and are given the aid and respect they need and deserve. The first steps to creating this new system are allowing asylum seekers to apply from their home countries, transferring control of the process to the State Department, and providing all defensive asylum applicants with free legal counsel. While these reforms cannot fix every problem, they would go a long way towards helping those who need it most.