The Real Origins of the Border Crisis – Foreign Affairs Magazine
In April 2023, New York Mayor Eric Adams gave an unusually testy press conference about the Biden administrations border policies. Over the previous year, more than 57,000 asylum seekers had come through New Yorks already overstretched shelter system, and they were still arriving at a rate of about 200 people a day. The city had taken over 103 hotels as emergency shelters. More than 14,000 migrant children had been enrolled in public schools. Calling it one of the largest humanitarian crises that this city has ever experienced, Adams said that the cost of assisting the new arrivals had soared to $4.3 billion over two years, forcing him to make across-the-board budget cuts in other city services. The president and the White House have failed New York City on this issue, the mayor said, taking direct aim at U.S. President Joe Biden even though, asthe Democratic mayor of the largest city in the country, Adams was supposed to be one of his staunchest allies.
Since late spring, there has been an intense debate about the Biden administrations decision to end a Trump-era border enforcement policy known as Title 42. Under the authority of a COVID-19 public health emergency, the three-year-old order had allowed immediate expulsions of unlawful border crossers, and when the administration ended it, on May 11, many commentators predicted a huge migrant surge. But as Adamss combative intervention signaled weeks earlier, the southwest border had reached a crisis point long before Bidens latest policy shift. In fiscal 2022when the Title 42 order was in effectU.S. Border Patrol agents made 2.2 million stops of migrants trying to cross the border, an all-time record. Probably even more significant is another all-time high: between March 2021 and November 2022 more than 1.1 million migrants were released by U.S. border authorities into the United States, most of them with temporary permissions to stay and notices to appear in immigration courts on dates far in the future.
This record wave has had new and far-reaching impacts. In April 2022, Greg Abbott, the Republican governor of Texas, started sending thousands of migrants on buses to New York and other cities in blue states, in a political gambit to force Democratic leaders to confront the large numbers. By September, the surge in asylum seekers had moved Adams and other officials such as Washington, D.C., Mayor Muriel Bowser and Illinois Governor Jay Pritzker to declare a state of emergency. Meanwhile, a humanitarian disaster was unfolding on the Mexican side of the border. This spring in the cities of Matamoros and Reynosa, across from the Rio Grande Valley in Texas, more than 20,000 migrants, anxiously awaiting a chance to cross, were sleeping on the ground in squalid tent camps with open sewers, where many of them were preyed upon by Mexican drug cartel enforcers with extortion and even sexual assault. The disarray led to horror in Ciudad Juarez on March 27, when a fire in a Mexican migrant detention facility killed 40 people who were trapped inside, as security guards walked away.
In part, the influx has been fueled by extraordinary external pressures. Over the past few years, a toxic combination of political instability, criminal violence, and the punishing economic aftereffects of the COVID-19 pandemic has unleashed the highest levels of migrationin the Western Hemisphere since World War II. The movements began a decade ago with families fleeing rapacious gangs and hopeless poverty in the northern countries of Central America. In more recent years, hundreds of thousands of migrants have also come to the U.S. border from Cuba, Haiti, Nicaragua, and Venezuela, countries where misrule and repression have driven people out and where the United States has few options for mitigating the underlying causes. Following newly forged migrant trails from South America, people from Brazil, Colombia, Ecuador, and Peru have also started to arrive in numbers not seen before.
But the scale of the migration does not alone explain the dysfunction at the border. At the core of the crisis, from the borderlands to the American interior, is the U.S. asylum system. It was created nearly half a century ago to assess foreigners claims of persecution case by case. Over the past decade, however, the asylum system has become something else: for lack of other legal avenues, it has turned into the main channel for mass immigration across the southwest border, a function it was never designed to serve. By the end of 2022, almost 800,000 asylum cases were awaiting adjudication in the immigration courts, according to the Transactional Records Access Clearinghouse, a data research center; these were part of huge backlogs of all kinds of immigration cases now swamping the courts. The average asylum claim took more than four years to decide. Yet in fiscal 2022 the courts nationwide granted asylum in only 22,311 cases; a larger number of the cases decided last year, more than 26,000, were denied. Since there have been no clear-cut procedures for deporting asylum seekers whose claims are rejected, many of those people and their familiesalong with tens of thousands of asylum seekers denied in previous yearshave quietly joined the millions of undocumented immigrants already in the country.
The asylum system is failing at every step of the way. It has failed to provide orderly pathways for migrants at the border. It does not provide timely protection for people escaping from truly threatening situations in their home countries; nor does it give timely denials to migrants who are fleeing poverty and cannot meet the exacting legal definition of persecution. And now, as New York, Chicago, andother cities struggle with the rising costs of supporting the newcomers, they confront another failure: the system prevents asylum seekers from going to work to contribute to the U.S. economy. Most migrants are eager to support themselves and their families, and they are arriving at a time when American employers face critical labor shortages in many industries in which immigrants have historically thrived: farm and dairy work, food processing, landscaping, construction, nursing, home health care, childcare. But because of statutory restrictions and bureaucratic backlogs, asylum seekers must now wait a year or more to receive legal work permits.
In place of Title 42, in May the Biden administration launched an ambitious new strategy for managing the border. The goal is to short-circuit irregular migration by offering new lawful pathways to people before they reach the United States and imposing punitive consequences for those who fail to follow them. Under a new rule, migrants will not be eligible for asylum unless they either use a government mobile app to make an appointment to present themselves at an official land port of entry or can show that they have already been denied asylum in a third country they passed through on their way to the United States. Known as a transit ban, the latter measure is similar to one attempted by U.S. President Donald Trump, and in practice will shut down access to asylum across much of the southwest border. Most unauthorized crossers will be detained and swiftly deported to their home countries. In early May, Biden also ordered 1,500 additional active-duty troops to the border.
Despite these tough measures, Bidens approach has won little support. Republican lawmakers have accused the president of intentionally opening the border to gang lords, fentanyl traffickers, and Chinese spies and claim that the administrations strategy will only encourage more illegal migration. For their part, immigrant rights groups and Democrats in Washington have assailed the new measures as a breach of fundamental legal rights and American moral values. Almost completely lost in this debate, however, is the underlying broken asylum system. After years of stalemate in Washington on immigration reform, the asylum bureaucracy has become its own de facto immigration system. It no longer serves people escaping danger that it was designed to protect; nor does it bring any order to the challenges of securing the border and integrating newcomers into the U.S. economy.
The origins of asylum date back to the Refugee Act of 1980. Signed into law by the Carter administration, the legislation was adopted in part to make amends for the countrys shameful refusal to accept Jewish refugees during the Holocaust. Washington was focused at the time on bringing in hundreds of thousands of refugees from Vietnam who had fled the communist government after the U.S. defeat in the war. With those wartime political refugees in mind, the crafters of the law incorporated the legal definition of persecution from the 1951 Refugee Convention: protection can be granted to someone who has a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.
The law creates two distinct routes to protection: refugee status and asylum. Refugees are people uprooted from their countries who meet the legal definition of persecution and apply for protection when they are outside the United States. They are generally screened and registered as refugees by the United Nations and then rigorously vetted again by the State Department before they travel to the United States. The White House sets an annual goal for refugee admissions, and the federal government and humanitarian organizations support their resettlement. For decades, refugees enjoyed bipartisan support, until Trump slashed the annual quota to its lowest level on record, effectively gutting the program. For each of the last two years, Biden has lifted the quota to 125,000, the highest U.S. target since the 1990s, but bureaucratic hurdles have kept the actual number of resettled refugees far lower.
Asylum, on the other hand, is the route for people who are already in the United Stateseven if only by a few feet over the border. The convoluted bureaucracies that have grown up around asylum offer two ways to win protection. Foreign nationals who have already been living in the country and are afraid to go home can present their case to asylum officers from an agency in the Department of Homeland Security, who assess their stories in probing but not adversarial interviews. Migrants who reach U.S. soil by crossing a border without papers, however, have another process entirely, centered on the immigration courts. They are subject to fast-track deportation, but they can initiate an asylum claim to fight the removal. In this process, a DHS asylum officer makes a quick assessment of the migrants story. If the officer finds that the expression of fear is not credible, the migrant can appeal to an immigration judge,but most of those cases end in a denial and lead to deportation. If the officer finds the fear is credibleas happened in the vast majority of cases over the last decadethe case goes to immigration court. Government prosecutors can challenge the migrants account, and a judge decides whether to grant asylum or issue a final deportation order, among other options. Such decisions can be appealed, in laborious proceedings, through two higher levels of judges.
Asylum seekers on the Mexican side of a U.S. border fence near San Diego, California, May 2023
The immense logjam of cases has mainly resulted from the funnel-like design of the system. To be consistent with international refugee law, Congress has written the statute to leave a very wide opening at the border for people coming in desperation. Migrants can ask for asylum at any point along the border, whether or not at a designated port of arrival and regardless of whether they have any legal entry documents. But from that point on, asylum seekers pass into a very small chute: they must show in court that they fit the strict parameters of the U.S. persecution standard in lengthy proceedings based on complicated, constantly evolving laws. Without a competent lawyer, the final narrow passage is almost impossible to navigate, and in immigration court there is no right to an attorney provided by the government.
The rigid asylum bureaucracy has failed to adapt to the huge shifts in the populations coming to the southern border. For decades, most unauthorized border crossers were Mexicans who were heading to fields and factories in the United States, often seasonally; as labor migrants, they rarely sought asylum. But after 2010, Mexican migration subsided, and families from the Northern Triangle countries of Central America began to arrive. They were not political or religious refugees. People from El Salvador and Honduras were running from vicious gangs that were waging turf wars, controlling swaths of territory, recruiting teenagers, and imposing their dominion with sexual violence and femicide. Guatemalans, including many indigenous Mayas, were fleeing extreme poverty and racist subjugation. Families crossed the Rio Grande in south Texas, but instead of trying to elude the Border Patrol, as the Mexicans had done, they sought out its agents to ask for protection. Advocates took up their cases in the courts, litigating to expand the definition of persecution to include victims of gang crimes, sexual assault, and domestic abuse. During this period, the backlog of asylum cases pending in U.S. courts rose nearly sixfold.
With many more migrants seeking asylum, smugglers in Mexico gained new sway at the border. Earlier, Mexican migrant workers hadpaid human smugglers to provide services: to guide them through remote terrain, to help evade the Border Patrol, and to arrange transportation to their destinations. With the arrival of families from Central America, however, narcotics cartels recognized the low-risk, high-profit potential of human smuggling, especially along the more than 1,200 miles of Texas border that runs down the middle of the Rio Grande. Rather than acting as facilitators, these traffickers became gatekeepers: they demanded $5,000 to $20,000 for unsafe passage across Mexico; then, at the border, they kidnapped the migrants and held them for additional ransom in filthy stash houses on the Mexican side. For crossings, the smugglers put the migrants on rafts or directed them to shallow fords in the river. After collecting their fees, the smugglers watched from the Mexican riverbank without ever having to risk arrest in the United States.
Now that migrants are using mobile phones and social media to guide their journeys, smugglers, always intent on increasing their profits, have become increasingly effective at controlling the information that migrants receive. Even as Biden administration officials broadcast warnings that the border is not open, smugglers send the message to migrants that the chances of making it into the United States are good. Everything south of the border, everything, is controlled bythe cartels, John Modlin, the Border Patrol chief in Tucson, Arizona, told a congressional hearing in February. No one crosses the border without going through the cartels.
Successive administrations have tried different strategies to address the rising flows. Faced with the surge from Central America, U.S. President Barack Obama opted, starting in early 2014, for deterrence. He sped up deportations, stepped up criminal prosecutions of migrants who returned after being deported, and opened new facilities to detain migrant women with their children. Obama hoped that aggressive border enforcement would win him Republican support for broader immigration reform. The political calculus never succeeded, but the border became difficult and expensive for families to cross, and by 2015 Border Patrol apprehensions fell to about 330,000, the lowest level in four decades.
Trump took office heralding his border wall, and he almost succeeded in his goal of shutting down asylum completely. He slowed the operations of the asylum office by adding cumbersome technicalities, causing cases to pile up in ever-lengthening backlogs. He drastically limited asylum access at the land ports of entry; made migrants wait in Mexico for their U.S. immigration court hearings; reversed hard-won protections for women and victims of gang violence; and modified the rules to make it even harder to win asylum in court. Trump separated migrant children from their parents, a policy of calculated cruelty that public outrage forced him to abandon. Yet despite these hostile actions, unauthorized border crossings continued to increase, with the Border Patrol recording more than 859,000 apprehensions in 2019. Only the onset of COVID-19, which closed borders and halted travel everywhere, brought a sharp decline in illegal entries for a time.
But the pandemic also enabled Trump to implement a much more radical enforcement change. By activating the public health emergency order known as Title 42, the administration gave the Border Patrol authority to immediately expel border crossers back to Mexico, without allowing them to ask for asylum. Eventually, the order transformed the migration ecosystembut in a very different way than Trump intended. The rapid expulsions were carried out with no formal deportation, creating no immigration record. Savvy migrants quickly realized that if they were caught, they would be expelled with no negative consequencesand could soon try to cross again. Over time, rather than slowing the influx, Title 42 attracted new migrant streams to the border. Mexicans started coming again, accounting for six in ten expulsions in the first two years of the policy, according to the Pew Research Center.
The revolving door of Title 42 also coincided with the rise of new flows from four countries that were in disastrous decline. As the pandemics economic damage took hold after 2020, Cubans despairing of progress under their countrys decaying communist regime embarked on the largest exodus from the island since the 1980s. More than seven million Venezuelans fled their country as the catastrophic mismanagement of socialist President Nicolas Maduro left hospitals without medicines and citizens scrounging for food. Many Venezuelans had settled initially in Brazil, Colombia, and other South American countries, but pandemic hardships drove tens of thousands of them to pick up and move again, making the nightmarish trek through the Darien Gapa muddy, snake-infested jungle between Colombia and Panamaon their way to the United States. In Nicaragua, the economic push factors were compounded by President Daniel Ortegas crackdowns on street protests and political opponents as he tightened his grip on power. And in Haiti, the 2021 assassination of President Jovenel Moise and the breakdown of the state that followed left entire neighborhoods of Port-au-Prince in the hands of rival armed gangs. These four countries presented a special challenge to the Biden administration as it struggled to deal with their migratory flows.
Biden came to office promising a more humane approach to border security, a welcoming message that resonated across the hemisphere during his first months in the White House. Biden scaled back construction of Trumps costly border wall. He prohibited family separation and created a task force to reunite the families Trump had separated. He ended the detention of families with children. In practice, however, Bidens border enforcement has not been that different from Trumps. His administration has continued to limit asylum access at the land ports of entry. Biden tried to cancel the program that made migrants wait in Mexico for U.S. immigration court hearings, but its termination was delayed by federal courts until August 2022. And with conflicting federal court decisions about thelegality of Title 42, the rapid expulsions continued until May. Under Biden, more than 1.4 million migrants were expelled or formally deported in fiscal 2022.
Despite these policies, within months after Biden took office the border was overwhelmed, as destitute migrants were drawn by the Title 42 churn and the magnet of a rapidly recovering economy in the United States. But border officials were unusually hamstrung in their ability to constrain the new flows. In fiscal 2022, Border Patrol agents made about 571,000 stops of people from Cuba, Nicaragua, and Venezuelaexceeding for the first time the stops of migrants from the Northern Triangle countries, according to an analysis by the Migration Policy Institute. But because of the lack of diplomatic cooperation between the United States and those governments, U.S. authorities could not deport Cubans,Nicaraguans, or Venezuelans back home. During 2022, Mexico also refused to accept most Title 42 expulsions of people from those countries. Deportations to Haiti, meanwhile, were difficult for different reasons. In September 2021, thousands of Haitians had arrived all at once in Del Rio, Texas, an episode that became notorious when Border Patrol agents on horseback were photographed rousting them back into the Rio Grande. After many of those Haitians were sent back to their country, the outcry from Black activists and lawmakers pressured the administration to curtail deportations of Haitians.
Further complicating the situation, smugglers were steering all these migrants to cross at smaller cities like Del Rio and Eagle Pass in Texas and Yuma, Arizona, where frontline detention facilities were limited. To avoid dangerous overcrowding in Border Patrol cells, U.S. officials had little choice but to release migrants into the United States, sometimes thousands in a single day. They were granted a temporary permission known as a parole, and some were given ankle bracelets or mobile GPS tracking apps for electronic monitoring.They were given paper notices to check in with Immigration and Customs Enforcement or to show up in immigration courts at their destination, usually on dates in the distant future. Most of these migrants were eager to move on from the borderlands, and in addition to Governor Abbotts political busing ploy, humanitarian groups, ina spirit of assistance, were also putting them on buses to Chicago, Denver, New York, Washington, D.C., and other cities.
Scrambling to curb the flows, in October 2022, the DHS started a novel parole program for Venezuelans, allowing them to come by air to stay and work for two years if they applied from home and identified a financial sponsor in the United States. Venezuelans who crossed the border without documents were barred from the parole and expelled to Mexico. In January, the parole program was expanded to Cuba, Haiti, and Nicaragua. The administration agreed to accept a total of 30,000 people a month from the four countries, opening an expansive new legal portal. The Mexican government agreed to cooperate, accepting up to 30,000 expulsions each month of citizens from those countries who had crossed the border unlawfully.The Biden administration also started testing its mobile app, called CBP One, which allows migrants to use their phones, before they reach the United States, to schedule appointments at land ports of entry, including Brownsville and El Paso in Texas, Nogales in Arizona, and San Diego, where they can arrive and ask to enter.
The initial effect of the parole programs was startling. From December 2022 through March 2023, Border Patrol encounters of migrants from the four countries declined 90 percent, while more than 100,000 of their citizens came legally to the United States. But on the Mexican side of the border, frustration continued to build. For the thousands of migrants jammed into shelters and tent squats, each morning was a frantic hustle to try to score one of no more than 1,000 appointments available each day through the CBP One app. The app had trouble recognizing Black faces; it gave appointments to parents but not their children. In Brownsville, smugglers claimed they had figured out how to hack into the system and began selling appointments for as much as $1,000. Migrants who were acutely sick or in danger from cartel thugs needed sophisticated help from lawyers to get priority. But the end of Title 42 has deepened a dilemma for legal aid and humanitarian groups at the border and across the country. Rebuking Bidens plan, they have called for full restoration of asylum along the border. But even before the order was lifted, their capacities to provide the legal counsel, shelter, and social services that migrants would need to succeed in the system were already overwhelmed. While migrants kept coming, aid providers in receiving cities were intensely frustrated that they did not have anywhere near enough resources to assist them.
On the ground floor of New Yorks gritty Port Authority Bus Terminal, day after day, dozens of migrants disembarked to be registered with city agencies, offered health services, and sent to emergency shelters. Mayor Adams said New York was determined to set an example of welcome, but after trimming $1.6 billion from other city services to pay the costs, he also planned to bus some asylum seekers to communities upstate. Governor Kathy Hochul allocated $1 billion in the state budget to help the city, and in May the federal government finally came up with $30 million for New York.
The real gateway in New York City is at the immigration courts downtown. At four each morning, long lines form of people appearing for hearings. Under the Biden administration, the courts have worked to reduce the staggering backlogs. Dozens of judges have been hired, bringing the number to more than 600 nationwide. In the New York courts, improved technology enables lawyers to beam into hearings remotely, allowing them to represent more people, and with the help of city legal aid programs, asylum seekers have a better chance of getting legal counsel than just about anywhere else in the country. Still, for migrants arriving in the last year, at the current pace in the clogged courts, it will be at least three years before their claims will get a decision from a judge.
Many people in the new cohort may have strong cases of persecution because they clashed with autocratic governments or were victims of gangs or sexual abuse. But many, perhaps the majority, are refugees from poverty who will struggle to convince judges that they qualify. Consider the case of Alexis J., a 42-year-old Venezuelan who was camped in March at a cruise terminal in Brooklyn that the city had taken over for a barracks for migrant men. His reasons for fleeing were simple and basic. You cant live in Venezuela anymore, he said. You go out to look for food for your children and you come home with nothing. How he would turn that compelling human motivation into a case of persecution was unclear. In New York, one of the most asylum-friendly jurisdictions in the country, just one in three asylum claims was granted in 2022; for all U.S. immigration courts the median was one in ten.
What Alexis J. and other asylum seekers want most urgently is employment. But by law, migrants must wait at least 180 days after they file an asylum application to receive a work permit. Because of processing backlogs at the DHS, it will likely be more than a yearbefore recent asylum seekers will be legally authorized to work. Many are not waiting around. They are picking up off-the-books jobs as delivery cyclists, office cleaners, construction hands, and farm laborers, already becoming undocumented workers. They dont want our free shelter. They dont want free food, Adams said in exasperation after visiting migrant shelters. Theres only one thing they ask for. Theyre saying, Can we work?
In the initial weeks after Title 42 ended, the new Biden restrictions seemed to be working better than expected. Although the administration had been bracing to encounter as many as 10,000 migrants a day, the numbers in May were lower than they had been before the order was lifted. To enforce the new asylum rule, more than 1,000 DHS asylum officers were sent to interview border crossers while they were still detained in U.S. facilities, to see whether they met the requirementsto have an appointment with the CBP One app or show an asylum denial by a transit countryand if not, to line them up for deportation. The United States has been flying dozens of deportation flights per week. Officials said they were fixing flaws in the app to make appointments easier to obtain, and on many days more than 1,000 migrants were able to come in legally through the ports of entry. But most unauthorized border crossers faced deportation, a devastating end for those who had initiated their journeys in desperate fear. A five-year ban on reentry was being applied, and those who violated it could face criminal prosecution.
Bidens tougher border enforcement is the centerpiece of a broader strategy that aims to reshape access to protection across the Western Hemisphere. In April, Homeland Security Secretary Alejandro Mayorkas and Secretary of State Antony Blinken announced the creation of two regional processing centers, in Colombia and Guatemala, where U.S. refugee officers will work alongside UN officials to screen people to come to the United States as refugees, or through other family or labor migration programs. Building on the Los Angeles Declaration, a migration cooperation agreement joined by 21 countries at the Summit of the Americas in June 2022, the administration hopes to establish more than 100 centers throughout the hemisphere. Aside from the existing parole programs, new family reunification programs were added for Colombia, El Salvador, Guatemala, and Honduras.Biden committed to doubling the number of refugees from the Western Hemisphere this year. But administration officials acknowledge that this hemispheric configuration will take time to put in place. In the meantime, the main impact of Bidens plan is to close the opening for asylum along the border.
An asylum seeker in New York, May 2023
The presidents efforts have gained him little political favor. House Republicans, scorning Bidens measures, passed a border security bill that includes only draconian enforcement, although it has virtually no chance of passage in the Democratic-controlled Senate. The American Civil Liberties Union, which litigated successfully to halt Trumps transit ban, filed a similar lawsuit against Bidens rule. A Trump-appointed federal judge in Florida blocked the administration from using certain parole programs to release asylum seekers, a ruling that could seriously hamper the administrations approach. Because Bidens policies were implemented by executive action without congressional approval, they are always susceptible to challenges from the left and the right in the courts.
In all the polarized furor, there has been little discussion of the need for reform of the asylum system itself. But outside Washington, in places where migrants have landed, there is growing bipartisan recognition that it needs to be fixed. City and state officials and humanitarian and legal rights organizations are calling on Biden to reorganize asylum, drawing on the model of the refugee program, to provide orderly reception and faster screening of migrants and federal support for their resettlement. Border city officials and groups want more access to asylum at the ports of entry. Instead of forcing migrants through rushed interviews in detention facilities, they say, the administration should set up reception centers where border authorities, legal aid groups, and resettlement organizations could combine forces, drawing on cooperation that already exists in many border cities, to screen and triage migrants and organize assistance for those who qualify. Legal experts propose giving DHS asylum officers the power to make decisions on claims, bringing faster resolutions and reducing the number of cases going to the courts; the DHS experimented with this idea in a pilot program last year. Advocates want funding for legal representation and for case management programs that have a record of ensuring that asylum seekers comply with court dates.
City and state officials are also pushing the administration to let asylum seekers work. In March, Adams and more than 50 other mayors called on Biden to speed up work permits for migrants with pending claims. Two Republican governors, Eric Holcomb of Indiana and Spencer Cox of Utah, proposed a program to allow states to sponsor asylum seekers and other immigrants based on labor needs. In their two states combined, they said, there were 327,000 job openings in farm and dairy work, health care, and low-wage service industries. Senator Robert Menendez, the chairman of the Senate Foreign Relations Committee, and other Democrats have made similar proposals, calling on Biden to use his authorities to create a program for states to bring in migrant workers.
Bidens strategy may yet succeed in reducing unlawful crossings. But in order to fortify border control in an age of mass migration, the president has abandoned a humanitarian principleto protect those seeking refugethat is enshrined in U.S. and international law and core to American values. Moreover, his policies will not end the underlying crisis. The reality is that officials in Washington will have to keep improvising at the border until the failings of asylum are reformed, and for that, Congress must act. Lawmakers will have to update and clarify the persecution standard to encompass victims of organized criminal violence, sexual abuse, and other nonpolitical violations; simplify the screening process; and specify the consequences for migrants whose claims are denied. More urgently, lawmakers must act to restore asylum to its purpose by expanding alternative legal avenues for labor and family immigration.
The prospects for solutions from Congress in the coming electoral year are dim, but for the country, the stakes become higher every day. According to the State Department, more than 20 million people in the Western Hemisphere are displaced from their homes. If new streams of migrants head for the United States, the border could become even more dangerous and disorderly, wearing out the generosity of border-state Americans and sending more asylum seekers to overburdened cities such as New York. Without reforms, the United States will perpetuate a system that draws more people into irregular migration, does not serve the American economy, and could leave hundreds of thousands of immigrants in the country in perpetual legal limbo.
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The Real Origins of the Border Crisis - Foreign Affairs Magazine