The Border Crisis and the Right to Seek Asylum

Abstract

Control over the U.S. southern border has become one of the most contentious issues in American politics. Any migrant who crosses that border into the United States has a statutory right to seek asylum. But the process for adjudicating asylum claims in the nation’s immigration courts has essentially collapsed, with waiting times for hearings averaging about four years. During those years, an asylum applicant can remain in the United States with a right to work, and many politicians and commentators believe that migrants are therefore incentivized to cross the border either by rafting across the Rio Grande or hiking through remote deserts, intending to turn themselves in to border agents and start the long process of immigration court adjudication. Elected officials of both parties have tried since 1996, mostly unsuccessfully, to deter the influx of migrants by imposing procedural and substantive limitations on asylum, some of which were invalidated by courts or repealed by subsequent administrations.

Migration over the border reached record levels in 2023 and became a major political liability for the Biden administration. The House of Representatives passed a bill that would have severely limited the availability of asylum. The Biden administration promulgated new rules, currently being challenged in federal court, that barred asylum for migrants who crossed the southern border without permission and imposed a more restrictive standard for assessing “credible fear” in the summary process known as “expedited removal.”

One particular Congressional effort to reform the asylum adjudication system deserves special attention.  A Republican, a Democratic and an independent senator met in secret for many weeks and drafted a “bipartisan border bill” that created a new adjudication procedure for migrants apprehended near the southern border. The bill would have replaced cumbersome immigration court adjudication with more streamlined decision-making by asylum officers. The bill failed when the Republican party’s putative nominee, former President Donald Trump, decided that he would prefer that the nation suffer a border crisis at least through election day so that he could blame President Biden for it.  He told his party’s senators to kill the bill and they quickly fell in line. The bill received 50 votes but would have needed 60 to pass. Nevertheless, the immigration court adjudication system requires a radical reform, and the new procedure outlined in the Senate’s bill is a reasonable starting point for fixing a broken system. Although flawed in some respects, it deserves further consideration.

After a brief review of asylum adjudication before 2024, this article evaluates all three recent schemes for reforming the adjudication of migrants’ claims: a bill passed by the House of Representatives that is more of a political statement than a serious plan, the Biden administration’s ban on asylum for most migrants encountered near the southern border, and the senators’ failed compromise bill. It concludes that the while the new adjudication system in the senators’ compromise bill is the best of the three plans it has several critical problems. These include too-short timelines for migrants to try to obtain legal representation and in which they must collect evidence to prove their claims of threatened persecution, and a poorly conceived plan for migrants’ appeals of negative asylum decisions.  The article concludes with several recommendations for turning the senators’ bill into a sound reform of the asylum adjudication system.