Neither Can Live While the Other Survives: The Intertwined Fates of DACA and Asylum Reform
We have the opportunity to do something good.
Children are paying for choices they did not make. In the words of President Obama:
They were brought to this country by their parents, sometimes even as infants. They may not know a country besides ours. They may not even know a language besides English. They often have no idea they’re undocumented until they apply for a job, or college, or a driver’s license … Whatever concerns or complaints Americans may have about immigration in general, we shouldn’t threaten the future of this group of young people who are here through no fault of their own, who pose no threat, who are not taking away anything from the rest of us … Kicking them out won’t lower the unemployment rate, or lighten anyone’s taxes, or raise anybody’s wages.
87 percent of Americans believe that Dreamers should be allowed to stay in the United States provided they meet certain requirements.[1]
Despite overwhelming public support, why have we been unable to pass any sort of bipartisan protections or create a pathway to lawful permanent residence for them?
The answer is simple. Dreamers are often a function of bad asylum laws.
Our broken asylum system has incentivized human trafficking and the use of children as golden tickets into the United States. If we do not reform our asylum laws, we will be forced to pass DACA protections over and over again.
Simply put — if our bad laws are often the reason Dreamers are here, we have an obligation to protect them. But we also have an obligation to change those laws. Support for DACA, but not asylum reform — or asylum reform, but not DACA — is merely disingenuous partisan maneuvering. We use children as clubs to beat our political opponents, but enact no real change. They are the ones that pay the price.
DACA and asylum reform find themselves on opposite ends of the political spectrum — but that is a gross misreading of the issue. They are inherently intertwined and there is a clear bipartisan path forward.
As the famous Harry Potter prophecy goes, neither can live while the other survives.
The time is now. Marry the Dream and Promise Act of 2019 to Lindsey Graham’s asylum legislation. We have an opportunity to enact real and sustainable reform that will positively impact the country as a whole.
Let’s take a dive into each of the issues.
The asylum system is broken, and our laws have an immoral consequence — they have effectively created an open border, incentivizing a dangerous journey and the smuggling and trafficking of children.
“[A] genuine crisis is building at the southern border as the perverse incentives of U.S. asylum law invite a surge of migrants that is overwhelming border security.” A broken asylum system all but guarantees entry if you bring children.’ “More than 76,000 immigrants illegally crossed the border in February and about half came with families, a 10-fold increase over the past two years. Border apprehensions in March probably exceeded 100,000, the highest monthly total in a decade (WSJ Editorial Board, 2019).” [2]
How are asylum laws supposed to work?
‘First, an asylum applicant must establish that he or she fears persecution in their home country. Second, the applicant must prove that he or she would be persecuted on account of one of five protected grounds: race, religion, nationality, political opinion, or particular social group (Asylum in the United States, n.d.).’[3] Fear of gang violence, economic hardship, or just wanting a better job doesn’t qualify. This is in accordance with international law. ‘Migrants who aren’t being persecuted aren’t eligible for asylum.’ When an immigrant arrives at the border, they make their case to a Customs and Border Protection official. There is an attempt to establish credible and reasonable fear of persecution through the immigration courts, and an asylum decision will ultimately be made.[4]
But the system is broken.
If an immigrant arrives at the border, and an CBP official decides they have reasonably established credible fear, they are referred to the immigration courts for asylum hearings.
If an immigrant arrives at the border, and an CBP official decides they have not reasonably established credible fear, they can appeal the negative decision and are still referred to the immigration courts for asylum hearings.
“[F]ederal Judge Emmet Sullivan last year blocked the Administration from imposing asylum conditions. Last month the Ninth Circuit Court of Appeals extended habeas corpus to asylum claimants, which means even those who fail the initial screening will have recourse in federal court. Almost anyone who claims asylum will now be able to avoid immediate deportation (WSJ Editorial Board, 2019).” [5]
But the courts reached capacity a long time ago.
“Because of this huge court backlog, more than 809,000 immigrants are waiting for their asylum claims to be heard in immigration court. That’s enough people to create the 18th largest city in the U.S. (Girdusky, 2019)”[6]
But what happens while they wait?
“Due to a shortage of detention beds, they are usually released and allowed to work in the U.S. while awaiting another hearing to determine if they qualify for asylum. The average hearing wait time is two years. Many disappear and don’t report for their hearing (WSJ Editorial Board, 2019).” [7]
What you’re left with is an essentially open border — and a perverse incentive to make a deadly journey.
But it’s so much worse than that. Sometimes you do have to wait in a detention center until your hearing date. The solution — bring a child.
“These days, thousands of people a day simply walk up to the border and surrender…The smugglers have told them they will be quickly released, as long as they bring a child, and that they will be allowed to remain in the United States for years while they pursue their asylum cases (Shear, NYT, 2019).”[8]
“[B]ecause laws and court rulings aimed at protecting children prohibit jailing young people for more than 20 days, families are often simply released. They are dropped off at downtown bus stations in places like Brownsville, Tex., where dozens last week sat on gray metal benches, most without money or even laces on their shoes, heading for destinations across the United States. (Shear, NYT, 2019).”[9].
Remember the family separations at the border?
A 1997 court ruling known as the ‘Flores settlement’ prohibits the U.S. government from detaining migrant children for longer than 20 days.
“This ruling means the government effectively has two choices when a family crosses the border: detain the parents and release the children to foster homes or distant relatives, thus splitting up families; or release the entire family together, knowing that many won’t show up for their court hearings (Girdusky, 2019)”[10].
“As many as 27,000 children are expected to cross the border and enter the immigration enforcement system in April alone. (Shear, NYT, 2019).”[11].
We have incentivized the use of children as pawns for entry into the United States, and there are consequences. As reported by the WSJ, “U.S. Border agents have identified 2,400 “false families” over the last year as smugglers pair adults with unrelated children.”[12] These are only the one’s we’ve caught.
Should we be separating families? No. Should we be incentivizing human trafficking and the use of children as golden tickets into the United States? No.
Should we have laws on the books that force this choice? No. Inaction is not an option.
We have lost control at the border. Concessions must be made. We have a moral responsibility to overhaul our asylum system.
We must seek to limit asylum eligibility to safer legal ports of entry, but only if we invest in the humanitarian infrastructure necessary to support those waiting, and in a system with the capacity to process these claims within a reasonable timeframe. Flores must be revisited, we must increase the number of immigration judges, a portion of asylum requests should be made through local consulates and embassies, and Mexico must become a partner in ensuring the safety of those making the journey and waiting for their claims to be processed. They have responsibilities to their citizens as well and must be held accountable.
Asylum is to protect those persecuted on account of their race, religion, nationality, political opinion, or affiliation with a particular social group — not poverty. In the same timeframe that the murder rate dropped in Honduras and El Salvador by 50% — to a rate lower than Baltimore — the asylum requests from those countries increased by 900%. There was an inverse correlation between violence and requests for asylum. Ultimately, 80% of these requests were denied. But as you now understand, all you need is a request to get in the door.[13]
This is a hard truth. Destitute circumstance doesn’t inherently qualify one for asylum. We must strive to do our best, but there is violence and incredible economic hardship on both sides of the border.
In 2017, there were approximately 554,000 homeless people sleeping on the streets in the United States on any given night; 58,000 were veterans.[14] In 2017, 4.2 million children experienced homelessness in the United States.[15]According to a 2016 study by the Urban Institute, teenagers in low income communities are often forced to join gangs, save school lunches, sell drugs or exchange sexual favors because they cannot afford food (Poverty in the United States, n.d. para. 6)’ [16]
As long as we are home to homeless veterans and hungry children, conversation must be had about how we allocate a finite number of resources. As we attempt to resolve our competing moral obligations, we must endeavor to reserve asylum first for those being persecuted.
As you know understand, our asylum system is broken and requires reform. We have essentially created an open border. We have incentivized the use of children as pawns for entry into the United States. For that they pay a great price.
The journey here is incredibly dangerous.
‘The dangers increased as they drew closer to Veracruz. At certain stations, gangs boarded the trains and demanded a ‘toll.’ “The rate was $100 per station,” Johnny told me and my colleagues at Amnesty International. “They threatened us. They said they would hold us until we could call a relative to arrange to pay. If you couldn’t pay, they would throw you off the roof.” (Shetty, Amnesty International’s Secretary General)’
Smugglers sometimes pretend to offer reduced fees to women and child migrants and then sexually assault or rape them as a form of substitute “payment”. Human traffickers masquerading as coyotes often use false promises of guaranteed jobs to lure migrants and will sometimes kidnap women and children along the journey, either for ransom from their families, or to be sold in the U.S. into servitude or prostitution. Many unaccompanied children also make the crossing from Mexico to the U.S. Unaccompanied minors are sometimes sold into prostitution by the trafficker, and their families are falsely led to believe that they died during transit. (Ugarte, 2004)[17] (Human Trafficking in Mexico, n.d.
Six in ten migrant women and girls are raped on the journey.[18] “Because of the increase in violence, at ICE when we have families with children, we have to give every girl a pregnancy test over 10. This is not a safe journey (Homeland Security Secretary Kirstjen Nielsen).” In 2017, Doctors Without Borders found that ’68 percent of the migrant and refugee populations as a whole reported being victims of violence.’[19] It’s not just the cartels and gangs they have to fear; abuse and extortion are rampant among police and immigration officials as well. The risk of grave illness or infectious disease is high — “The majority of our agents get sick. Infectious disease is everywhere (Cabrera).”[20] 294 migrants died making the journey in 2017.[21]
The journey here is dangerous.
Yet our bad laws are incentivizing it. We have an obligation to fix these laws and overhaul our asylum infrastructure. We also have an obligation to the children who are the victims of our bad policy.
Deferred Action for Childhood Arrivals (DACA) participants should be given a one-time path to legal permanent residence, through a congressionally debated mechanism such as the Dream and Promise Act of 2019.
It bears repeating.
Children are paying for choices they did not make. In the words of President Obama:
They were brought to this country by their parents, sometimes even as infants. They may not know a country besides ours. They may not even know a language besides English. They often have no idea they’re undocumented until they apply for a job, or college, or a driver’s license … Whatever concerns or complaints Americans may have about immigration in general, we shouldn’t threaten the future of this group of young people who are here through no fault of their own, who pose no threat, who are not taking away anything from the rest of us … Kicking them out won’t lower the unemployment rate, or lighten anyone’s taxes, or raise anybody’s wages.
There were concerns surrounding the unilateral executive action taken with DACA — consensus must come from Congress, but that is not on trial here. These are children who were brought into this country by no fault of their own — it is often all they know. Eligibility requirements are strict.
“To be eligible [for DACA], recipients must be present in the United States unlawfully after being brought in as children before their 16th birthday and prior to June 2007, be currently in school, a high school graduate or be honorably discharged from the military, be under the age of 31 as of June 15, 2012, and not have been convicted of a felony, significant misdemeanor or three other misdemeanors, or otherwise pose a threat to national security (Deferred Action for Childhood Arrivals).”[22]
They broke the law, but they are also victims of it. Intent matters. They are your friends, classmates, co-workers, and neighbors. They have become part of the fabric of our society — yet we tell them they do not belong. This is an issue of dignity.
They are hard-working, law-abiding members of our communities.[23] They regularly pursue higher education and are net positive contributors to our economy; ’91 percent of DACA registrants are employed, and 5 percent have launched their own businesses, compared to 3.1 percent of all Americans’.[24]
“The Immigrant Legal Resource Center estimated that deporting DACA-eligible individuals would reduce Social Security and Medicare tax revenue by $24.6 billion over a decade. U.S. public school system has already invested in educating these individuals, and they are at the point at which they can start contributing to the U.S. economy and public coffers; deporting them or increasing the likelihood that they be deported is economically counterproductive. A 2017 study by the Center for American Progress estimated that the loss of all DACA-eligible workers would reduce U.S. GDP by $433 billion over the next 10 years (Deferred Action for Childhood Arrivals).”[25]
They are proud Americans, and will contribute more than they receive. Continuing DACA protections — allowing them to work and pursue degrees without fear of deportation — is a basic obligation to those who have given so much and done no wrong.
We have a Kantian imperfect duty to provide aid to those when we can. Here we can. But we can do better than DACA. We can provide them with a path to citizenship. The details must be debated, and a bipartisan path forward agreed upon. It cannot be a rolling protection and must only apply to those already here. But the conclusion is simple.
Reform our amnesty laws, and welcome these children home.
[1] https://thehill.com/blogs/blog-briefing-room/news/369487-poll-nearly-nine-in-10-favor-allowing-daca-recipients-to-stay
[2] https://www.wsj.com/articles/the-border-asylum-crisis-11554062066?ns=prod/accounts-wsj
[3] https://en.wikipedia.org/wiki/Asylum_in_the_United_States
[4] https://www.americanimmigrationcouncil.org/research/asylum-united-states
[5] https://www.wsj.com/articles/the-border-asylum-crisis-11554062066?ns=prod/accounts-wsj
[6] https://www.foxnews.com/opinion/a-border-wall-isnt-enough-asylum-laws-must-be-stricter-to-cut-illegal-immigration
[7] https://www.wsj.com/articles/the-border-asylum-crisis-11554062066?ns=prod/accounts-wsj
[8] https://www.nytimes.com/2019/04/10/us/immigration-border-mexico.html
[9] https://www.nytimes.com/2019/04/10/us/immigration-border-mexico.html
[10] https://www.foxnews.com/opinion/a-border-wall-isnt-enough-asylum-laws-must-be-stricter-to-cut-illegal-immigration
[11] https://www.nytimes.com/2019/04/10/us/immigration-border-mexico.html
[12] https://www.wsj.com/articles/the-border-asylum-crisis-11554062066?ns=prod/accounts-wsj
[13] https://www.foxnews.com/opinion/a-border-wall-isnt-enough-asylum-laws-must-be-stricter-to-cut-illegal-immigration
[14] https://en.wikipedia.org/wiki/Homelessness_in_the_United_States
[15] https://www.npr.org/sections/ed/2017/11/15/564370605/new-study-finds-that-4-2-million-kids-experience-homelessness-each-year
[16] https://en.wikipedia.org/wiki/Poverty_in_the_United_States
[17] Ugarte, Marisa B.; Zarate, Laura; Farley, Melissa (January 2004). “Prostitution and trafficking of women and children from Mexico to the United States”
[18] https://www.amnestyusa.org/most-dangerous-journey-what-central-american-migrants-face-when-they-try-to-cross-the-border/
[19] https://www.foxnews.com/politics/nielsen-ice-gives-pregnancy-tests-to-migrant-girls-as-young-as-10-after-dangerous-journey-to-border
[20] https://www.nytimes.com/2019/04/10/us/immigration-border-mexico.html
[21] US Border Patrol statistics
[22] https://en.wikipedia.org/wiki/Deferred_Action_for_Childhood_Arrivals#Eligibility
[23] “No Evidence Sanctuary Cities ‘Breed Crime’”. FactCheck.org. 2017–02–10
[24] Davidson, Paul (September 8, 2017). “Analysts Say Ending DACA would Hurt Economy, Hiring”. USA Today.
[25] https://en.wikipedia.org/wiki/Deferred_Action_for_Childhood_Arrivals#Eligibility
