The Perverse Incentives of Our Asylum Laws
(An Excerpt From ‘Moral Obligation and Immigration Reform: A Bipartisan Path Forward)
Joshua Wexler, 2019
Ideologies are complex, but the framework for change is simple. We start from the beginning, and see where we end up.
We must examine the nature of our many, often competing moral obligations, review the facts on the ground, and use what we find to build a framework for the objectives we want to achieve. The solutions will vary, and inevitably take different forms as pass through our personal ideological filters. But what was once partisan maneuvering is now a contest of ideas with the same shared goal: Makes this country a better place for everyone.
Leave behind your preconceived notions, and you’ll be surprised where you end up.
This is an excerpt from of a larger series that constructs bipartisan immigration reform from the bottom up.
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 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).” [1]
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.).’[2] 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.[3]
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).” [4]
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)”[5]
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).” [6]
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).”[7]
“[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).”[8].
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)”[9].
“As many as 27,000 children are expected to cross the border and enter the immigration enforcement system in April alone. (Shear, NYT, 2019).”[10].
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.”[11] 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, and Mexico must become a partner in ensuring the safety of those making the journey and waiting for their asylum 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.[12]
This is a hard truth, but the exact reason we took a deep dive into the nature of our moral obligation to others. 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. 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.
There are a number of problems that must be solved in order to achieve moral and sustainable immigration reform. Policy does not exist in a vacuum, and every change has a consequence — every action has a reaction. The scales must be balanced, and the solution approached holistically. No reform can stand on its own and succeed –If we fix our asylum laws, yet do not modernize our static quotas and legal immigration infrastructure, secure the border, and extend DACA protections, we are right back to where we started. Change must be comprehensive and holistic. Anything less is disingenuous political maneuvering, immoral, and overall just bad policy.
I;m sure you have questions, and there are answers. If you would like to read the full piece, here is the link: https://medium.com/@joshuawexler7/moral-obligation-and-immigration-policy-a-bipartisan-path-forward-3cbed4be66d4
[1] https://www.wsj.com/articles/the-border-asylum-crisis-11554062066?ns=prod/accounts-wsj
[2] https://en.wikipedia.org/wiki/Asylum_in_the_United_States
[3] https://www.americanimmigrationcouncil.org/research/asylum-united-states
[4] https://www.wsj.com/articles/the-border-asylum-crisis-11554062066?ns=prod/accounts-wsj
[5] https://www.foxnews.com/opinion/a-border-wall-isnt-enough-asylum-laws-must-be-stricter-to-cut-illegal-immigration
[6] https://www.wsj.com/articles/the-border-asylum-crisis-11554062066?ns=prod/accounts-wsj
[7] https://www.nytimes.com/2019/04/10/us/immigration-border-mexico.html
[8] https://www.nytimes.com/2019/04/10/us/immigration-border-mexico.html
[9] https://www.foxnews.com/opinion/a-border-wall-isnt-enough-asylum-laws-must-be-stricter-to-cut-illegal-immigration
[10] https://www.nytimes.com/2019/04/10/us/immigration-border-mexico.html
[11] https://www.wsj.com/articles/the-border-asylum-crisis-11554062066?ns=prod/accounts-wsj
[12] https://www.foxnews.com/opinion/a-border-wall-isnt-enough-asylum-laws-must-be-stricter-to-cut-illegal-immigration
