America’s asylum system is broken. Here’s how Biden could fix it.

The US isn’t prepared for another spike in migration at the border.

Republicans have been eager to blame President Joe Biden for inviting a recent spike in arrivals of children and families at the southern border, with his promises of a more humane approach to immigration policy than his predecessor. But it’s not a one-off crisis — it’s part of a recurring problem to which the US has not adapted, and that has persisted even at times when the federal government has pursued restrictionist border policies.

The Obama administration saw a similar spike in 2014, when more than 237,000 Central Americans, including more than 60,000 unaccompanied children, showed up at the southern border. And it happened again in 2019 under the Trump administration, when officials encountered almost 1 million migrants over the course of a year, including 144,000 in a single month.

The US doesn’t have a system in place to ensure that migrants are treated humanely and in accordance with federal law when these spikes occur. Children have consequently been kept in jail-like holding facilities operated by US Customs and Border Protection beyond the 72-hour legal time limit. That is why the Obama administration, the Trump administration, and most recently the Biden administration have been condemned for keeping “kids in cages.”

While the humanitarian challenges on the southern border are far from over, the number of migrant children and families arriving has slightly subsided from record levels in March, and the Biden administration is moving unaccompanied children out of unsuitable CBP holding facilities much more quickly than it was before. As of May 26, there were 619 children in those facilities, down from more than 5,000 in early April, according to data from the Department of Homeland Security. (Though are still more than 18,000 children in government-run shelters, many of whom are waiting to be reunited with family in the US.)

As the pressure on resources at the southern border begins to ease, now is the time for the Biden administration to start charting a path forward to ensure that, the next time the US sees a spike in migrant arrivals, it is prepared.

Gregory Bull/AP

“We’ve never had a plan to rapidly surge resources into the immigration system when things get overloaded,” said Theresa Cardinal-Brown, managing director of immigration and cross-border policy at the Bipartisan Policy Center. “And yet, history has shown that we have major migration events that happen every once in a while. We need to think about those more as regular things rather than the odd accidents that may never come again.”

The US can anticipate these spikes, which are symptoms of the ongoing humanitarian crisis in Central America’s “Northern Triangle” — Guatemala, Honduras, and El Salvador. For years, these countries have suffered from gang violence, government corruption, extortion, and some of the highest rates of poverty and violent crime in the world. The pandemic-related economic downturn and a pair of hurricanes late last year that devastated Honduras and Guatemala in particular have only exacerbated those longstanding problems. Many of the migrants arriving on the southern border, sometimes in large caravans, likely felt they had no choice but to seek refuge elsewhere — as is their right under US and international law.

Though the Biden administration has yet to give an outline of its plans to manage the border, several immigrant advocacy groups and think tanks have devised potential frameworks to improve migrant processing. Republican Sen. John Cornyn and Democrat Sen. Kyrsten Sinema have also drafted a bill that would implement related reforms, though it’s not clear whether the legislation will draw significant support from members of either party. Those strategies will become all the more important as the Biden administration begins to lift pandemic-related restrictions at the southern border and resumes processing migrants en masse.

Customs and Border Protection shouldn’t be primarily responsible for processing vulnerable migrants

A core problem with the current system is that US Customs and Border Protection, the law enforcement agency responsible for apprehending migrants trying to cross the border without authorization, is also charged with initially processing asylum seekers. That’s a relic of the 1990s and 2000s when single adult males from Mexico accounted for the vast majority of people arriving on the border.

Since 2014, children and families from the Northern Triangle have arrived in greater numbers with fundamentally different humanitarian needs than the Mexicans who came before them, including child care, schooling, and medical and mental health care for trauma victims.

The Bipartisan Policy Center has argued that the recent shift in migration flows requires that the US rethink its approach to how it processes people at the border: CBP should continue to focus on issues related to border security — crime, drugs, contraband, and terrorism — but should leave processing children, families, and other vulnerable populations who may need emergency relief to other experts.

In a plan laid out in a recent report by the think tank, migrants apprehended at the border would be taken into temporary influx facilities jointly operated by CBP, FEMA, and the Department of Health and Human Services where they would receive shelter, food, emergency medical care, and access to other relief. Only minimal processing, such as recording basic biographical data, would occur at these facilities.

People suspected of criminal activity or who have outstanding warrants would still go to secure holding facilities currently operated by CBP. But everyone else would then be transported to newly created Regional Migration Processing Centers, where non-uniformed staff (as opposed to CBP officers) would administer legal and medical services to migrants and care for children and trauma victims. There would be separate spaces to house families and children and single adults.

Christian Chavez/AP

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These centers would be staffed with asylum officers from US Citizenship and Immigration Services who would be able to immediately grant asylum to people with straightforward cases, as opposed to having to go through extensive, time-consuming proceedings in immigration court. Those cases would have to be completed in 20 days or less, or transferred to new, nearby border courts.

The border courts, staffed with a new slate of immigration judges, would primarily handle cases involving migrants who have recently arrived in the US and would have to issue a decision within 90 days. If it takes longer for migrants’ cases to be decided, they could be transferred to other immigration courts across the US.

The result would theoretically be that immigration cases could be decided in a matter of weeks or months, rather than years. As of April, immigrants had been waiting an average of more than three years for their cases to be decided in immigration court, which is a lot of time in limbo.

“We have to have a system that is much more expeditious in deciding cases,” Cardinal-Brown said. “That’s good both for people who deserve protection — who can find out quickly, get their status, and get legal work — and for people who don’t make the cut, who can be sent back in an expeditious manner.”

Under the plan, those who receive an adverse decision from an asylum officer could appeal in immigration court if they choose, though in expectation, not everyone will. Single adults and those who aren’t seeking a form of humanitarian protection could still face rapid deportation through a process called “expedited removal,” under which a migrant does not have the opportunity to plead their case before an immigration judge.

That’s why it’s also important for the US to explore additional legal avenues for people to migrate to the US, such as work visas. The asylum system may be the only currently viable path for Central Americans. Otherwise, they would need a job opportunity requiring certain skills or education or an immediate family member who’s a US citizen who could sponsor them for a visa.

“We need to vastly expand legal avenues for people so that they’re not coming into the asylum system in lieu of some other available form of relief,” Cardinal-Brown said.

Biden could look for alternatives to rapid deportations

While Cardinal-Brown maintains that expedited removal has a place in a functioning immigration system, others have advocated for dramatically scaling back its use, or even abolishing it altogether.

Expedited removal was implemented more than two decades years ago in the interest of increasing efficiency in immigration enforcement. But in the time since, the backlog of cases in immigration courts has grown to exceed 1.3 million, suggesting that it isn’t necessarily working as intended to relieve pressure in other parts of the immigration system. The Trump administration had nevertheless expanded its use beyond just immigrants arriving at the border. Now, unauthorized immigrants living anywhere in the US can be deported under expedited removal.

Yael Schacher, senior US advocate at Refugees International, has argued that, once the Biden administration lifts pandemic-related restrictions at the border, it shouldn’t revert to relying on expedited removal as a primary means of managing migration at the southern border.

In a recent report, she recommends implementing two pilot programs to test out such methods. One program could be based on the administration’s existing system for processing people who qualify for exemptions from the current pandemic-related expulsion policy implemented last March under President Donald Trump.

Similar procedures could be used to identify groups who request asylum at a port of entry and for whom expedited removal has historically proved unfair and inefficient, including speakers of indigenous or rare languages. CBP could release them from custody and instruct them to check in with US Immigration and Customs Enforcement, which would then refer them to the asylum office to file an application. If they don’t follow through with the application, then the government could initiate deportation proceedings in immigration court, Schacher writes.

The other proposed pilot program could be modeled after the Biden administration’s current practice of releasing some families into the US due to the fact that Mexico has refused to take them back after they are expelled.

After being processed by CBP, migrants from countries that have not historically cooperated with US efforts to deport their citizens could be sent to a newly created reception center operated by Health and Human Services’ Office of Refugee Resettlement.

They would be subject to full deportation proceedings in immigration court, provided with legal orientation services and, if necessary, placed in a case management program designed to ensure immigrants show up for their immigration appointments without putting them in detention. (Though studies have shown that most migrants who were never detained or who were released from detention still show up for their court hearings.) Immigration judges would then terminate deportation proceedings and refer them to the asylum office to file an application.

These proposed pilot programs might seem unnecessarily complex, requiring various steps of referral to different agencies. But they are designed to work within the existing legal framework and allow the Biden administration to test out potential changes to the asylum system unilaterally.

“Putting resources into developing that fair process seems to make the most sense from a human rights and efficiency perspective, especially given that the deterrent approach we have taken for the past 25 years certainly has not stopped people from coming to the border, or led to an efficient asylum process,” Schacher said. “I’m trying to encourage us not to presume that the only efficient and fair way to do things is to rush the process while everyone is detained at the border, which I think is the impulse now.”

The US could put more power in the hands of asylum officers

It’s clear the current system isn’t operating quickly enough to accommodate the number of asylum seekers arriving on the border. That could actually encourage more migrants to make the journey north, said Doris Meissner, a senior fellow at the Migration Policy Institute.

“The government is doing all this messaging [about the dangers of migrating], and that is not nearly as meaningful to people as the fact that they know from their communities, their families in the United States, and from smugglers, that if you manage to get here and get into the system, your case is going to be pending for years into the future,” said Meissner, who also served as the commissioner of what was then known as the US Immigration and Naturalization Service under the Clinton administration. “That is a real pull factor.”

As a fix, Meissner has proposed to empower asylum officers via a regulatory change to grant asylum in cases that arise on the border without having to refer applicants to the immigration courts, unless they want to appeal an adverse decision. It would represent an expansion of their existing responsibilities, which also include issuing decisions for tens of thousands of people annually who apply for asylum from inside the US.

Shifting processing to the asylum office, which only has a backlog of about 350,000 cases, would in some ways enhance due process for asylum seekers.

In contrast to the process in the immigration courts, interviews at the asylum office are non-adversarial. Asylum officers undergo extensive training on how to conduct interviews with people who have experienced trauma, such as sexual violence, assault, death threats, kidnapping, and torture. And they are educated on conditions in migrants’ home countries that might have driven them to flee.

Allowing asylum officers to grant asylum in the first place would also allow immigration judges to focus their resources on more complex cases.

Gregory Bull/AP

“It’s important to reserve the immigration court time for cases where there’s a real issue as to whether relief can be granted,” said Paul Schmidt, a former immigration judge who chaired the Board of Immigration Appeals, an appellate body within the DOJ, under the Clinton administration. “I think there’s a lot of cases out there that could easily be granted at the asylum office. They never have to get to the immigration court.”

But there are some ways in which the asylum office remains under-resourced. Karen Musalo, founding director of the Center for Gender & Refugee Studies and a professor at UC Hastings College of Law, said that asylum seekers are currently required to provide their own interpreters during interviews with asylum officers, meaning that the quality of interpretation can be “quite below standard,” often to the detriment of an applicant’s case.

Asylum seekers, including unaccompanied children, also don’t have government-appointed lawyers, either at the asylum office or in the immigration courts. There is a robust network of legal aid groups, NGOs, and law firms doing pro bono work that have stepped up to fill that gap somewhat, representing people individually, conducting “know your rights” presentations, and offering legal advice. But more than half of people facing immigration court proceedings still don’t have a lawyer, even though it vastly improves their chances of obtaining relief from deportation.

Biden recently issued a memorandum seeking to expand access to legal counsel for immigrants, but it’s not yet clear how he would do so.

“The entire system would run more efficiently and smoothly, and it would be cost-effective, to have appointed counsel for all asylum claims,” Musalo said.