New York City Mayor Eric Adams was in El Paso, Texas, this weekend, on a sort of bizarre official trip to another city to talk about an issue that’s affecting his own: the arrival of asylum seekers. Adams toured around the border and held a press conference where he bemoaned the fact that some 40,000 migrants have arrived in the city since last year, many sent as a political stunt by officials in other states. He called on the federal government to intervene, including with funding.
Adams’ entreaties are vague enough that they’re a bit of a Rorschach test for how the listener wants to handle immigration. His most common refrain is to ask the federal government to “do your job” when it comes to management of immigration, which, depending on who’s listening, could mean doubling down on Title 42 and further shutting down the border to humanitarian migration, having a national strategy to relocate migrants to localities with capacity and funding to receive them, shifting laws to make it easier for them to work, or all of the above.
In that regard, the mayor’s pronouncements on this are actually a pretty perfect window into the way that a lot of more moderate liberals think about humanitarian immigration. They don’t necessarily know how all the mechanics work under the hood, but they hold two general attitudes in conflict: that migrants should be welcomed, assisted, and treated with respect, and that some significant portion of them are essentially gaming the system that exists, that their cases should be decided quickly and ideally without them having to alight in American cities, and that having large volumes of people requesting asylum in the United States is somehow a federal policy failure that can and should be remedied.
Examining policy failures
Let’s take that latter sentiment step by step. First of all, in a world where efficiency, speed, and innovation are the buzzwords of choice for business and government, there’s a lot of frustration over the fact that asylum cases move so glacially. There are definite bureaucratic and fixable reasons for this, not least that applications made at the border, which are known as defensive applications given that they’re a defense against a deportation case, are still mostly thrown into the adversarial and drawn-out setting of a court fight. This isn’t the only way to do this, as evidenced by the fact that the government has actually already rolled out an alternative in the form of giving initial jurisdiction of defensive cases to the U.S. Citizenship and Immigration Services instead of the courts, but it is very limited in scope so far.
That said, there’s a limit to how fast cases can go, and how easily rejections can be handed down, and that’s by the very nature of what an asylum process is supposed to be. As we’ve noted before, asylum law very explicitly states that people can file asylum applications regardless of their manner of entry into the country and current status, i.e. even people who crossed the border illegally by law should have the ability to make an asylum claim (in practice, of course, this doesn’t always pan out, as most clearly exemplified by the use of Title 42). The first steps in such a claim, namely the credible fear interviews, are by design pretty low bars to clear, and the rest of the proceedings are complex and tend to involve extensive, detailed evidence and documentation.
Put simply, the reason for this is the recognition that these are fundamentally life-or-death cases. Erroneously sending someone back to a country of origin can be a death sentence, and making those sorts of determinations is messy. To qualify for asylum, someone has to prove that they are facing or will almost certainly face persecution on the basis of race, religion, nationality, membership in a particular social group, or political opinion, which can get very complicated depending on the interlocking factors at play. A society might be generally hostile to, for example, people of a certain religious minority, but it’s a different animal to prove that you have been or are likely to be persecuted individually, in a way that the government either condones or is at least uninterested or powerless to prevent. Trying to speed these cases through can be and indeed has been a disaster for due process.
Asylum cases move slowly through the system
So if there’s a limit to how fast these cases can go, why do the applicants have to come and initiate thousands of proceedings here? Why don’t they apply from elsewhere? Well, the law itself requires that people be physically present in the U.S. before they can file an asylum claim, and for a huge chunk of the world, the only way to do that is to show up at the border; generally speaking, you can’t board any type of vessel bound for the U.S. if you don’t already have entry documentation. There is, of course, a refugee program with identical qualifying standards to asylum, but contrary to popular belief, you can’t apply for it directly. You have to be referred by a third party, usually the United Nations, and that means there has to be an infrastructure in place to make those referrals.
The refugee program is also, for obvious reasons, not designed to put you through years of applications while you’re still in the place where you’re in danger, but already a third country. As we detailed recently, the administration has also failed spectacularly to even come close to hitting the refugee caps it’s set for the past two fiscal years, keeping refugee admissions at the lowest levels in decades, so insofar as the refugee system is another option, it hasn’t proved to be a particularly robust or accessible one for anyone, let alone the Venezuelans and Central Americans that have made up the bulk of recent asylum applicants.
How about alternatives to these humanitarian programs, then? There aren’t really any viable ones. Lately, the Biden administration has been leaning heavily on humanitarian parole, but, as we’ve exhaustively detailed, that is a terrible replacement for asylum. Aside from the fact that it’s not really serving the same populations, it’s a discretionary, nonpermanent, and rather flimsy status that can be renewed but never converted to permanent status, unlike asylum’s pretty straight shot to residency. The more people are added to the rolls of parole, the bigger that unresolved issue becomes.
Alright, so how about people being allowed to make the applications, but then waiting elsewhere? That’s actually also been tried, to disastrous effects. The so-called Remain in Mexico program, which the Biden administration finally brought to a close last summer after a favorable Supreme Court decision, forced people to wait in Mexico as their asylum applications moved forward, with the idea being that they would be permitted to through the (ostensibly legally guaranteed) process while not being inside the U.S. In practice, multiple reports found that those waiting in northern Mexico often failed to find lawyers to help them, all but dooming their cases. Many lived in squalid and unsanitary conditions while being preyed on by cartels and assorted criminals. Asylum seekers’ arrival on U.S. soil isn’t always smooth sailing, but one thing it does generally guarantee is some degree of safety.
Public perception of asylum claims
The Remain in Mexico plan and many of the objections people have about asylum seekers in general flow downstream from the fact that large swaths of the government and the public essentially believe that many asylum claims are not meritorious, or even fake. There’s a lot of consternation specifically around the fact that attorneys coach clients on what to say in interviews and documents, but that is of course what literally every type of attorney does for every type of client, and it’s especially crucial here because the way that applicants frame and phrase their experiences can make the difference between whether their cases move forward, regardless of what those experiences actually were. All things considered, the standards for qualifying are rather narrow, and people can be denied even if the government agrees they’re in danger, provided they’re in danger for the wrong reasons.
This is also why the asylum denial numbers that get trotted out to try to establish that most claims are frivolous are themselves a bit misleading. Grant rates vary wildly around the country, with New York generally being the friendliest — something like 26 percent denials — and Atlanta being almost impossible — almost a 100 percent denial rate. On average, nationwide denials stand at about 60 percent, meaning that, yes, most people who apply for asylum are denied and ordered deported. Two things though: this isn’t a dramatically high rate, and it certainly doesn’t mean that all of the applications that are denied are frivolous. Many of the applicants could have faced some form of danger, but their circumstances weren’t deemed to hew closely enough to the specific standards for asylum.
So if applications must be processed, if people should be allowed to go through their applications from within the U.S., and there’s a limit to how fast the applications can go while still respecting due process, where does that leave us? The status quo of thousands of chaotic arrivals in cities like New York? Well, not exactly. There are still plenty of things that can be done to improve the situation, and Adams is right that a big part of what’s missing is direct federal intervention. Not in terms of blocking access to the border, as he might be implying, but with two key support pillars: logistical and funding.
As we’ve detailed before, the federal government hasn’t always been so hands-off with placement of asylum seekers, and in other scenarios has certainly mustered up the ability to transport migrants around the country, albeit often for less than savory reasons. In this instance, what it could do is coordinate with officials in states and localities around the country to determine where migrants could be best accommodated, and offer actual direct monetary support to contend with the very real costs of providing food, shelter, legal services, and other aid. As things stand, things are running on an ad hoc basis, giving carte blanche to bad actors like Texas Gov. Greg Abbott and Florida Gov. Ron DeSantis to make political theater out of them. This isn’t to say that the government should force people to go to different parts of the country, but they can make real guarantees of the sort that are now being falsely made: once you get here, you will have at least some basic services.
The other big sticking point is work. A significant plank in Adams’ stump speech on this is pushing for the federal government to just let asylum seekers work in the U.S., instead of having to receive significant support for months with no legal way to support themselves. The trouble here is that Biden couldn’t just sign an order to make this happen. The requirement that asylum seekers wait 180 days after filing an application to receive work authorization is statutory, and would have to be changed by Congress, a body that is, to put it mildly, not particularly efficient and certainly not known for its ability to move immigration-related legislation. If these things happened, though, and the administration also switched more cases into the non-adversarial processing, it could make a significant difference in how new arrivals play out on the ground. That’s especially crucial in the run-up to the potential end of Title 42, at which point there will be no ability to simply expel people.
