Republicans Are Pushing for Drastic Asylum Changes – an Immigration Law Scholar Breaks Down the Proposal

Yves here. Particularly with complex regulatory matters like immigration and taxes, the devil lies in the detail. But the press often goes into MEGO (My Eyes Glaze Over) in reporting on these fine details even when they matter, as in when the legal sausage is being made. It hardly seems extreme to contend that a lot of economic migrants are managing to enter the US by claiming they are asylum-seekers. It is also fair to point out that it is often unrealistically difficult for bona fide asylum-seekers, such as people living under the threat of gang or militia violence, to prove the threats to their safety to the standard of current law.

Of course, it is seldom mentioned in polite company that if the US stopped nation-breaking, particularly in its own back yard, there would be much less in the way of asylum-seeking and the loss of livelihood that makes leaving one’s home country look attractive.

By Jean Lantz Reisz, Clinical Associate Professor of Law, Co-Director, USC Immigration Clinic, University of Southern California. Originally published at The Conversation

There is bipartisan agreement for the need for immigration reform and stark disagreement on what that reform should be.

A rise in illegal border crossings since 2020 has applied significant pressure for changing under what conditions someone can apply for asylum. This government system is designed to provide life-saving relief for noncitizens afraid of returning to their home countries.

Undocumented migrants entering the United States have few plausible options to legally stay in the country. For many migrants fleeing their countries due to violence, war, government collapse, natural disasters or any personal threats that could harm them, the only legal pathway of immigrating to the U.S. is by receiving asylum.

Conservative Republicans in Congress are now proposing legal changes that would make it harder for most applicants to get asylum.

The Republicans’ plan is similar to both a similar rule that the Department of Homeland Security adopted in 2019 and a policy that President Joe Biden is trying to push through.

I am an immigration professor and teach asylum law. I believe it’s important to understand what sets Republicans’ proposed law apart from previous iterations.

The president cannot change the law, but Congress can. If these lawmakers succeed in changing federal asylum law, the law would override the court decisions striking down previous versions. Because Congress has broad power over immigration, the new laws would likely be upheld if challenged in court.

Still, currently, most people who seek asylum do not receive permission to stay in the country, and they are deported.

Understanding Asylum

Currently, any noncitizen, including someone who already lives in the U.S. or who entered the country without a visa – can apply for asylum. This is true regardless of the person’s legal immigration status.

A person can ask the U.S. government for asylum only once they are in the country or at the border – and they must ask for asylum within a year of arriving in the U.S.

Applying for asylum is a complicated process that could take several years. Undocumented migrants often apply for asylum while they are detained in an immigration detention center.

Overall, asylum applicants will need to prove that they face severe harm in their home country from their government or someone their government cannot control, like an armed militia group. This potential severe harm must trace back to their race, religion, political opinion, nationality or some characteristic they cannot, or should not have to, change.

Asylum seekers first make their case to a U.S. government asylum officer, who judges the veracity of their claim in an interview.

If migrants pass this first interview, the migrant is allowed to seek asylum before an immigration judge.

At this stage, asylum seekers will need to show extensive evidence of events and other conditions that place them in severe danger if they are deported. Getting this proof is very difficult for asylum seekers, who typically require the help of an attorney to complete this application process.

Even if an applicant meets all of the requirements to get asylum, a judge still has the discretion to decide whether or not this person should receive it.

Judges then give some migrants asylum, allowing them to apply for U.S. green cards, which are the documents that give someone legal permission to remain in the U.S. They can then lawfully work, receive certain government benefits and eventually apply for citizenship.

A Backlog

As a result of the rising number of undocumented migrants crossing into the U.S. – increasingly from places with widespread government instability and violence, like Venezuela and Honduras – asylum requests are also on the rise.

Asylum cases in immigration court more than tripled between 2021 and 2022, rising from 63,074 to 238,841. And the asylum case numbers continue to grow.

This rise in asylum applications is then coupled with a growing backlog of asylum cases in immigration court.

There are 3 million cases still waiting to go before a judge in immigration courts – 1 million of these are asylum cases. In comparison, the average number of backlogged asylum cases from 2012 through 2016 consistently remained below 200,000.

Consequently, people seeking asylum typically now wait an average of four years before they have an asylum hearing in court – and, in many cases, may wait longer for a decision that they have appealed.

An asylum seeker may, in some cases, apply for a work permit if they must wait more than six months for a decision.

Republican Plan

Conservative House Republicans are now threatening a government shutdown that could happen as early as Jan. 19, 2024. They also have blocked more foreign aid to Ukraine and Israel, and are using their power over this aid as leverage for changing asylum laws.

Biden, meanwhile, wants Congress to approve nearly US$14 billion to pay for more border security agents, as well as asylum officers and immigration judges.

Republicans have rejected Biden’s proposal and instead want new laws that would deny asylum to any migrant who passed through a third country while traveling to the U.S., or who did not enter the U.S. at an official port of entry along a border.

These changes target the fact that most migrants who cross into the U.S. without documentation – and apply for asylum – come from countries other than Mexico. But these people, coming from countries like Venezuela, Haiti and Cuba, first pass through Mexico on their way to the U.S. Approximately 71% of the over 2.4 million people who were apprehended at the southern border in 2023 traveled through Mexico, but were not Mexican citizens.

If this proposed law is passed, these migrants would no longer have a court consider their asylum applications.

Instead, they would not be allowed to apply for asylum. They would be immediately deported back to their own countries.

Democrats have opposed the changes when they were proposed as part of a bill in May 2023, but some Democrats are more open to asylum restrictions and may compromise to reach a deal.

Not the First Go-Around

The proposed change that would deny asylum to those who have traveled through a third country is identical to a Department of Homeland Security rule that the agency adopted under former president Donald Trump’s administration in 2019.

Biden has proposed a similar policy, with exceptions for a migrant who obtained special permission to enter the U.S., or who was denied asylum in another country. The Ninth Circuit Court of Appeals struck down Trump’s rule in 2020 because it violated current asylum law that permits anyone to seek asylum, regardless of how they enter the U.S.

The president cannot change the law.

A federal district court struck down Biden’s policy in July 2023 on the same basis. Biden has appealed that decision.

Republicans are proposing other laws to make it harder to receive asylum. One change would require asylum seekers to present a large amount of evidence proving their fear of persecution during their first interview with a government asylum officer – not later, when they go before a judge. The law would also end programs that allow migrants to stay with sponsors in the U.S. while seeking asylum.

In summary, the proposed changes would make it almost impossible for a migrant entering through the U.S.-Mexico border to get asylum, even if that migrant has a legitimate fear of returning to his or her home country.

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  1. Aaron

    Does this sound like such an unreasonable “fix” to US asylum policy? Do the migrants have legal right to claim asylum in any country prior to arriving in the usa?

    1. disillusionized

      According to international law (the rules in the rules based order) anyone have a right to apply for asylum anywhere.

      The fact that they travelled through Mexico is moot.

  2. Gregorio

    They always completely ignore the culpability of the U.S., for the economic sanctions and political meddling, that make life untenable in most of the countries that these refugees are primarily coming from.

    1. lyman alpha blob

      I find this similar to the situation in Rome in the early 5th century. Alaric appeared at the gates of of Rome with an army, but it was a mercenary army which at one point was allied with Rome, and could still have been. Alaric made his plea that his army had fought for the empire for years, brought great wealth to Rome, and now wanted to be considered equals deserving of full Roman citizenship and all the benefits that came with it. Rome declined his reasonable offer, and his army sacked the city instead.

      In today’s world, we have asylum seekers coming from countries that the US has deliberately destabilized, either through sanctions, direct attack, or both. They may come from countries with different names, but if the US is the one determining who gets to lead those countries for the benefit of US oligarchs, then those countries are essentially now part of the US empire. That being the case, I would argue that the US has some obligation to treat those people displaced by US policies fairly.

      If the US wants fewer asylum seekers, stop interfering with their countries. That would be my solution to the problem. But if the US isn’t going to do that, it’s time to own up to the consequences of its actions and treat those displaced people fairly. Or risk history rhyming again.

    2. JonnyJames

      Exactly. We must blame the victims and reward the perps. Immigrants are always used as a scapegoat and a distraction, especially in an “election cycle”.

      Imposing illegal siege warfare (so-called sanctions) on Venezuela, Cuba etc. is never mentioned. Election meddling, CIA gun-running, drugs running, regime-change and other dirty tricks are never mentioned. (We are supposed to believe the CIA bake cupcakes for charity, and does no wrong).

      The US simply ignores the law. Also, imposing neoliberal financial imperialism is also a huge factor.

      The US is portrayed as a “helpless hegemon” that is being victimized by the powerless, and is experiencing “an invasion” of disease-ridden, dirty, foreigners who are out to rape your women and murder your family. They “are poisoning the blood of our country”. This is textbook racist fearmongering, and “otherizing” the outgroup to mobilize political support for the “in-group”.

      Supporting genocide, bombing entire countries into the Stone Age is another obvious contributor to refugees and migrants as well.

  3. Duke DeGuise

    Two points:

    – My daughter is married to a Colombian, who has friends and relatives planning to come to the US and seek
    asylum. These are, by Colombian standards, middle class people who are not politically active and live in a region of the country that has not experienced much political violence, which
    would seem to undermine their case. Anecdotal, obviously, but it rings true enough to give me a general skepticism of many other asylum claims.

    – Liberals who for years have supported or remained silent about coup attempts and politically-motivated sanctions against countries like Cuba and Venezuela have no moral standing to say anything about what the Repugs are planning: they took the easy, morally vain and politically void route of denouncing Orange Man, while supporting the policies that are generating the crisis (I live in NYC, and am witnessing it first-hand).

    Cynic that I am, I find it impossible not to see a connection between Biden and the D’s refusing to raise the federal minimum wage, and their providing accelerated routes for Venezuelans and Cubans to work legally. They and their supporters want to butter both sides of their bread, supporting imperialism and cheaper nannies for their kids, while feigning aghastitude about those mean Republicans.

    1. Adam Eran

      Raising the minimum wage, forgiving student debt, etc. would make it even more difficult for the military to get recruits–and they’re falling short now. MMT lobbies for a job guarantee, but the US version is the military.

  4. Fred

    What ever they do, you shouldn’t make it so confusing that you have to have a lawyer to navigate the system. That is unless your real purpose is just to keep people out, at least those you think aren’t likely to vote for you

    1. Dave Chapman

      Ask Zoe Lofgren (D-San Jose, CA) about the latest Full Employment for Immigration Lawyers Bill.

  5. Marilyn

    The Democratic supermajority in California whining about housing costs, low wages, and the impossibility of locating housing at all, are the same ones promoting the invasion.

    FGNewsom, Scott Weiner and the DEMolition crew.

  6. JonnyJames

    Cracking open some history books would be welcome for context. Eduardo Galeano is a good start, from a Latin American perspective.

    Sadly, we live in an anti-intellectual, dumbed-down society where few can be bothered to read history. “We don’t need no stinkin’ history books, burn em!”

    1. Phil

      Yes, Galeano (since passed) wrote several books that were eye-opening. I just finished “Mirrors” – what a history lesson!

  7. David in Friday Harbor

    In a world in where the American hegemon sows chaos, where the climate is rapidly changing, and where the human population has ballooned from 2.6 billion to 8 billion in my lifetime, it seems to me that the concepts of “sanctuary” and “asylum” themselves are quaintly outmoded medieval virtue-signaling of no current utility.

    Our entire quota-based system appears to be based on nothing other than exploitation and political expediency, not on protecting persons persecuted due to “immutable” personal characteristics. The explosion in asylum-seeking raises the question of who is attempting to exploit whom? It’s a political question for the congress to decide.

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