Entering the U.S. through a narrower door

When Carlos Navarro crossed the U.S.-Mexico border into California in 1982, the 18-year-old intended to overstay his visa. He spent the next three years applying for asylum to become a legal permanent resident. But his case was denied. “Honestly, I had no reason that my life was in danger,” Navarro said. But at the time he couldn’t imagine going back to Guatemala’s economic conditions. “We followed the flow because it’s unlivable,” he said.

He hears stories similar to his own as he hands out backpacks stocked with Gatorade, hygiene kits, and Bibles to asylum hopefuls at a respite center in the Texas border city of Brownsville. Last fiscal year, border agents reported a record 2.4 million encounters at the southern border. By the end of the first quarter of this fiscal year, authorities had already documented nearly 633,500 encounters.

Crossings fell in January after President Joe Biden announced several immigration measures to prepare for the end of Title 42, the pandemic-era public health order that allows immigration authorities to expel some immigrants before they can request asylum. If Title 42 ends in May when the public health emergency for COVID-19 is expected to end, Navarro anticipates crossings will skyrocket again

But he says not all asylum-seekers truly need asylum. “Not everybody is in danger because of gangs, or government, or political riots,” he said. “They’re in danger because of poverty.”

Last week, the Biden administration released a proposal to limit how and when immigrants can seek asylum. Democratic lawmakers and immigrant advocates quickly condemned the policy as restrictive and inhumane, while others said it doesn’t do enough to fix a broken system.

U.S. immigration law allows immigrants who have a “well-founded fear of persecution” on account of religion, political opinions, nationality, or membership in a particular social group to apply for asylum within one year of arrival. If authorities determine the immigrant has a legitimate fear of persecution in an initial interview, the individual joins a line of almost 1.6 million asylum hopefuls waiting for their hearings in immigration court. The backlog doesn’t include those who have entered the United States through the asylum process but have not yet submitted their application.

The administration’s proposed 153-page rule requires asylum-seekers to make an appointment through a new U.S. Customs and Border Protection mobile app for an interview at a port of entry. Immigration authorities will deport non-Mexican immigrants who cross illegally and request asylum between ports of entry unless they can prove they were denied asylum in another country on the way to the United States. The rule will likely go into effect in May for two years. It will be posted in the Federal Register for 30 days of public comment.

“As we have seen time and time again, individuals who are provided a safe, orderly, and lawful path to the United States are less likely to to risk their lives traversing thousands of miles in the hands of ruthless smugglers only to arrive at our southern border and face the legal consequences of unlawful entry,” Homeland Security Secretary Alejandro Mayorkas said in a statement.

The proposed rule exempts unaccompanied children and immigrants at risk from a medical emergency, imminent violence, or sex trafficking or involuntary servitude. They can still apply for asylum under the current rules.

Some Democrat lawmakers and immigration advocates compared Biden's requirement that asylum-seekers who cross illegally first seek asylum in a third country to a similar Trump-era rule. It required all asylum-seekers to apply for protection in another country they traveled through en route to the United States. Advocacy groups alleged the 2019 interim rule violated immigration law. A federal judge blocked the administration from enforcing the rule, setting off a year of legal wrangling before a federal district court overturned it entirely because the Trump administration did not follow the notice and comment rulemaking process. The administration appealed the ruling in August of that year.

Biden’s rule may also be dragged into court because asylum law permits an immigrant to make an asylum claim on American soil whether or not they arrive through an official port of entry. But Biden has also expanded legal immigration pathways. Any asylum-seeker can make an appointment through the CBP One app at a port of entry. And in January, the administration announced they will accept up to 30,000 Venezuelans, Nicaraguans, Cubans, and Haitians per month through a private sponsorship parole program.

But some immigration advocates are still concerned that the rule may block vulnerable people from getting the protection they need. “The government tries to build layers around due process,” said Matthew Soerens, the U.S. Director of Church Mobilization for World Relief. “The goal of the United States should be to protect people while we determine if they’re qualified to stay.”

Showing up at the U.S. border may be the last resort for some desperate asylum-seekers. Some reports claim the CBP One app regularly malfunctions and keeps immigrants waiting for weeks. “The slots available to be considered for asylum go almost immediately,” Soerens said, “There’s a very small number of appointments available, and that presumes you have access to the technology to use the app.”

International refugee standards recognize a nation’s right to redirect asylum-seekers to apply in a safe third country en route to the country where they initially hoped to request asylum. But that nation must determine the third country is safe and equipped to handle their asylum case.

Soerens is concerned that other North American asylum systems may not have the capacity to handle a flood of new applications and may not be safe alternatives. Though Mexico has strengthened its asylum infrastructure, it has nowhere near the capacity of the United States. Andrés Ramírez heads Mexico’s refugee assistance agency. He worries Biden’s new rule will make Mexico a more attractive pit stop for asylum-seekers heading to the United States. Many Hondurans will likely seek asylum in Guatemala, Soerens said. That country only established a new legal framework for asylum in 2016 and added another asylum unit in 2021.

Mark Morgan is the former acting commissioner of U.S. Customs and Border Protection under former President Donald Trump and a visiting fellow at the Heritage Foundation. He is concerned that Biden’s proposed rule does not go far enough in protecting the U.S. asylum system from abuse and overuse at ports of entry. “The overwhelming majority of those coming to make an asylum claim are economic migrants who do not qualify for asylum, and we are processing and releasing them,” he said. Immigrants often wait years for their first hearing and, in the meantime, start their lives in the United States. Morgan says the sluggish system incentivizes more immigrants to take their chance.

To ease the overdependence on asylum and work through the backlog, Congress must expand alternate legal pathways, said Jennie Murray, president and CEO of the National Immigration Forum. “There’s not a crisis at the border, there is a crisis with our system,” she said. Limiting legal immigration and slashing refugee resettlement during the pandemic contributed to an overdependence on asylum, she argued. Many asylum applicants are simply in search of work, and U.S. industries such as agriculture and dairy desperately need labor.

When U.S. Citizenship and Immigration Services denied Navarro’s asylum claim, he was out of legal options. But former President Ronald Reagan gave Navarro and an estimated 3 million other illegal immigrants the opportunity to change their status when he signed sweeping immigration reform legislation in 1986. Navarro became a U.S. citizen about 10 years later. He has pastored Iglesia Bautista West Brownsville for about 30 years.

For millions of today’s asylum hopefuls, the legal limbo has no end in sight. At his respite center, Navarro recently welcomed a Venezuelan immigrant making his way to New York. The man carried a large manila envelope of paperwork that listed his first asylum court appearance for 2027.