While the coronavirus pandemic and the upcoming election overwhelmingly dominate the nation’s attention, other critical challenges facing the nation continue to be dangerously ignored. One such issue is our country’s chronically dysfunctional asylum system which, a little more than a year after having provoked one of the most severe crisis on our southwestern border in American history, still remains vulnerable to yet another massive resurgence of abuse and fraud.
With important corrective measures by the Trump administration still in the process of being implemented and recent court rulings threatening to dismantle several changes already put into place our current system is vulnerable. At present the only thing effectively preventing the U.S. asylum system from being once again overwhelmed by abuse and fraud is the 1944 Public Health Service Act that the administration was able to invoke due to the coronavirus pandemic.
That law is what has really allowed the administration to put the brakes on both asylum applications and illegal immigration. However, the use of this law will only last as long as the pandemic. To avoid the emergence of another looming crisis, the country needs to implement lasting reforms now, while the flow of asylum applications and illegal immigration is still low.
The essential problem with the U.S. asylum system is that it was built to respond to the challenges of the Cold War in the 20th century, not the immigration challenges of the 21st. Just over a year ago, the Texas Public Policy Foundation published a study, “Toward a 21st-Century Asylum System” that identified the system’s core flaws, along with three key things that need to be done to fix it: streamlining the credible fear process, abolishing the 1997 Flores Settlement Agreement and amending the Trafficking Victims Protection Reauthorization Act of 2008 to eliminate the distinction between unaccompanied minors (UACs) from contiguous and noncontiguous countries.
While we have seen welcome Trump administration action on credible fear reform, with new rules just now going into effect this August, progress on the other two essential asylum policy fixes has been thwarted, due to both congressional inaction as well as court challenges and decisions that have stymied the full implementation of new administration rules. Most recently, the Trump administration’s “First Country” rule was struck down by a federal district court. This rule significantly reduced the exposure of the U.S. asylum system to abuse, by requiring potential asylees fleeing their countries to seek asylum in the first safe country they reach. This rule was struck down on a technicality. Hopefully it will be firmly reinstated soon.
In addition to rules streamlining the credible fear process and tightening the standards for what qualifies as credible fear, another recommended reform is shifting more of the asylum caseload to the Asylum Division of U.S. Citizenship and Immigration Services, a move that would greatly relieve the country’s badly clogged immigration courts.
The Trump administration has also attempted to amend the 1997 Flores Settlement Agreement, which currently limits the number of days children and family groups can be detained to a maximum of 20 days, but that effort is also still tangled up in court. The Flores agreement is responsible for a considerable amount of the abuse of the asylum system in recent years, as the release of family units after a brief 20-day detention has served as a powerful incentive to would-be asylum seekers to head to our southwestern border with minors in tow.
Even though the 1997 Flores agreement contained provisions for its own termination and the Trump administration made the case that its proposed rules to amend it complied with those provisions, it still found itself struck down by the courts. If the U.S. Supreme Court fails to reverse a lower court’s adverse decision on this matter, the only way to stop this abuse once and for all will be through congressional legislation.
In addition, while the Trafficking Victims Protection Reauthorization Act (TVPRA) of 2008 was created with good intentions, it has come to have perverse effects. Specifically, the TVPRA distinguishes between unaccompanied children (UACs) from contiguous and noncontiguous countries and treats them differently. UACs from contiguous countries like Canada and Mexico can be expeditiously sent back to their home countries, while UACs from noncontiguous countries are sent to the U.S. Department of Health and Human Services’ Office of Refugee Resettlement within two days.
This law also stipulates that UACs from noncontiguous countries are to be placed in formal removal hearings in the least restrictive setting, which has resulted in these UACs being routinely released to parents or family members in the United States. If this law is not amended, it will continue to encourage families in Central America to send unaccompanied minors on long, perilous trips to the United States.
In sum, much still needs to be done to fix our ailing and vulnerable asylum system, before we find ourselves facing new waves of asylum seekers on our border. It is no secret what needs to be done. What is lacking is the political will, especially in the United States Congress, to do it.