Today, Explained - How to solve the asylum crisis

Episode Date: July 17, 2019

On Tuesday, the Trump administration dramatically changed the rules governing asylum. A scholar who has helped shape US immigration policy since the 1980s explains why the rule change won't solve the crisis. Learn more about your ad choices. Visit podcastchoices.com/adchoices

This week, July 15th through the 20th, is the Global Week of Inclusion. And the people over at Special Olympics are trying to break down barriers and end discrimination against people with intellectual disabilities. And they would like your help. You can join them in celebrating all abilities and creating a fully inclusive world over at jointherevolution.org. One more time, that website is jointherevolution.org slash explained. One more time, that website is jointherevolution.org slash explained. Any alien who is physically present in the United States or who arrives in the United States, irrespective of such alien status,

may apply for asylum. That's from the Immigration and Nationality Act. It was enacted in 1952. It lays out the fundamentals of asylum in the United States. If you're fleeing persecution, you can show up on U.S. soil and ask for asylum. You don't need papers. You don't need money. The process begins. But this week, President Trump changed the process in a fundamental way. Jen Kirby's been covering the news for Vox. On Monday, the Trump administration published this rule, which was to go into effect Tuesday, that basically, dramatically would restrict the people who could seek asylum in the United States.

Anybody who's coming to the United States to seek asylum won't be eligible for asylum unless they've applied for and been denied for asylum in a country that they pass through and route to the United States. So that would basically make most migrants, especially those coming from Central America, like Honduras, El Salvador, and Guatemala, unable to apply for asylum in the United States unless they first applied in a place like Mexico. And that would basically make anyone unable to apply for asylum unless they came from Mexico or somehow hopped on a plane. There are a few exceptions. Again, if you've applied for asylum in a country that you've passed through and been denied, or you're a victim of human trafficking, or one of the countries that

you as a migrant have passed through isn't party to a few of these international treaties regarding refugees. So it's a pretty narrow window, which again will make it really hard for the majority of the people who are coming from Central America to get asylum in the United States. Do we know how the countries that might be affected by this feel about it, namely Mexico, Guatemala, Honduras, El Salvador? So obviously the rule was just implemented on Tuesday, so the fallout is still revealing itself.

There was a report, for example, from NPR that talked to migrants who are seeking protection in the United States, and many of them said, this isn't going to change anything. People are still going to leave their home countries and it will just create a vicious cycle of people trying to find, you know, different places or ways to get out of the situations that they're in without any obvious solution. There was also a survey published in the Washington Post that basically said people in Mexico are starting to become a little bit dissatisfied with the current administration's policies toward migrants. And they're feeling some backlash towards unauthorized migrants coming through.

So you can definitely see how sort of the Trump administration's attempts to limit asylum seekers, to limit migration to the United States is causing ripple effects down south. So the rule was announced on Monday. It was implemented on Tuesday, just yesterday. How long was it in effect before someone challenged it in the courts? Challenges came pretty quickly. On Tuesday, there were lawsuits filed in California led by the ACL, and also in D.C. by immigrants' rights groups. The same way we got the first asylum ban blocked, this one's more extreme, and we hope to

get this one blocked as well. And they're basically saying that this violates U.S. immigration laws, as well as international law for protections of refugees. And they're saying that the government, in this case, the Trump administration didn't really follow proper protocols. This is a huge rule change to asylum, and they basically did it in 24 hours. So that's pretty fast. What else has the Trump administration been doing to make it harder for people to claim asylum at the border? Yeah, the Trump administration has tried a lot of different things.

Probably the most obvious right now is the remain in Mexico policy where the administration is sending back those who are awaiting their asylum claims to be processed in the United States. They're forcing. In response, Mexico has informed us that they will commit to implement essential measures on their side of the border to facilitate this process by providing humanitarian assistance. They've tried other things that have been blocked. For example, last year, they wanted to stop anyone from being able to ask for asylum if they didn't cross through a port of entry. And that was blocked. So the Trump administration has had some success in trying to kind of block people from getting asylum or asking for asylum, but they haven't been totally successful. So it will be interesting to see how this lawsuit plays out. And surely they were expecting the lawsuits, yeah? Yes. I'm sure the Trump administration expected to get sued. Did they say anything about the lawsuits that they were expecting? They wouldn't have published this rule if they thought there wasn't some legal

foundation. And, you know, the Justice Department, Attorney General Bill Barr, for example, you know, defended this as a lawful exercise. Do they have legal cover here? Do they have legal grounding? I mean, a lot of the critics of this new rule are saying that it flies directly in the face of the spirit and nature of asylum. I mean, that's really the argument of the groups that are suing. They're saying that, you know, Congress carved out certain exceptions for people who are seeking asylum.

They basically said, the only way you can't get asylum in the U.S. is if you have an agreement with a safe third country, which right now we only have with Canada, or if you're firmly settled in another country. And these groups are arguing that, hey, Congress made these exceptions. They didn't say anything about having to apply for asylum in a country of transit. So this rule is pretty bogus. The administration will probably try to fight that by saying, look, we're not saying that people can't get asylum in the U.S. We're saying they have to apply for asylum elsewhere before they come. And there's also another form of protection that isn't exactly asylum, but essentially there's a higher bar to

meet and it offers lesser protections, but it would say prevent somebody from being deported back to a country where they feared. So it's a higher bar for sure and definitely not as secure as asylum, but that's a way the administration might try to fight these lawsuits. And in the meantime, as of today, Wednesday, July 17th, this rule is in effect. People trying to come to the United States to claim asylum from Honduras, El Salvador, Guatemala, they have to first do it in Mexico or another third country. Yes, as of right now, the rule is in effect.

The Trump administration's new rule, love it or hate it, is an attempt to solve the immigration crisis at the southern border of the United States. After the break, a look at how the government dealt with a crisis on the very same border almost 30 years ago. I'm Sean Ramos for M. This is Today Explained. You may not have noticed, but we are midway through the Global Week of Inclusion right now. It's about halfway through July 15th through the 20th. Everybody likes to be included, and that goes for Special Olympics as well. During the Global Week of Inclusion, you can join them in celebrating all abilities

and creating a fully inclusive world by signing what they're calling the Inclusion Pledge. You can find it over at jointherevolution.org slash explained. Little life hack. It also works if you just type in jointherevolution.org. I went there. The jointherevolution.org Inclusion Pledge looks a little like this. I pledged to look for the lonely, the isolated, the left out, the challenged, and the bullied. I pledge to overcome the fear of difference and

replace it with the power of inclusion. I hashtag choose to include. And they ask for your first name, your last name, your email address, and your zip code because it looks like they want to keep in touch. It was a few weeks ago now that way too many Democratic candidates got up on stage in Miami to debate each other. But something from night one still sticks out to me. We need a Marshall Plan for Honduras and Guatemala and El Salvador so that people can find safety and opportunity at home instead of coming to the United States to seek it. Julian Castro was one of the few candidates to say, here's a plan to really fix this thing.

Invest a ton of money in Central America so that people want to stay. It's an idea. And President Trump this week proposed a very different idea. I asked Professor David Martin what we should make of these two very different ideas and a bunch more. He's advised several administrations on immigration, most recently Barack Obama's. He said it's important to remember that this isn't the first time the country's faced a crisis like this. In the early 1990s, the asylum system was overwhelmed. The asylum officers couldn't keep pace with their workload. More and more people were coming in, and the system's ineffectiveness just really invited more marginal or abusive asylum claims that tied up the system even further. What was going on in Central America at the time? Was it comparable to now where it's a lot of drug and gang related violence that was scaring people away?

What was the crisis? Well, this was more a period where there were still rebellions and civil wars going on. And a lot of, I guess one could almost say more old-fashioned kinds of sources of refugee flows, some actual armed conflict, but also repressive actions by different factions of the government. So it was more like the classic view of what a refugee is, is somebody who's fleeing a dictator who's trying to oppress people for their political opinion, or maybe for their race or ethnic group. And there were certainly genuine asylum seekers who came in and got asylum in this country, because they did have a well-founded fear of persecution based on, say, political opinion.

But then there were also others who could make use of one of these boilerplate stories. My brother was killed, and then I was being chased by somebody in a Ford Falcon, and I was told I was the next to be hit by the hit squads from the government or the paramilitaries, and I left. And for some people, that would be the outline of a true story. For a lot of people who were filing at that time, that was not, and it became evident at the time when they finally got to an interview. So what I'm getting at the time, the biggest problems were

the system was being overwhelmed, and people could lie their way through the system. Am I missing anything there? Well, they could at least concoct or use a boilerplate story to get into the system. And the key part is that once they got into the system, as the rules were at that time, unless their claim was found to be frivolous, they would get work authorization. And that's really the key, work authorization. They were supposedly weeding out of frivolous claims. The system was so overwhelmed, they didn't have enough officer time to look closely at any of the claims. So just the mere filing tended to

lead to work authorization. So what steps were taken to address these flaws in the system? The first step was to decouple work authorization from the mere filing for asylum. One could get work authorization if you were granted asylum, and we tried to set up a system that could do that quickly with meritorious claims. Otherwise, you wouldn't get it at all through the process. The second one was to make a close linkage between the asylum decisions, all the asylum decisions, and ultimately issuing a removal order for someone who did not qualify. Okay. Step one is decouple work authorization from asylum claims. Step two is do a better job of removing people who don't qualify for asylum. Anything else?

Well, one other key piece of making it work was to greatly increase the staffing. And that made it possible to eventually get on top of the caseload. One other element, just as a transition element that was very important and went on for a couple of years, was to take the newer applications first. And the main point there was not to be working with people who already under the old system had work authorization, but to try to send a message to people coming in now from the point of origin of the new system onward that if you file now and you have a good claim, fine. If you don't have a good claim, you're going to have a deportation order within six months. Okay, so how do these changes actually work? Do they function? Do they solve the crisis? They did. It took a while. They did succeed in discouraging people with weak claims from filing. The application level had been at 140,000 a year applications to asylum officers.

That number went down to 20 to 30,000 a year. That's a significant change. That was over a few-year period. Jumping ahead to the current crisis, you see President Trump taking a very different approach. Let's have everyone coming through multiple countries declare asylum at the first country they enter, also known as the third country, to keep things extra confusing. Yeah, this new policy has been in effect for only a few days, and there wasn't much advance notice to the general public or the stakeholders in this situation. So people are still scratching their heads over exactly what it will mean and how it will play out. For one thing, it doesn't completely bar protection claims,

even if people have come through other countries. We have a dual level system here. The administration seems to be gambling that all the talk about denying asylum quickly and right up front because you came through another country will keep people away. But I think before long, people will figure out, well, I'll still go in there because they're going to have to process my claim that I have this higher degree of threat in this country. So I think it'll have some initial value and initial impact in dropping numbers down. But I'm not convinced that it's really going to have an enduring impact. What about on the other end of the spectrum? You've got people on the left saying that all the detention centers should be closed immediately and seem to want to

accept nothing less. Would that help? No, that would be counterproductive. With this high number of people coming, it's not obvious that it's the most humane solution to just turn them loose on the street right away. You need some kind of accommodation. Most countries, when they have a significant influx of people, they create some kind of accommodation centers. Now, having said all that, detention doesn't have to look at all like what we've been seeing on the TV screens with people in surrounded by chain link fence and having only a shiny silvery mylar blanket to keep them warm. So I think some form of restricted movement, some sort of centralized facilities would actually be worthwhile and could be far superior to just processing people for a couple days. This is

really a system we seem to have now. Process people for a couple of days and then turn them loose to the local bus station and they have to find their way into the United States. That has been working only because a number of non-governmental organizations have made heroic efforts to meet people at the bus stations and help them in their confusion to try to find a place to go, whether it's to relatives elsewhere in the country or to some other assistance organization that can help them settle in while they're facing, as we have it now, maybe a two-year wait before they get a decision on their claims. What about all these ideas that fall between these two extremes, both the president of Mexico and, as I mentioned up top, presidential candidate Julian Castro

have proposed this idea of a Central American Marshall Plan? Well, the idea of a Marshall Plan, as discussed by the president of Mexico, is a wider package of assistance and support for the countries in Central America, and perhaps also for parts of Mexico, to provide opportunities there. One, to try to curb the violence in the source countries, and then maybe to provide a much wider range of thinking about regional solutions to these problems. And I think that's one of the really sad features of this recent announcement by the Trump administration of blocking asylum to anybody who's traveled through another country. That's going to initially throw a huge burden on the countries of transit. It's a kind of gut punch to the countries that we've been trying to get to cooperate in a broader solution.

And I think with the Mexican president's support, there have been opportunities for a much better look at a wide range of regional solutions that might involve some people settling in Mexico, might involve processing centers by United States officials even in a location along the route in Central America. Many of those kinds of things are possible, but funding and a real serious effort towards addressing the root causes is important. It would be costly, but it'd be money well spent if it really does help to reduce in a more lasting way the flow from Central America, because we're spending an awful lot of money right now in the processing here, and that's going to

continue. It sounds like what you're saying is that even if in some rosy future where the government is capable of tackling this in a very different way, more investment in Central America, more humane treatment of asylum seekers, detention and deportation will still be a part of the picture. It is important to do that. The system cannot work if it's just an open-ended system. We can use asylum, relocating people in this country as a part of the solution to the problems of Central alive, the population has to understand, the general public has to understand that it's subject to some control. It's not open-ended. That doesn't require a really low level of protection. It doesn't require zero admissions,

but it does require some sense that, yes, we're making deliberate decisions and we're acting on them. And people who don't qualify, they may be fine people, but they don't meet the standard. And at the end, it would need, in the end, it would need to involve some kind of detention as part of the process of actually removing the people who don't qualify. So it sounds like for people looking for an easy answer, there isn't one. Instead, it's just going to take a whole lot of different efforts and a whole lot of money spent. Yes, but let's don't exaggerate the money. It's going to be very costly if this flow continues. We need a stable solution, and we can do that. It's possible.

Three key elements. One, we've got to rebuild the capacity strategically to decide asylum claims, to decide them quickly and act on them. Either grant asylum or send people back who don't qualify. Secondly, we ought to make better use of detention, a modified detention, a detention that's much more humane, an accommodation center for families particularly, because that's going to be part of it and that would help to break the cycle of expectation where people think they can just come in and get work authorization. It would complicate that picture. And then thirdly, regional action, both with regard to root causes, something like that Marshall Plan that President of Mexico has proposed, and secondly, cooperation on processing, considering claims of persecution someplace in the region and also finding safe locations for people to settle,

not necessarily just in the United States, but perhaps also in Mexico. David Martin is a professor emeritus at the University of Virginia School of Law. He served as general counsel of the Immigration and Naturalization Service and as deputy general counsel of the Department of Homeland Security. He wrote a piece titled How to Fix the Crisis Caused by Central American Asylum Seekers Humanely, and you can find it at Vox.com. Before we go, one last reminder that this is the Global Week of Inclusion we are presently in. We are in it for a few more days. And during the Global Week of Inclusion, you can join Special Olympics in celebrating all abilities and creating a fully inclusive world. Head over to jointherevolution.org slash explained.

Join therevolution.org slash e-x-p-l-a-i-n-e-d to learn more. And one last reminder that this is not the only podcast in the world. There are many others you can listen to. One of them is called Keep It. It's hosted by a couple of guys named Ira Madison III and Louis Vertel, apparently the first of his name. They discuss the latest in the ever-colliding words of popular culture and politics. And each week, they're joined by comedians, journalists, actors, musicians, activists, and politicians. All kinds of people join them, including Kristen Bell, Mandy Moore,

Big Freedia, Busy Phillips. Episodes drop every Wednesday, and you can find it where you find your podcasts.