Peter Costantini ~ Seattle
On February 23, the Biden administration posted online for public comment a new proposed rule entitled “Circumvention of Lawful Pathways” regarding asylum and other aspects of immigration.
Federal Register. “Circumvention of Lawful Pathways: A Proposed Rule by the Homeland Security Department and the Executive Office for Immigration Review”. Washington, DC: February 23, 2023.
https://govinfo.gov/content/pkg/FR-2023-02-23/pdf/2023-03718.pdf (official version)
https://federalregister.gov/documents/2023/02/23/2023-03718/circumvention-of-lawful-pathways
https://www.regulations.gov/document/USCIS-2022-0016-0001 (comments site)
The period for comments closed March 27, and the site lists a total of 51,952 comments received. The administration is now required to respond to these comments before implementing the final rule.
On March 8, I posted a compilation of comments from civil society and the media on this blog:
Biden administration asylum proposals echo Sessions and Miller
https://americasmigration.blogspot.com/2023/03/biden-administration-asylum-policy.html
I submitted the following comment on March 26.
Comment on “Circumvention of Lawful Pathways”
Peter Costantini
This comment presents an analysis of the proposed rule, “Circumvention of Lawful Pathways”, flags significant problems with several parts, and suggests ways that those issues could be resolved.
Summary
Implementing “Circumvention of Lawful Pathways” would violate the rights, increase the suffering, and endanger the lives of millions of humans displaced from their homes and forced to seek refuge in the United States.
Seeking asylum is a foundational human right, often straddling the border between life and death, guaranteed by international treaties and United States law. It is a protected regardless of where on the border or in a country migrants exercise the right – at or outside of ports of entry – or what countries migrants have emigrated from or are passing through.
“Zero tolerance” of requesting asylum between ports of entry with family separation as a punishment, and “transit bans” requiring immigrants to apply for asylum in other countries first, have both been tried unsuccessfully by the Donald Trump administration. Both were rejected by courts and human rights authorities, and the same advocates who took them to court then have already announced that they will challenge them again. Both are egregious violations of the right to seek asylum that have caused and would again cause tremendous harm to asylum seekers, and damage to the credibility of the United States as a defender of the rule of law. Both should be removed from the rule.
Any changes in policy must allow migrants from all countries to ask for asylum at ports of entry, between them, at airports and at any other point in the country, without restrictions. Special provisions allowing only citizens of certain countries to apply for asylum through new processes violate the equal protection and due process rights of asylum seekers from other countries with equally valid claims. Furthermore, limiting the number of migrants from any country to arbitrary quotas, requiring sponsorship in the U.S., and requiring them to use unreliable technology and procedures to claim asylum, all violate migrant rights and should be excised from the rule.
That said, positive incentives to seek asylum at ports of entry - whose capacities must be greatly expanded – are necessary and welcome. So is the introduction of new complementary pathways to asylum, along with other forms of authorized immigration, and processes to facilitate them. The critical caveat, though, is that these should never be used to deter people from following the established legal paths of face-to-face asylum seeking, on the ground or by air, at or between ports of entry. New incentives and processes should be used only to supplement existing ones.
“Circumvention of Lawful Pathways” seems to imply that the small number of asylum seekers granted asylum relative to those initially permitted to seek it in the U.S. system is an indication that most of those petitioners have no case for asylum, and might be trying to game the system. But in fact it has long been excessively difficult to achieve asylum because of the complexities and prejudices of immigration law. Of the hundreds of new immigrants I have met, I am not aware of any that were lawyers, much less understood U.S. asylum law. Precious few of them even have access to legal counsel. This victim-blaming implication is a perverse response to the obvious injustices inflicted on migrants by the Trump administration. It destroyed much of the asylum system and other components of immigration machinery, turning them into bureaucracies armored to deter all comers, corrupting and pressuring enforcement and judicial agencies into fast-tracking the punishment and expulsion of migrants. The tiny percentage of initial petitioners ultimately granted asylum has a great deal to do with the success of the Trump administration in building interlocking virtual walls, and very little to do with the actual qualifications of asylum seekers.
In providing context about the current immigration situation, some of the assertions made in the proposed rule are inaccurate and misleading. The numbers of unauthorized unique individuals detained at the border are far from an “all-time high” or a “record”. Through the much bigger, mainly Mexican migration of the late 1960s through the late 2000s, apprehensions of undocumented individuals were often higher. And successful undocumented entries into the U.S. – ultimately a more significant statistic – were ten times more numerous in 2000 than they have been in recent years. Since the onset of the Great Recession, by contrast, more unauthorized individuals have left the country than entered, and the undocumented population residing in the U.S. has shrunk substantially over the past 15 years. During the past couple of decades, the previous rough correlation between apprehensions or encounters and successful undocumented immigration has vanished.
These statistical upheavals reflect dramatic changes in the nature of most immigration: as attempts to enter the country undetected have plummeted, attempts to seek asylum, often from new countries, have grown. Yet despite these historic trends, some deceptive and fragmented enforcement statistics generated by Customs and Border Protection are being misinterpreted to greatly exaggerate the magnitude of the current migration and to distort its demographics and motivations.
On this side of the border, speaking of demographics, growth of the U.S.-born population is barely above 0 percent and continuing to decline, as births drop and the elderly population grows. Virtually the only population growth has been coming from immigrants for some time. Notably, the sharp reduction of migration at the beginning of the COVID-19 pandemic had negative effects on some parts of the economy. Yet the U.S. remains a low immigration country by international standards. And Mexico - long the primary source of immigrants - has been sending decreasing numbers most years as its birthrate drops dramatically, its population growth slows, its workforce ages, and the Mexican economy grows.
Given these trends, this country could easily integrate multiples of the current numbers of authorized immigrants. Far from being overrun by a massive “invasion” of “illegal aliens” at the southwest border, the U.S. economy, tax base, and society have long benefitted and could benefit more from increased immigration of all kinds.
The causes of the recent increases in attempts at migration, mainly legal asylum seeking, lie primarily in the Trump administration’s multi-pronged offensive aiming to build a virtual wall blocking all immigration at the border. It finally succeeded with Section 42, but only temporarily. The backlog created of immigrants trapped in often dangerous areas of Mexico and Central America, but unable to return to their homes and still hoping to reach the U.S., has grown tremendously over the past 6 years, possibly approaching a couple of million. The even larger cohort of over 6 million deportees over the past three administrations also includes many now seeking to return to families and communities in the U.S. Another major factor is, of course, the COVID-19 pandemic. It has exacerbated existing ravages of organized crime, official corruption, and political turmoil in many countries. Yet these economic and social damages are being repaired much more slowly in most of Latin America than in the U.S. Across the hemisphere, the pandemic has added significant pressure on many families to leave their homes and emigrate.
Just and functional immigration policies must take all these factors into account. They must be informed by accurate assessments of hemispheric conditions for migrants on the ground, and anchored in observance of human rights. They must treat migrants not as a problem to be solved or a security threat to be repelled, but as fellow human beings forced out of their homes, many escaping perilous circumstances and many displaced by the global economy or climate change, too many suffering from more than one of these. They bring benefits, capabilities, productivity and fresh blood to this country, and deserve fairness, respect and welcome.
Relevant laws and treaties
The Universal Declaration of Human Rights of the United Nations [1]
Article 14: “Everyone has the right to seek and to enjoy in other countries asylum from persecution. …”
Article 6: “Everyone has the right to recognition everywhere as a person before the law.”
Article 7: “All are equal before the law and are entitled without any discrimination to equal protection of the law.”
Article 8: “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.”
Article 9: “No one shall be subjected to arbitrary arrest, detention or exile.”
Article 10: “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.”
The United Nations Refugee Convention of 1951 and its 1967 Protocol [2]
The Refugee Act of 1980 (Public Law 96-212) [3]
United States Code, Title 8, Section 1158 (a) (1): “Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien's status, may apply for asylum in accordance with this section … .” [4]
Analysis
The proposed rule, “Circumvention of Lawful Pathways”, violates 8 USC 1158 and several of the human rights enumerated in United Nations treaties. The title itself implies that asylum seekers are circumventing lawful pathways by asking for asylum between ports of entry or failing to ask for it in countries they pass through on the way to the U.S. Both are untrue.
Any measure to stop immigrants from any country from requesting asylum anywhere in the U.S. – at ports of entry, elsewhere along the border, or inside the country – or forcing them to apply for it first in another country – is a denial of these human rights.
Those who enter a country anywhere, and with any status, and ask an official for asylum are not entering the country illegally or without authorization. Requesting asylum makes them documented, legal immigrants, whether or not they are finally granted asylum, regardless of the circumstances of their entry.
Lee Gelernt of the America Civil Liberties Union, a leading immigration attorney, told a Center for Migration Studies webcast that if the proposed rule is adopted, the ACLU and allied organizations will bring legal action against it. Trump’s “first asylum ban barred asylum for people who entered between ports of entry. … We challenged that with our partners and it was struck down by the 9th Circuit Court of Appeals. … This Biden administration proposed rule … disfavors people entering between ports. And that aspect we believe would be vulnerable for the same reason: that Congress has made a decision that it doesn’t matter how you enter the United States, you must have access to asylum.” Another aspect of the proposed rule, Gelernt said, resembles the Trump administration’s “transit ban”, which required migrants in transit to apply for asylum in third countries they travelled through before they could apply in the U.S. “That was also struck down by the Court of Appeals of the 9th Circuit unanimously. … The core rationale there was again that it was inconsistent with the laws Congress has enacted about asylum. … And so we think the Biden’s administration’s proposed rule is absolutely unlawful. We welcome additional legal pathways to apply for asylum. But they cannot be a substitute for the basic right and mechanism for applying for asylum, which is: you escape danger, you get to U.S. territory, … you have to be allowed to apply for asylum.” [5]
Crossing between ports of entry
Circumvention of Lawful Pathways would penalize asylum seekers who cross the border between ports of entry, inaccurately labelling them “unauthorized”. It would do this by introducing a “rebuttable presumption of asylum ineligibility for certain noncitizens who enter the United States outside of a lawful pathway …”. But crossing the border to request asylum at or between or at ports of entry is in fact following a lawful pathway. As Gelernt put it: “Both international law and domestic law very clearly state that you have access to asylum at any place on the border.” [6]
In 2018, Jeff Sessions, Trump’s Attorney General and an outspoken white nationalist, tried to brand crossing the border between ports of entry to ask for asylum as illegal with what he called his “zero tolerance” policy. He punished over 5,500 immigrant children for legally seeking asylum by separating them from their families and intentionally making it harder to reunite them. [7] These actions were condemned by the last surviving prosecutor of the Nazis at Nuremberg as “a crime against humanity”, by Physicians for Human rights as a form of torture and forced disappearance, and by the U.N. High Commissioner for Human Rights as “government-sanctioned child abuse”. This administration has been making a good-faith effort to reverse this and reunite all these families, although as of September 2022 over 900 remained separated. [8] However, by proposing renewed penalties for requesting asylum outside of ports of entry, the administration would be implicitly ratifying Sessions’ false rationale for inflicting suffering on those families.
The proposed rule would also effectively extend for many migrants the indiscriminate expulsions of Title 42, even after the official termination of the pandemic emergency, now scheduled for May. Title 42 of the U.S. Code, the Public Health and Welfare, gives public health officials special emergency powers during a pandemic to limit the spread of disease. When invoked by the Trump administration in March 2020, was widely debunked as an asylum ban masquerading as a public-health measure. In practice, Trump’s operatives used it to officially slam the border shut. Title 42 served as a virtual cattle prod enabling the Border Patrol to summarily expel virtually all migrants, including families and children, at and between ports of entry, without allowing them to request asylum or any other protection. They did not have to be brought into border facilities and formally processed, so they could be sent back across the border within a matter of hours rather than the matter of days or weeks normally required for those not granted refuge.
Trump’s point man on immigration, Stephen Miller, reportedly tried to politically strongarm the Centers for Disease Control and Prevention into portraying the shutdown as a response to the COVID-19 emergency. According to the Associated Press, when the top doctor charged with pandemic response objected that there was no valid public-health reason for such an order, Vice-President Mike Pence went over his head and pressured CDC director Robert Redfield into issuing it. [9]
Dr. Anthony Fauci, advisor to Presidents Trump and Biden, disputed the public-health logic of Title 42 in 2021. “Let’s face reality here," he told CNN. “The problem is within our own country. Focusing on immigrants, expelling them ... is not the solution to an outbreak.” Asked whether he believed immigrants are a “major reason why Covid-19 is spreading in the U.S.,” he responded, “Absolutely not.” [10]
Many of the public-health experts at the CDC also criticized the use of a political measure they said had no public-health basis. They were backed up by an international outcry of public-health and human rights specialists criticizing the use of the law to exclude asylum seekers. “The Trump administration has misused public health authority as a ploy to attempt to justify expulsions that endanger human lives,” observed Monette Zard of the Columbia University School of Public Health. [11]
United Nations High Commissioner for Refugees Filippo Grandi criticized the summary expulsions under Title 42 of hundreds of thousands of people without screening for their protection needs, and cautioned that “measures restricting access to asylum must not be allowed to become entrenched under the guise of public health.” Grandi called for the U.S. government “immediately and fully to lift its Title 42 restrictions. … Guaranteed access to safe territory and the prohibition of pushbacks of asylum-seekers are core precepts of the 1951 Refugee Convention and refugee law.” [12]
Transit through a “third safe country”
Circumvention of Lawful Pathways would require migrants traveling to the southwest border to seek asylum in countries they pass through. The proposal would create a “rebuttable presumption of asylum ineligibility for certain noncitizens who enter the United States … without first seeking protection in a third country in the region that they have traveled through”. For many migrants at the southwest border, this would likely be Mexico, and for some Guatemala – countries where security conditions for migrants do not remotely resemble a “safe third country”. Migrants through both frequently face threats and violence from organized crime and corrupt officials. This measure would be similar to rules proposed by the Trump administration, which were rejected by a court in a lawsuit brought by human rights groups.
The proposed rule would also discriminate against asylum seekers from many countries by setting up forms of asylum access available only to certain nationalities. The implicit assumption behind this provision seems to be that most immigrants from some countries – particularly Mexico and the Northern Tier countries of Central America – are not legitimate refugees, while those from certain other countries – mainly Nicaragua, Venezuela, Cuba and Haiti – deserve more credence for their claims based on their nationality. This violates the principle of U.S. and international law that all refugees and asylum seekers have a right to a hearing based on their personal cases and circumstances, not unwarranted generalizations based on nationality, ethnicity, race or gender. And it runs counter to the universality of the rights to due process and to equal protection for citizens and non-citizens alike, as specified by Articles 6 through 10 of the Universal Declaration of Human Rights.
CBP One app
This administration has released a cell-phone app called “CBP One”, and Circumvention of Lawful Pathways requires its use in applying for asylum at ports of entry. Unfortunately, it is reportedly riddled with bugs, must be used in areas without sufficient network access or bandwidth, requires people who have often lost their possessions and money to find a smart phone and a data provider, and appears to provide access to a cruelly inadequate number of appointments with immigration officials.
Organizations working with migrants have given the app negative reviews. The National Immigration Justice Center commented: “The CBP One phone app, which the administration expects asylum seekers to use to schedule appointments in advance to request protection at ports of entry, already has proven to be ineffective, dysfunctional, and biased on the basis of race.” Washington Office on Latin America highlighted the problem of “a very small number of available appointments”, and many users have been
frustrated to find that by the time they can log on and enter their information early each morning, all appointments have already been taken.
How to develop software and processes that actually fulfill their functions for users is no secret. Start by adopting best practices from software producers. Develop the app incorporating industry standards of user-experience research, design, engineering, and program management. Beta test the app with a range of actual users in actual conditions of border areas of Mexico and elsewhere. Identify the different workflows a variety of users will have to follow, and how they actually use cell phones; test these, not simply technical performance. Handle issues of literacy and languages, and translate the UI into more languages used by many migrants. Work with the International Organization for Migration, the Mexican agency COMAR, and non-governmental organizations such as shelters to provide ways, such as protected kiosks, for migrants trapped in dangerous Mexican border areas with few to no resources to get access to cell phones and data connectivity. Add voice communication alternatives for those with minimal literacy or who cannot access data. Perhaps most important, scale up staffing with enough asylum officials to handle all the appointments booked by the app without delays.
Apps are not magic. The best online processes can only complement, not eliminate, the ability to access asylum officials on-the-ground and face-to-face. And no app can compensate for inadequacies of the human processes to which it connects users. This legal proceeding, asylum, is often a matter of life and death – many potential users are trapped in borderlands as dangerous as a war zone – so both the software and the wetware must be made seamless and treated as mission-critical.
Passports and sponsors
The requirements that asylum seekers from certain countries must have a passport from their home country and a sponsor in the U.S. are burdensome stumbling blocks that the proposed rule gratuitously places in the way of asylum seekers. They contradict the spirit, letter, and practice of asylum and refuge over the past half-century. Most asylum seekers from Latin America probably do not already have passports, and obtaining them is often not possible, and sometimes even dangerous, when governments are corrupt or repressive and in situations of political turmoil. Likewise, only the fortunate who are not fleeing for their lives and who happen to have family or friends in the U.S. capable of economic sponsorship can find sponsors in advance. These requirements discriminate against the economically disadvantaged, and should not be imposed on any asylees.
Difficulties of seeking and gaining asylum
It has long been difficult to obtain asylum at the U.S. southwestern border. Over the five years from FY 2017 through FY 2021, grants of defensive asylum (the only kind available at the border) amounted to only 1.8 percent of unique individuals detained. And even as a percentage of referrals to immigration courts for asylum, approvals came to only 4.7 percent.
However, to suggest that these miniscule proportions were the result of a fair process and a shortage of migrants who qualified for asylum is to ignore the Trump administration’s virulence. It destroyed much of the human and physical infrastructure of the asylum system and weaponized much of the larger immigration system against all immigrants.
Trump didn’t have an immigration policy: he had an ethnic cleansing policy. His long-term goal was to end all immigration to the U.S. from Latin America, Asia and Africa, where 80 percent of migrants come from, and to kick out as many immigrants already here as possible. The well-documented white sado-nationalism of the ex-president and his immigration cadre was embodied in an ideological motive: to prevent or delay the delusory menace known as the “Great Replacement” of white people by darker-skinned people, which the great majority of immigrants are. And Trump was successful at implanting his co-religionists into various levels of the Department of Homeland Security and other agencies.
As historian Mae Ngai of Columbia University told me in an interview: “I think there’s too many brown people in this country for their tastes — that’s what it all comes down to.” [13]
This scapegoating of immigrants and other people of color is a crowd pleaser for much of the growing global movement of fascism redux. Parties of this stripe have won power in Italy, Hungary and Russia, and made major electoral gains in France. Some branches of traditional European conservatism, such as the Tories in the U.K., have pandered to their far right by adopting extreme anti-immigrant policies, such as criminalizing some modes of requesting asylum and deporting rejected asylum seekers to Rwanda. Does the Biden administration really want to revive rejected Trump policies and join his international allies in immigrant bashing?
Asylum law provides protection for certain categories of displaced people at risk. The 1951 Refugee Convention defines a refugee or asylee as “someone who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion.” [14] In practice, though, asylum law is extremely complicated. Even with a knowledgeable immigration attorney, many seekers may not be able to qualify, according to New Mexico immigration attorney Allegra Love. [15] People with strong cases of persecution may nevertheless not be able to obtain evidence of that from the corrupt police department that persecuted them, or the gang that killed their brother and also controls the local government. Even if they can, they may lose evidence or have it stolen en route, at the border, or in the U.S. detention system (as I’ve heard from some immigrants). Of course, there will always be some people without grounds for asylum who will make up a story, as with any legal process. But virtually none of them will understand the U.S. laws and few will have attorneys or evidence, so the probability that they will gain asylum is negligible.
The proposed rule also seems to accept the assumption that there is always a clear distinction between “economic migrants” and asylum seekers or refugees. But this is often not an either-or matter: persecution and poverty tend to be mutually reinforcing. When people in lower-income countries are forced to leave their homes, there are often forces both persecuting them and depriving them of their livelihood, and they are frequently intertwined. When a mara kills a business owner for not paying protection money, the employees of the business may not have been personally threatened. But they have lost their jobs and may not be able to find others in a gang-controlled area, so they may decide to leave. That could make them economic migrants in the eyes of asylum strict constructionists. But they probably will have a very reasonable fear of persecution if they stay. Conversely, when poor farmers in an area are wiped out by a hurricane or drought, an international mining or oil company may see an opportunity to acquire territory cheaply and a corrupt government may help them violently clear out the campesinos. They are clearly economic migrants because they can no longer make a living. But they are also being persecuted and have good reason to fear violence. Economic failures often lead to persecution, and persecution often thrives on economic failures.
Sometimes when I have asked immigrants why they left home, they say, “I couldn’t feed my family anymore”, stressing that they came to work, not take charity. But if you talk a little more, it may come out that they were the victims of cartels or domestic violence, which was why they couldn’t make a living any more. Virtually nobody leaves their home and community and risks their life getting to another country without good reason, whether or not they officially qualify for narrowly defined asylum or refugee status.
As a fair model, consider the treatment of Ukrainian refugees in the U.S. and many other countries. Ukrainians are victims of brutal aggression by Vladimir Putin’s regime, and they richly deserve to be accepted and sheltered without bureaucratic roadblocks. But Latin American refugees seeking asylum in the U.S., along with Afghan, Middle Eastern, African and other refugees, also deserve the same treatment without reservation. In many areas of Mesoamerica, the Caribbean, and South America, conditions can be as life-threatening and unlivable as in a conventional war zone. And in some of these places, the U.S. shares a heavy responsibility for nearly two centuries of violence, repression and exploitation under the banners of Manifest Destiny and the Cold War. We can begin to make amends by treating Latin American asylum seekers and refugees with the same respect and solidarity with which we treat Ukrainians. And we need to expand the core values of welcoming the stranger to all other immigrants, with confidence that doing good for them is also helping the whole country and the world to do well.
Magnitudes of immigration
There have indeed been increases in efforts to migrate to the U.S. during some recent years. But calling these trends “an invasion of illegal aliens” of “historic” or “record” proportions is just alarmist hyperventilation. Nevertheless, this is the message that reaches too many news consumers: undocumented immigrants are surging across the border in unprecedented numbers and overrunning the country, bringing crime and diseases, straining social services, and taking jobs. Much of this disinformation has been the red meat of the restrictionist right for decades, but Donald Trump added a grotesquely racist and xenophobic dimension: he was building a “big, beautiful wall” to stop all migrants coming from “shithole” countries like El Salvador and Haiti, although he had no problem with migrants from countries like Norway. [16] In White House meetings, Trump reportedly proposed shooting migrants in their legs to slow them down when they came across the border, electrifying border fences, and building a moat along the wall filled with snakes or alligators. [17]
There are many levels of deception and confusion in restrictionist narratives about immigration. A good place to begin to deflate them is with the question of how big undocumented immigration has actually been. The largest influx of migrants since World War I came north from the late 1960s through the late 2000s. About half were documented and half undocumented, and more than 16 million came from Mexico. [18] The U.S. population of Mexican origin, both immigrant and U.S.-born, grew to over 36 million. [19] Much of this migration was circular, back-and-forth movement to escape poverty in Mexico and meet labor demand in the U.S. In 2000, at one of its peaks, the Border Patrol reported more than 1.6 million apprehensions of undocumented migrants, and a Department of Homeland Security report estimated that some 2.1 million other undocumented crossings made it successfully into the U.S. undeterred. The report also found a comparable number of successful crossings in 2005. [20]
As enforcement grew more militarized and repressive, it pushed migration routes out away from cities into wilder stretches of desert and river. Prices for polleros shot up, and Mexican cartels, seeing a new potential profit center, asserted their control over nearly all border zones. They now smuggle or tax nearly every migrant who moves through, often extorting, kidnapping, trafficking or murdering them. Faced with these sharply increased costs and dangers, many undocumented travelers began to go back and forth less often. Growing numbers tried to bring their families north to settle together into homes and communities in the U.S. [21]
After 2005, the rate of successful undocumented crossings yearly declined sharply. From 2000 through 2020, undeterred undocumented entries across the southwest border dropped 91 percent, from 2.1 million down to 200 thousand, according to the DHS study. [22] The undocumented population in the U.S. continued to grow until 2007 and the onset of the Great Recession, when it peaked at 12.2 million. [23] But since then, the total undocumented population has been shrinking significantly, and by 2020 it had dropped to 10.3 million, [24] a decline of 15.6 percent. The Mexican undocumented population in the U.S. fell even more abruptly, from 6.9 million to 4.9 million, or 29.0 percent. Central Americans came in much smaller numbers than Mexicans, but their population increased over this period, and other groups, particularly south and east Asians, grew as well. Now, rather than trying to cross the border undetected, most undocumented immigrants are arriving by air and overstaying vacation or other temporary visas. [25] So rather than a massive invasion of the undocumented, there has been a net exodus of them out of the country for the past 15 years and shifts in the population from Mexicans to Central Americans and other nationalities.
These changes from 2000 to today are partly due to the series of recessions and slowdowns in the U.S. economy beginning in 2000 and ending with the Great Recession in 2008, to the much-increased difficulty of entering the country without documentation, and to the changing composition of immigrants’ nationalities and propensity to seek asylum.
The nature of southwest border migration has also changed dramatically. In 2000, there were very few asylum seekers – who, remember, are not undocumented immigrants. By 2020, asylum seekers were a major part, possibly a majority, of those crossing the border, but because nearly all immigrants were pushed back immediately by border officials under Title 42 without a chance to ask for asylum, numbers of would-be asylum seekers were not recorded. Still, it was clearly a very different situation at the border: in 2000, millions of people were attempting to cross without authorization, most of them evading the Border Patrol and making it into the U.S. successfully; in 2020, a few hundred thousand people were trying to follow a legal path across the border by surrendering themselves to the Border Patrol and asking for asylum, but being shut out summarily and pushed back to Mexico, usually within hours.
There is also another level of retail deception distorting the publicized numbers of migrants attempting to cross the border. The commonly cited big numbers of undocumented immigrants encountered need to be revised for two reasons: the number of repeat attempts needs to be subtracted to find the number of unique individuals; and the number of asylum seekers, who are following a legal path, needs to be subtracted to reveal the number of unique undocumented individuals.
The number reported most visibly by CBP and usually cited in news reports is “encounters”. This statistic is the total number of apprehensions or expulsions of immigrants at the border and rejection of “inadmissibles” at ports of entry. But encounters are not the same as the number of unique undocumented immigrants. Many rejected migrants try again to cross the border, sometimes multiple times, and if these new efforts occur within a year, each is counted as separate encounter. Under Title 42, the expulsions generally happen within a matter of hours, whereas before it usually took days or weeks, so the percentage of repeat attempted crossings by an individual within a year – “recidivism” in CBP parlance – more than doubled after March 2020, according to CBP figures, to slightly over 25 percent.
Failing to subtract repeat encounters exaggerates the size of the migration considerably: from 2020 through 2022, the number of unique individual migrants is only three-quarters the number of encounters. CBP recognizes this distinction in its monthly letters on the southwest border, but in the main statistical listing, it shows only raw encounters, and recidivism is buried at the bottom of a different report.
Doing the arithmetic for the past three years under the pandemic:
2022: 2.378 million encounters - 25 percent recidivism rate = 1.784 million unique individuals detained.
2021: 1.735 million encounters - 27 percent recidivism rate = 1.266 million unique individuals detained.
2020: 0.458 million encounters - 26 percent recidivism rate = 0.339 million unique individuals detained.
These numbers also need to be adjusted for the second issue: as we have seen, asylum seekers anywhere at the border are authorized, documented immigrants on a legal path, so they need to be subtracted from the numbers of unique undocumented individuals.
This can only be an estimate for the past three years, because during the pandemic and under Title 42, all migrants were pushed back without a chance to ask for asylum, so no numbers of asylum seekers were recorded. Even before March 2020, not all asylum seekers were apparently counted: those expelled by border or asylum officials before being granted an immigration court hearing don’t seem to be tallied anywhere by CBP or DHS. The Justice Department’s Executive Office of Immigration Review has tracked asylum cases received by immigration courts for some years, so I have used the average percentage of unique individuals referred to immigration courts for asylum from FY 2017 through FY 2020, 34.1 percent, to estimate a lowball figure for unique individuals who are clearly authorized and documented, and who must be subtracted from unique individuals to give a necessarily high estimate of unique undocumented individuals.
2022: 1.784 million unique individuals detained – 34.1 percent = 1.175 million unique undocumented individuals detained
2021: 1.266 million unique individuals detained – 34.1 percent = 0.834 million unique undocumented individuals detained
2020: 0.339 million unique individuals detained – 34.1 percent = 0.149 million unique undocumented individuals detained
For each of these years, the final adjusted number - unique undocumented individuals detained – is half or less than the raw number of encounters. And the real number is probably lower yet for two reasons. First, the number of asylum seekers referred to immigration court is only a portion of those initially recognized as possibly having “credible fear” at the border, so the full percentage in the asylum system must be higher, but those statistics don’t seem to be available. Second, the recidivism rate is probably higher than the CBP figures: reports by the Government Accounting Office [26] and the Office of the Inspector General of DHS [27] both criticized how the Border Patrol records identities, which are necessary to calculate recidivism, and the GAO report estimated that the actual recidivism rate was twice as large as the official figure.
One more statistic should be calculated using these encounter figures: the three pandemic years, 2020 through 2022, should be averaged to get a sense of the total magnitude of people coming to the border during the pandemic. In March 2020, when the pandemic was officially declared, a large majority of Latin Americans who may have been planning to go north stopped coming. A deadly, poorly understood disease and a U.S. economy bottoming out at nearly 15 percent unemployment was enough to make hundreds of thousands of people stay home or at least postpone their plans, and on top of this Trump imposed a blockade of all immigration with Title 42. But as the U.S. economy rapidly improved, a vaccine for COVID-19 was created, and the news highlighted shortages of “essential” workers in many kinds of jobs done by immigrants, this reserve army of immigrants rejoined newly displaced families in the larger northward migrations of 2021 and 2022.
So averaging those three years, FY2020 through FY2022, yields 719,613 unique undocumented individuals detained yearly. This is only slightly more than the adjusted figure for 2019, the last year before the pandemic, of 695,776.
These ways of quantifying undocumented unique individuals apprehended at the southwest border yield numbers higher than the years prior to 2019, but probably overstated for the reasons explained above. More importantly, they are clearly not “records” or “historical” highs. The 2000 CBP figure of 1,643,679 apprehensions of undocumented migrants, needs to be adjusted by adding inadmissibles from the ports of entry, which are included in encounters, and then by subtracting recidivism. Neither was tracked by CBP that long ago, but we can estimate 15 percent for each. Since there were very few asylum seekers then, the total for undocumented unique individuals for 2000 computes to 1,606,696. We should also adjust it for the increase in U.S. population between 2000 (281.4 million) and 2022 (333.3 million) of 18.4 percent, according to the U.S. Census Bureau. Factoring in relative populations gives a better measure of the impact of the immigration on the country than the absolute numbers. Multiplying by this population growth figure yields a 2022-equivalent figure of undocumented unique individuals for 2000 of 1,903,027. Although all these numbers are rough estimates, this one is clearly far larger than the estimate of 1,175,186 undocumented unique individuals for 2022.
Calling recent raw encounter figures “a record” or “historic”, then, given the difference in the meanings of the numbers and the changed realities of immigration, is clearly misleading and should be discouraged.
Beyond the layers of retail deception around immigration statistics, there is a persistent wholesale deception also promoted by Trump: the idea that the country is “full” and could not absorb any more immigrants.
On the contrary, demographic trends are increasing this country’s capacity to comfortably absorb many more asylum seekers, refugees, and other immigrants. “If anything, the nation is sputtering from historic demographic stagnation,” according to researcher William H. Frey of the Brookings Institution. [28] Our birth rate has dropped and our death rate has risen as gray hair and arthritis overtake the Baby Boomers and the elderly population increases. Total population growth in 2018 was 0.62 percent, or less than two-thirds of one percent. [29] The growth rate of the U.S.-born was a third of one percent, around half of the total, and is projected to continue declining. The other half was from net immigration. In 2021, total population growth hit 0.2 percent, a record low. It bounced back a bit in 2022 to 0.4 percent, but almost four-fifths of that was from net immigration. [30] Without immigrants, who tend to be younger, the population would likely soon be shrinking.
On an international scale as well, the U.S. was a low-immigration nation well before Trump. Canada and Australia have long accepted far more immigrants per capita, as have many countries in Europe. [31]
From an economic perspective, the U.S. gross domestic product was growing at an average of 2.4 percent annually over the five years before the pandemic – far faster than the population. Post-pandemic unemployment has returned to historic lows. [32]
Three years of COVID-19 have demonstrated that our economy demands and benefits from large numbers of immigrant workers. This has been particularly visible in sectors that have experienced reductions in “essential” workers, many of whom are foreign-born. In agriculture, shortages of immigrant workers, caused partly by Title 42’s blockage of nearly all immigration, appear to have contributed to the reduction of supply of some foods and resulting inflation of prices. [33]
Pandemic and other restrictions on immigration have effectively halted the influx of most immigrant workers for the past four years. According to economists Giovanni Peri and Reem Zaiour, this has left roughly two million fewer immigrants available for the U.S. workforce than would be expected given pre-pandemic trends. “[T]his dramatic drop in foreign labor supply growth”, they wrote, “is likely a contributor to the current worker shortages”. [34]
The past few decades have demonstrated in practice that documented and undocumented immigration have overall positive effects for U.S. workers and consumers at all of the economy. Most labor unions, from the AFL-CIO on down, and civil rights organizations oppose Trumpist immigration policies and advocate for solidarity with the labor rights of all workers regardless of immigration status. [35]
Many historians and economists have concluded that the massive 40-year immigration of primarily Mexican migrants that ended with the Great Recession created net economic and social benefits for all of U.S. society. Three economists won the 2021 Nobel Prize in Economic Sciences for decades of work creating methodologies to verify and quantify those gains. [36] For the much smaller migration now underway, there is no reason to doubt that it will also be good for all economic strata of this country.
Causes of immigration
Recognizing these layers of statistical malpractice, it is still clear that migration has increased substantially during the past two years.
However, if Trump had started out in 2017 by taking the money that he wasted on symbolic but functionally useless things, and instead spent it on dealing fairly with the actual kinds of migration taking place, we would not be facing anything like the current mess at the border. His spending request for “the Wall” in 2019 alone was $6.7 billion; [37] he burned nearly $1 billion annually sending military forces to the border; [38] and he blew $2.5 billion on incarcerating immigrants in private prisons: [39] there went a total of $10.2 billion dollars down the drain.
With just half of that budget, $5 billion, Trump could have hired 800 more immigration judges, tripling the total, for $240 million; [40] brought on another 2,000 asylum officers, case managers and support personnel for $400 million; [41] spent another $1 billion on expanded facilities and operations for all of them; and allocated $360 million to support local governments and non-profits working with immigrants. All of these would have totaled $2 billion, leaving another $3 billion for a down payment on a Marshall Plan for Mesoamerica and the Caribbean Basin. The remaining $5 billion could have been set aside as a reserve for expanding existing programs as new needs arise and other future contingencies.
Had Trump taken this approach, the border region would probably not have faced the current manufactured “crisis”, just a manageable increase in asylum seekers driven by the real crises in Mesoamerica and the Caribbean Basin, amplified by the pandemic. And southwest-border immigration might have receded as a hot-button issue.
But of course, Trump’s political mojo depended on his signature applause lines on immigration. So he cluster bombed major parts of the immigration system and sowed the ruins with salt. He started setting up barriers with his Muslim bans. “Metering” and “turnbacks” at ports of entry coupled with “zero tolerance” and family separation in between, Remain in Mexico and all the other pre-pandemic measures stranded perhaps several hundred thousand migrants in Mexico. Then Title 42 slammed the door and summarily expelled all migrants at the border back to Mexico without no hope for asylum. For the first three years, from March 2020 through February 2023, CBP counted well over 2.6 million Title 42 expulsions; applying the official “recidivism” rate of roughly 25 percent for repeats of the same individual during the preceding year, just over 2 million unique individuals were expelled. A large number of them were probably trying to ask for asylum, and are likely waiting somewhere in Mexico or Central America for a chance to try again.
So all told, Trump’s policies, and the Biden administration’s two years of failure to terminate some of them, have bottled up a large number of migrants in Mexico waiting to try again, let’s say between one and two million. And don’t forget the 6 million deported by the Trump, Obama and Bush administrations . [42] For more than half, the maximum penalty period of ten years wait after deportation before they can try again to enter legally will have passed. Together, these two groups add up to perhaps 4 million. Many have no doubt settled in Mexico or gone home to other countries. But plenty of others are likely waiting to rejoin families and communities, or to try to make a new life in el norte.
A big part of the increased numbers at the border, then, is these long-suffering victims of the U.S. immigration follies. The other major factor driving migrants has been the COVID-19 pandemic.
For Latin America, the pandemic has been a public health and social cataclysm. Its medical ravages and the ensuing economic crashes have been more severe and longer-lasting than in the U.S. These in turn have exacerbated the official corruption, organized crime, climate catastrophes and other root causes driving people to migrate.
The pandemic caused a 2020 drop of 6.9 percent in Latin America’s regional GDP, the biggest in seven decades, and slow growth is predicted through 2022 and 2023. Unemployment for the region overall came down to 7.3 percent in 2022, a strong recovery from a spike of 10.1 percent in 2021. [43] However, it remained well above the U.S. jobless rate, which has settled well below 4 percent. For most of the pandemic, economic, medical and social emergencies pressured many to leave their homes to survive. Many previous migrants from countries such as Haiti and Venezuela who had settled in stronger economies, particularly Columbia, Chile and Brazil, faced resentment and harassment when times turned bad, and emigrated northward under duress.
The numbers of those migrants driven by aftershocks of the pandemic and those trapped in Mexico by Trumpist policies seem to be gradually declining. But the Biden administration should devote much
more effort to providing refuge for them, rather than repeatedly trying to push them back and lock them out. It’s to the benefit of all of us to encourage infusions of fresh, dynamic human resources and capacities into our society.
Recommendations
These recommendations are practical suggestions constrained by existing conditions and laws. But they might begin to bend the arc of the asylum system towards recognizing the current realities of immigration and the human rights of those coming to the U.S. They must be seen as parts of a broader initiative to tear out the rot from the old U.S. immigration system and to rebuild it into a force for justice that protects new and old communities and fosters human mobility for the benefit of all.
Title 8
Reinstate the pre-pandemic asylum process under Title 8 for all asylum seekers at the southwest border and elsewhere, including individual adults and families along with unaccompanied children.
Ports of entry
Re-open all ports of entry to asylum seekers and others, and provide expanded facilities and positive incentives for migrants to use them. But at the same time, safeguard the rights of migrants asking for asylum between ports of entry by creating safe crossing places where asylum seekers can turn themselves in to Border Patrol officers without having to risk their lives in the river or the desert.
Asylum officers
Rapidly scale up the number of asylum officers, Office of Field Operations officers, and support staff, and build out sufficient facilities for them.
Asylum deadlines
Extend the Credible Fear and Asylum Processing Rule [44] to cover all asylum seekers and to permit merits interviews by asylum officers at all USCIS offices. Most importantly, eliminate the “streamlined removal procedures”: give all not granted asylum by asylum officers a fair hearing in immigration court. It is also critical to remove the onerous deadlines imposed on immigrants to find legal counsel and to obtain probatory documentation from their home countries or other necessities for their case. Make the time frames for migrants much more flexible - do not try to speed up asylum processing at their expense. Look for ways for asylum officers, courts and government attorneys to increase efficiency and reduce bureaucratic delays on their side, without imposing temporal quotas of cases or pressuring for rejections, as the Trump administration did. Justice with a stopwatch is too often justice denied, especially for asylum seekers and refugees.
Case management
Scale up the reinstated Family Case Management Program, originally piloted under Obama and terminated by Trump, to work with all asylum seekers and other immigrants released from custody. [45]
Detention
Eliminate detention of accepted asylum seekers waiting for hearings, except for serious, recent criminal records and flight risks. Stop using ankle monitors; instead, use cell phone apps and in-person contact for those not released on their own recognizance.
Immigration courts
Hire and promote many more immigration judges and support staff. Eventually, move the Executive Office of Immigration Review from the Department of Justice to the judicial branch. As long as it is under the DOJ, better insulate immigration judges from political pressures.
DOJ accredited representatives
Expand the Department of Justice’s accredited representative program, which trains and certifies non-attorneys to represent immigrants in immigration court, as a means of relieving the extreme shortage of legal counsel for migrants.
CBP One app
Make the CBP One app an optional way to request asylum. Field test the app in Mexico and other countries, and release version 2.0 based on actual user needs and feedback. Increase bandwidth to handle growing traffic, and provide kiosks at shelters and other safe sites. Add telephone call centers as backups. Scale up staffing to handle many more appointments and to accept continuing face-to-face asylum requests.
Safe spaces in Mexico
Provide widespread means to remotely access asylum in Mexico and other sending countries, working with the International Organization for Migration, non-governmental organizations such as shelters, and government agencies such as COMAR. In conjunction with these organizations, create safe spaces around ports of entry and other areas of the border used by migrants in transit or waiting.
Passports & sponsors
Do not require home-country passports or U.S. sponsors for any asylum seekers. Encourage more non-governmental community and humanitarian organizations to become sponsors, and provide financial and logistical support to them.
Asylum at airports
Enable all seekers of asylum and other protections from all countries to fly from airports in their countries, or in Mexico, to airports near their ultimate destination in the U.S., and to request asylum by presenting themselves to asylum officers there. This could be done by providing special travel documents and by eliminating some economic restrictions on vacation and other temporary visas. The more asylum seekers who can fly into airports all over the U.S., the fewer who have to brave the dangerous Mexican borderlands, and the less pressure on government and non-profit immigration and support agencies on both sides of the border.
Affirmative asylum
Eliminate defensive asylum (“guilty until proven innocent”) and institute affirmative asylum for all cases.
Temporary Protected Status
Expand TPS to include more countries, longer periods of protection, and a potential path to citizenship at the end. Apply TPS more widely where asylum may not be available, such as in cases of widespread natural disasters.
Aid to local immigrant support groups
Immediately provide more aid to cities, counties, and non-governmental organizations, at the border and beyond, that are aiding increased numbers of asylum seekers. Use FEMA and DHHS, not the National Guard.
Statistical and organizational reforms
Audit CBP and DHS record keeping and calculation of enforcement statistics, especially encounters, “recidivism” and all stages of asylum seeking, and correct the well-known problems. Make all DHS, DOJ and DHHS records and statistics available online in more usable and complete forms. Highlight the numbers of unique undocumented individuals encountered and the changes in the actual undocumented population living in the country, not raw encounters. Report asylum seekers along with refugees as categories of lawful immigration. Investigate current enforcement practices, especially at the border, and retrain CBP and OFO personnel where necessary.
The author
The first immigrant I ever met was my father, who crossed the ocean from Abruzzo to the Bronx as a boy of 12 in 1928. My mother was a Jewish native New Yorker, and I’m a hardy New York/New Jersey hybrid. I’ve been involved with immigrants as a relative and friend for most of my seven decades, and as a volunteer for the past four decades. For much of that time I’ve also written about them – as well as Mesoamerica and the Caribbean, international economics, labor and human rights. I’m now retired, after making my living for twenty years in blue-collar jobs, and for another twenty in technical positions in the software industry (including user experience engineering). My home has been in Seattle for the past half-century, and my heart has been all over the world.
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