Tight Asylum Rules Protect the Homeland

As President Trump’s White House days dwindle, he’s taking strong action to shore up measures that will make the asylum process more secure, and less fraudulent.

The Department of Homeland Security issued a new set of guidelines which will go into effect nine days before President-elect Joe Biden’s inauguration and will ensure border crossers don’t bypass asylum in other safe countries specifically to gain U.S. admission. Most migrants deem the U.S. a nation that offers more generous affirmative benefit programs than other possible destinations, and is therefore a preferred landing spot.

For the most part, the updated DHS regulations will reinforce the existing “Remain in Mexico” directive and U.S. Code Title 42, which require that prospective border crossers, mostly from Guatemala, Honduras and El Salvador seeking U.S. asylum through the Southwestern border will first have to request asylum in Mexico. In March, the Supreme Court ruled that “remain in Mexico” could stay in effect.

President Trump’s critics call the new regulations “death to asylum“ and “draconian,” predicting that the revised rules will make it more difficult for migrants to pass a “credible fear” claim. Toughening up on unverifiable, hearsay credible fear allegations is a goal that every U.S. citizen should hail. Understanding why tighter asylum procedures are necessary, especially in light of assembling Central American caravans headed north, is important.

The website Immigration Equality explained that once a migrant arrives at a designated U.S. port of entry without a visa, he can claim that he fears returning home would endanger his life. At that point, an asylum officer must grant an interview, during which he will inquire about explicit fears. The asylum officer “presumes that the information gathered is all true.” If the asylum officer finds that a person does not have credible fear of persecution, ICE may remove that person.

But an asylum seeker has two more chances at a favorable ruling. He can challenge the asylum officer’s finding before an immigration judge, who will review from scratch the original finding, and then make a de novo decision. If the second judge also rules against the asylum seeker, a third re-interview or a reconsideration of the original finding may be requested.Although not often granted, the weeks and months that elapse between the first and third requests present ample time for the migrant to disappear into the general population, where his deportation likelihood is slim.

Tellingly, nearly 90 percent of those who claim credible fear when they arrive at the border pass the initial screening. But then, immigration judges grant asylum to less than 20 percent, and for Central Americans, the total drops to less than 10 percent.

Over the last several years, credible fear claims have soared as smugglers and immigration advocacy groups have taken advantage of legal loopholes that clog up the asylum processing system and, in the process, ensnare valid petitioners whose likely approval claims become backlogged for years. Through October, there were 1.3 million cases pending in immigration court, and 43 percent were asylum claims.

Most migrants come to the U.S. for economic or family reunification reasons, neither valid for asylum. In 2019, the anti-Trump, pro-immigration New York Times debunked migrants’ credible fear claims. In “More Migrants Are Crossing the Border This Year,” the Times story stated that “murder rates in the Northern Triangle countries have been declining in recent years, and economic imperatives are believed to be the most important push factor for the majority of recent arrivals.”

Given the evidence that the Times and immigration analysts have laid out, which cast doubts on credible fear allegations, objections to migrants staying in a safe country while the U.S. considers their asylum appeals are ill-advised and partisan.

Word that Biden will reverse President Trump’s policy that returns asylum seekers to Mexico has spread throughout Central America. Predictably, large migrant groups are traveling north or have formed at the border.

Biden would do well to leave President Trump’s safe nation policy in place until he comes up with a more manageable plan. Otherwise, Biden will begin his presidency coping with a chaotic border influx similar to the ones that plagued Obama’s administration in 2014 and 2016.

As Mark Morgan, the acting Customs and Border Protection Commissioner ruefully told The Washington Times: “The unfortunate groundwork for a new border crisis has already begun.

Joe Guzzardi is a Progressives for Immigration Reform analyst who has written about immigration for more than 30 years. Contact him at jguzzardi@pfirdc.org