In court, at the border and through arm-bending negotiations with regional neighbors Mexico and Guatemala, the Trump administration has been devising elaborate new immigration measures to buttress against potential judicial setbacks and the possibility of a new migration surge this fall.
Late Friday, the administration announced a major new migration accord with Guatemala that would make the country a faraway repository for asylum seekers from other nations. It has been rolled out so hastily that U.S. lawmakers have yet to receive a copy.
Attorney General William P. Barr then cinched the asylum system tighter on Monday, issuing a ruling that makes it more difficult for applicants to seek protection when their family members face threats. Advocacy groups say the change could lead thousands of claimants to lose the ability to seek refuge in the United States.
The moves, amid a flurry of others in recent weeks, add to what increasingly appears as a complex, Rube Goldberg-esque system of enforcement and deterrence. The U.S. government has allowed itself to send Honduran and Salvadoran asylum seekers to Guatemala, to make Guatemalans wait in Mexico and to deport thousands of others who until recently could have qualified for humanitarian protection.
Homeland Security officials and the president’s defenders say the multitrack measures are reasonable stopgaps made necessary by Democrats’ unwillingness to fix festering, obvious flaws in the U.S. immigration system that smuggling organizations exploit with impunity. Knowing that families have an easier path to release in the United States, and that asylum claimants have rights once they touch U.S. soil, smuggling guides have seized on the opportunity: The number of migrants expressing a fear of persecution at the border and applying for asylum has soared in recent years, adding to a crippling backlog of more than 800,000 cases in U.S. immigration courts.
Border arrests have fallen about 40 percent since June 7, when the Mexican government agreed to start an unprecedented crackdown to avoid Trump’s threat of tariffs. But the number of migrants taken into custody remains at the highest level in more than a decade, on pace to approach 1 million arrests during the current fiscal year, driven by a record influx of children and families far more difficult to deport than single adults.
“If we can pass laws to fix this, that’d be the best thing, but Trump is trying to do it without the help of Democrats or the courts,” Sen. Ron Johnson (R-Wis.), chairman of the Homeland Security and Governmental Affairs Committee, said in an interview. “The word is out that the system is easy to exploit, and that’s why the numbers have exploded.”
The administration’s initiatives have triggered court challenges and several injunctions blocking them. But Trump officials bounce back by debuting new measures to diversify their enforcement efforts and put up new bureaucratic obstacles at the border even as others are knocked down.
Last week in San Francisco, U.S. District Court Judge Jon S. Tigar blocked the administration’s attempt to deny asylum to those who fail to seek refuge in another nation while transiting to the United States. Tigar, appointed by President Barack Obama, also halted a previous administration attempt to refuse asylum to those who cross the border illegally. The judge pointed to U.S. immigration statutes that offer broad protections to vulnerable groups seeking shelter from persecution, telling the administration it lacks the authority to override those laws by decree.
But within days of Tigar’s ruling, which the Justice Department has appealed, the Trump administration announced its asylum deal with Guatemala. And federal courts have allowed Homeland Security officials to continue the border-wide expansion of the “Remain in Mexico” program, or Migrant Protection Protocols.
That program requires asylum seekers to wait outside the United States — mostly in high-crime Mexican border cities — while their legal claims wend through U.S. immigration courts, a process that typically takes several months or longer. More than 20,000 asylum seekers have been sent back to wait in Mexico since January, according to the latest figures from Mexican and U.S. officials.
Those measures, combined with the Guatemala accord potentially allowing U.S. border agents to send asylum seekers there, give the administration multiple channels to reroute asylum seekers out of the country instead of releasing them into the U.S. interior.
Trump this week appeared to suggest his administration has been holding back from more aggressive enforcement measures, saying he has been waiting for Democrats to act.
“Despite the Democrats wanting very unsafe Open Borders & refusing to change the Loopholes & Asylum, tremendous progress is being made on the southern border,” the president tweeted Tuesday. “We all waited because we assumed the Dems would ultimately be forced to change the horrible Immigration Laws. They didn’t!”
The large field of Democratic presidential candidates generally has jostled over proposals to break with the party’s conventional views on border security — including the decriminalization of unlawful entry — while offering those seeking refuge in the United States a way to access the nation’s long-standing asylum protections.
Sen. Amy Klobuchar (D-Minn.) said in Tuesday night’s presidential debate that there is a will to change the rules in Congress, but she said it would have to be in a way that provides a pathway to asylum for those who are persecuted while also stemming the flow of migrants to the border itself: “I believe that immigrants don’t diminish America; they are America. And if you want to do something about border security, you first of all change the rules so people can seek asylum in those Northern Triangle countries.”
Sen. Elizabeth Warren (D-Mass.) says the nation cannot ignore established law — she said “laws matter” — noting that seeking asylum is not a crime.
“And as Americans, what we need to do is have a sane system that keeps us safe at the border, but does not criminalize the activity . . . of a mother fleeing here for safety,” she said.
As the immigration debate hardens ahead of the 2020 campaign, with Democrats denouncing the president’s border policies, the chances of a long-elusive compromise deal appear even more remote. That has left Trump officials increasingly outsourcing their most dramatic immigration enforcement efforts to other governments — and threatening to punish them if they don’t go along.
After more than 144,000 migrants were taken into custody along the southern border in May — the highest monthly total since 2007 — the president strong-armed Mexican authorities to deploy thousands of national guard forces to carry out immigration enforcement within their borders.
Cris Ramón, an immigration analyst at the Bipartisan Policy Center, said the episode reflected the president’s favored approach to dealmaking. “Trump likes one-on-one negotiations, that’s his forte,” he said. “With the Democrats, there are many points of entry, so there is less of a way to put pressure on individuals. But bilateral negotiations play to his strengths, and that allows him to take a more hard line position.”
With Mexico and then Guatemala, the president went straight for the kneecaps, threatening Mexico’s export-dependent economy with escalating tariffs and telling Guatemalans he’d revoke their visas and tax cash remittances sent by relatives working in the United States.
Both times, Trump got what he wanted, but they have left the United States more reliant on foreign governments to deliver U.S. enforcement goals.
The Guatemala accord appears especially fragile, and its operational details have yet to be mapped out. Protests flared this week in Guatemala City, where President Jimmy Morales was mocked as a U.S. lackey, and Guatemala’s highest court has ruled that the deal will require the approval of lawmakers. The country has a presidential election in two weeks, and the acting secretary of Homeland Security, Kevin McAleenan, is traveling to Guatemala on Wednesday to promote the deal and keep it from falling apart.
Homeland Security officials did not respond to requests for additional details about the accord, its cost, how it will be implemented and the number or nationality of the asylum seekers the United States plans to send to Guatemala.
The architecture of the administration’s enforcement system also appears to be wobbling in Mexico, where President Andrés Manuel López Obrador reiterated his opposition this week to a “safe third country” accord like the one Guatemala agreed to.
His administration pledged in the June 7 deal with Trump to begin working on a regionwide overhaul of asylum rules, but in comments this week Foreign Minister Marcelo Ebrard signaled that such measures would not be necessary because Mexico’s crackdown has reduced the flow of migrants to the U.S. border by nearly 40 percent in less than two months. Ebrard said U.S. authorities had made about 87,000 arrests in July, down from more than 104,000 in June.
Homeland Security officials declined to confirm those statistics, but if accurate, they indicate diminishing returns for Mexico’s enforcement efforts, while the number of border arrests remains at levels two to three times higher than during previous years for the month of July.
James Nealon, the former U.S. ambassador to Honduras who left his job as the top policy official at DHS last year out of frustration with the administration’s immigration agenda, said the new, more international focus of the effort was a reflection of McAleenan’s belief that messaging and perception are crucial to deterring migration.
“I think what we were seeing up until a couple months ago was Trump — through his ventriloquist Stephen Miller — doing everything possible to limit the number of foreigners who come into the country and limit the number of foreigners already living in the country,” said Nealon, referring to the president’s senior policy adviser.
“Now what you’re seeing is McAleenan, who has a more nuanced understanding of push factors and probably understands the border better than anyone in the government,” Nealon said. “He’s trying to do things downrange to limit the number of people who try to come to the border in the first place.”
Sen. Johnson sent a letter in July to top administration officials pitching what he called “Operation Safe Return” to surge judges, asylum officers and attorneys to the border and fast-track asylum cases, swiftly deporting applicants who don’t qualify instead of allowing them to be released.
Sens. Kyrsten Sinema (D-Ariz.), Joe Manchin III (D-W.Va.) and Doug Jones (D-Ala.) signed on, but the proposal faces dim prospects with many other Democrats outraged by the treatment of migrants in U.S. custody and the president’s statements.
“The president’s rhetoric shouldn’t affect Democrats’ willingness to look at a problem and solve it,” said Johnson, who then conceded the plan wasn’t likely to become law any time soon.