The Biden administration released last week initial results from its improvised plan, announced by President Biden on Jan. 5, to stem migration over the U.S.-Mexico border: a 97 percent decrease in attempted border crossings by Cubans, Haitians, Nicaraguans and Venezuelans since Dec. 11. Still, Mr. Biden’s plan is only a short-term fix.
Long-term stability at the border calls for a sustainable approach to asylum — the promise, enshrined in domestic and international law, of haven for people facing “persecution or well-founded fear of persecution based on race, religion, nationality, membership in a particular social group or political opinion” in their countries of origin. It is a noble and necessary commitment. In practice, however, it was being rendered untenable by the sheer number of migrants crossing the U.S.-Mexico border in recent years, each with a legal right to press an asylum claim. Between those assigned to Justice Department immigration courts and Department of Homeland Security asylum officers, the backlog of cases has reached roughly 1.6 million, according to the Transactional Records Access Clearinghouse (TRAC) at Syracuse University. It can take years just to get a hearing in immigration court.
Instead of the selective, humanitarian adjunct to general immigration flows that the law intended, asylum is evolving into an open-ended parallel system. The backlog encourages people to make a dangerous and expensive trip to the U.S. border, knowing that — even if their asylum cases are weak — they can live and work in the United States for years pending a ruling. Even those whose claims are rejected, as they were in most final rulings over the past decade, seldom face prompt removal. Meanwhile, those with strong claims wait longer than they should.
For the sake of all concerned — asylum seekers, other potential immigrants and U.S. communities facing migrant surges — the system’s integrity and efficiency need to be restored.
The Biden administration enacted one structural reform in 2022: As of May 31, asylum officers from the Department of Homeland Security can determine migrants’ eligibility for asylum, instead of conducting an initial screening and referring them to Justice Department immigrant judges as they previously did. Migrants may still appeal an asylum officer’s ruling to an immigration judge, but the net effect is to shorten the overall decisional process significantly. The program has been slow to ramp up, partly because of insufficient personnel. Last year, DHS asked Congress for funds to expand its roughly 1,000 asylum officers by 2,000 — a staffing level that would have also helped DHS work through its half of the asylum backlog, DHS officials say. Congress funded no expansion; it should find the money.
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The Justice Department should get more immigration judges, too, though this is hardly a panacea. The 600 or so it has represents a doubling since 2014, and still the caseload has grown. Even with 500 more judges, it would take eight years to work through the immigration court backlog — composed of both asylum and other cases — according to a 2022 Congressional Research Service estimate.
One key to a more functional asylum system lies outside of it, in wider channels for legal immigration. As part of this, the Biden administration has already nearly doubled, by regulation, the current statutory cap of 66,000 per year on visas for nonagricultural “guest” workers. Of the additional visas, 20,000 are set aside for historical “sender” countries in Central America and Haiti. That share should be increased, as should the statutory caps. Opening lawful pathways for migrants seeking economic opportunity would reduce the number seeking to enter the country by gaming the asylum system. It would also enhance the legitimacy — actual and perceived — of the limitations on immigration that necessarily remain.
Meanwhile, the United States should seek to share responsibility with other countries to resettle asylum seekers. Mr. Biden needs to engage likely partners in the Americas and beyond, including by offering to support their capacities to absorb and protect people. His new plan sets a precedent by relying on Mexico to take in 30,000 people per month from Cuba, Haiti, Nicaragua and Venezuela — which had been refusing to accept returnees from the United States — and turning away more asylum seekers who travel through third countries such as Mexico before crossing the U.S. border.
Immigrant advocacy groups and their supporters in Congress say Mr. Biden’s plan disfavors asylum seekers who do not apply for it in the countries, such as Mexico or Panama, through which they pass en route to the United States. They accuse Mr. Biden of replicating a “transit ban” that President Donald Trump tried to impose — only to have federal courts strike it down. The critics have a point: Current law says the United States must allow anyone on its territory to file for asylum and can require them to seek it only in a third nation with which the United States has a “safe country” agreement. (Canada is the only such country.)
But Mr. Biden’s plan is distinguishable from Mr. Trump’s. It would create not an absolute ban on asylum for those who arrive at the border, between ports of entry, after passing through third countries, but a legal presumption against it that migrants could contest and that would have specified exceptions. Those who use a special cellphone app to make appointments with asylum officers at U.S. ports of entry would not be subject to the presumption that their asylum claims should be rejected. It is coupled with 360,000 new opportunities for legal entry for nationals of Cuba, Haiti, Nicaragua and Venezuela, as well as expanded refugee admissions for the Western Hemisphere. Mr. Biden intends to hammer out details through proper rulemaking, not the peremptory process for which courts faulted Mr. Trump.
Again, Mr. Biden’s proposals are no substitute for permanent asylum reform but could buy time — and provide a template — for one. Unlike his predecessor’s, they are not the product of hostility to immigrants and immigration, but of a welcoming attitude tempered by recent experience and realism. Congress should legislate in the same spirit.
The Post’s View | About the Editorial Board
Editorials represent the views of The Post as an institution, as determined through debate among members of the Editorial Board, based in the Opinions section and separate from the newsroom.
Members of the Editorial Board and areas of focus: Opinion Editor David Shipley; Deputy Opinion Editor Karen Tumulty; Associate Opinion Editor Stephen Stromberg (national politics and policy, legal affairs, energy, the environment, health care); Lee Hockstader (European affairs, based in Paris); David E. Hoffman (global public health); James Hohmann (domestic policy and electoral politics, including the White House, Congress and governors); Charles Lane (foreign affairs, national security, international economics); Heather Long (economics); Associate Editor Ruth Marcus; and Molly Roberts (technology and society).