Our Asylum System is Not Broken; It Just Needs Resources

Charlie Moskowitz

The asylum system needs resources – and a lot of them – not fundamental reforms.

The current humanitarian crisis at our border is a tragedy, but it is the result of broken politics, not a broken system.

The asylum system needs resources – and a lot of them – not fundamental reforms.

There are two groups of undocumented immigrants in the country: those that crossed the border illegally or came to a port of entry seeking asylum, and those that entered the country legally with a visa and simply never left. Nearly 50 percent of illegal immigrants fall into the latter category.

If the government focused on visa overstays, it could reduce the unauthorized immigrant population by half without the political controversy of walls, detaining children, or changing asylum laws. It merely requires investments in technology, data mining and manpower.

Yet the political focus is on migrants entering through our Southern Border. The recent surge has highlighted the need for resources throughout the system, but this surge is very recent. For the first two years of this administration, despite all the rhetoric, if there was a crisis then, we were living through an apocalypse in the 1990s.

During the 1980s and 1990s, annual border apprehensions – the metric used to determine the flow of undocumented immigrants – were consistently over 1 million, peaking at 1.6 million in 2000. But apprehensions fell to 705,000 by the end of the Bush Administration and to just 409,000 by the end of the Obama Administration, a 75 percent decrease since the year 2000. That trend continued through the first two years of the Trump administration.

The reduction in apprehensions during the Bush and Obama Administrations did not happen by accident; they were the result of spending money where it was needed. The number of border patrol officers doubled, and the Department of Homeland Security built 650 miles of fencing and significantly upgraded its technological capabilities.

Those efforts focused directly on the border, however, only addressing one piece of the system. The changing demographics of the population arriving at the Southern Border – fewer Mexican men coming to the U.S. looking for work and more Central American children and families – brought to light the need for resources elsewhere in the system.

There are currently about 350 immigration judges handling 733,365 cases resulting in wait times of up to four years. Speeding up the asylum adjudication system will be the greatest deterrent to future surges of migrants and the easiest to implement.

Reducing the case backlog to a reasonable amount of time is feasible, but it requires significant funding. Based on the existing caseload, getting cases turned around in six months or less would require an additional 2,000 judges, not the 400 to 500 that some politicians are calling for.

Finally, there is the question of how to make sure that asylum seekers show up to court. The Administration has been decrying legal limitations on keeping children and families in detention for extended periods of time, but there are alternatives to detention (ATD) that work and would not require changes in the law.

DHS argues that ATDs do not work because undocumented immigrants have no paper trail and are nearly impossible to track down once they are released, yet the Obama Administration ran an ATD pilot program in which 99 percent of enrollees showed up for their court appearances. Some migrants will pose flight risks if they are not detained – and more detention space may be needed for that group – but if ATDs are based on an informed risk analysis, they can be just as successful as ATD programs being operated currently in the domestic criminal law context.

Access to attorneys can also serve as an effective ATD. According to available data, 93 percent of immigrants represented by an attorney appeared in court. 

Where additional detention space really is needed is after an asylum claim is denied, but before the immigrant or family is deported. Immigrants are far more likely to flee immigration authorities once their asylum claim is denied than before a decision is handed down, so it makes sense for those individuals and families to be detained until they are deported.

No one is happy with the status quo, but changing it is easier than it is being made out to be. It does not require any changes to our immigration and asylum laws; it just requires a lot more resources and a lot less rhetoric.