An overwhelmed asylum system and a lack of alternatives have driven—and without action will continue to drive—many to brave extraordinary danger and hardship to reach the U.S. southern border seeking a chance to work or to find safety (and, often, both). Against this backdrop, it is time for decisive action—at the border, within the United States, and throughout Latin America and the Caribbean—to mitigate, manage, and order migration in a way that unambiguously advances the interests of the American people while living up to our values as a country.
The far-reaching bipartisan Senate deal overcomes toxic soundbites and partisanship and needs additional steps to durably create order in the immigration system
The border security and immigration provisions in the Emergency National Security Supplemental Appropriations Act (Senate border deal) is a sincere, bipartisan attempt to create much needed order at the U.S.-Mexico border; release pressure on the broken asylum system, resource agencies and communities; and provide other targeted solutions across the immigration system. The Biden administration and Senate negotiators who crafted this agreement are providing Americans with a serious opportunity to address border security and make progress on fixing elements of our broken immigration system. The effort boldly tackles difficult and divisive issues and moves beyond the overwhelming toxic soundbites and partisanship that have stymied meaningful progress on immigration policy for decades with a meaningful, far-reaching package of reforms. However, to achieve and sustain order at the border, Congress must more boldly address what drives migration in the region and must create accessible lawful pathways that are an alternative to asylum.
The Senate bill is premised on the assumption that changing legal standards and policy at the border to restrict asylum coupled with resourcing immigration enforcement and asylum processing capacity will meaningfully reduce border encounters and create more order. In choosing this approach, the Senate has appropriately recognized that the asylum system is broken, and bold actions are needed to fix it and create more order in our immigration system. However, the bill’s restrictions on asylum access at the border raise serious due process and nonrefoulement concerns and will not work alone to manage migration unless Congress also authorizes and resources robust new alternative migration pathways. Additionally, the legislation’s goal of reducing irregular migration cannot be sustained without bold investments in regional collaborations and development finance at a scale far greater than the levels of U.S. bilateral aid and humanitarian assistance funding in the bill.
There is chaos at our border because the current asylum system is severely lacking in resources; the rest of the immigration system does not work properly; and Congress has not acted to improve it. Congress needs to dramatically increase resources so that the current system works more efficiently, and we also need to reduce pressures on the system—at the border, in the immigration courts, and in local communities—by creating more secure, orderly pathways for people to come to the United States. Unless Congress updates the immigration system, the annual number of new lawful permanent residents (green-card holders) is severely limited by congressionally mandated ceilings for most categories of immigrant family members and workers, leading to lengthy and inefficient backlogs for millions of future Americans. The Senate bill does add a modest number of new green cards to the current system (50,000 a year for five years) and includes provisions from the Afghan Adjustment Act, which would streamline the process of securing a green card for Afghan allies in the U.S. who would otherwise need to secure asylum or another pathway. However, these modest provisions do not meaningfully address the actual need for more viable pathways to create more order at the border and in host communities.
The asylum system is broken, but It can’t be fixed without Congress creating robust alternative pathways
The U.S. asylum system is overwhelmed, in part because claiming asylum at the U.S.-Mexico border has become the only legal entryway for many people from across the Americas (and beyond) seeking to enter the United States for myriad reasons. Fixing it requires both resourcing and updating the system and creating alternative pathways to meet the needs of the United States for immigration that have been and will remain important to the historic economic recovery currently underway and for our future economic growth.
The broken asylum system fails to deliver
The ability of victims of persecution to seek safety is fundamental to American laws and values, and the asylum standard must be generously construed to protect refugees. But the current asylum system too often fails to deliver for those who most need protection. Additionally, it ultimately poorly serves the needs of migrants who lack a viable persecution claim yet file for asylum because of the lack of alternative available legal pathways, as their permission to stay and work is tied to the status of the asylum claim.
One need look no further to understand how badly the current system is broken than pending case data from the immigration courts and U.S. Citizenship and Immigration Services (USCIS). As of December 2023, the immigration courts face a record backlog of 3 million pending cases, with just 682 immigration judges nationwide to adjudicate them. The Congressional Research Service estimated that a minimum of an additional 700 immigration judges would be needed to fully clear the backlog in 10 years. Immigration judges granted just 31,630 asylum applications in FY 2023, while 937,611 asylum applications remained pending. The asylum backlog at USCIS also paints a bleak picture. At USCIS, the agency approved 15,468 applications for asylum in FY 2023 while 1,022,163 applications remained pending. USCIS had just 760 asylum officer positions filled at the end of FY 2023.
Modest increases in resources are simply insufficient for the asylum system to ever catch up. The Senate border deal contains a substantial—albeit still insufficient—increase in resources. USCIS would receive funding to hire 4,338 asylum officers, many of whom would be needed to implement new asylum screening procedures under the bill. The Executive Office for Immigration Review (EOIR) would also receive $404 million for hiring (for context, in FY 2023, EOIR received a total of $860 million for its budget from which it hired 133 immigration judges).
The interminable asylum backlog isn’t the only flaw in the broken system. The asylum system is plagued by inconsistent adjudications, which undermine due process. A 2016 study found that “while the specific ranges differed by court, the typical asylum seeker might have only a 15 percent chance of being granted asylum all the way up to a 71 percent chance depending on the particular judge to whom their case is assigned.” A more recent analysis also revealed continued dramatic variances for asylum decisions across judges and courts. Access to counsel also makes a huge difference in outcomes because immigrants with legal representation are much more likely to succeed in their cases, but many asylum applicants lack representation and also lack adequate interpretation and translation services.
Bringing order to the border must include creating alternatives to asylum
Rhetoric about immigration often references the need for people “to get in line” rather than seeking to cross the U.S.-Mexico border between official ports of entry. For most would-be migrants in the Americas, regardless of their motivation, no such lines—or alternative pathways—exist. Bringing order to the border—and sustaining it—must include creating alternatives.
Through its Safe Mobility Offices (SMO) initiative, the Biden administration has set in motion a mechanism to make it possible for those who would qualify for asylum were they to make the dangerous journey to the U.S.-Mexico border to be processed far closer to their homes through the U.S. Refugee Admissions Program. But even so, the refugee process cannot be the only alternative if we hope to provide would-be migrants with a variety of possible safe and orderly pathways to find safety and/or opportunity in the United States.
Maximizing in-region processing—and taking pressure off the U.S.-Mexico border—requires that those accessing the SMO network also have access to alternative migration pathways. To that end, instead of undermining humanitarian parole authority as some have suggested, Congress should support initiatives such as the Biden administration’s successful humanitarian parole processes for Cubans, Haitians, Nicaraguans, and Venezuelans (CHNV), which have created safe and orderly processes for eligible recipients to come to the United States and reduced irregular migration from those countries. Importantly, the Senate bill leaves in place long-standing parole authority on which the CHNV processes are built. Congress should also create durable legal pathways—including ones that address legitimate labor market needs—that are alternatives to parole and are not temporary in nature.
Large numbers of migrants have been funneled into the broken, inconsistent, and adversarial asylum system because of a lack of alternatives. The asylum system’s failures highlight the need for Congress to create meaningful and accessible legal pathways that will create a more fair and orderly immigration system and reduce incentives to use the asylum system in the absence of a protection claim.
Federal support for U.S. receiving communities
The ongoing realities of irregular migration have resulted in chaos and a humanitarian crisis in receiving communities struggling to shelter and support new arrivals who lack a durable immigration status and work authorization. Congress, the Biden administration, and state and local leaders must work together much more effectively to turn these genuine challenges into opportunities.
Congress should provide sufficient resources—with decisive leadership from the Biden administration—to ensure an effective, federally managed transportation strategy to coordinate the movement of recently arrived migrants from the border to their intended destinations. State and local officials must also work in good faith with each other and with the federal government. Vulnerable migrants seeking safety and opportunity should not be used as pawns by border state governors seeking to intentionally sow chaos in receiving communities such as Chicago, Denver, and New York City.
Congress must also robustly resource the Federal Emergency Management Agency’s (FEMA) Emergency Food and Shelter Program and new Shelter and Services Program. Increasing federal funding for these programs can meaningfully help alleviate resource constraints in receiving communities and states, yet last fiscal year, Congress provided only $800 million for the entire country. The Senate border deal adds $1.4 billion for the Shelter and Services Program (of which $933 million would be immediately available, and the remainder would be available in the future after the Department of Homeland Security certifies that certain hiring, enforcement, and removal metrics have been met). This funding is necessary, but much more support is needed so that local communities’ limited budgets are not unfairly strained to address consequences caused by our broken federal immigration system.
Creating more rapid access to work permits and providing streamlined pathways to a durable migration status will help communities integrate recent migrants faster and will also enable new arrivals to more quickly become self-sufficient and immediately contribute to their local economies and communities. Congress must directly address the underlying lack of durable legal status for many recently arrived migrants—some of whom are in removal proceedings in the backlogged immigration courts and intend to seek asylum—while others have received temporary authorization to remain in the United States via Temporary Protected Status or humanitarian parole.
A host country strategy in the Americas
While the scale of displacement in the Americas may seem overwhelming and unsolvable, there is an important, often overlooked, silver lining. Most migrants are staying in Latin America and the Caribbean and not seeking to come to the United States. For example, more than 80 percent of the nearly 8 million who have left Venezuela since 2015 have resettled across Latin America and the Caribbean. Colombia, a country of 50 million, is home to nearly 3 million Venezuelans; Costa Rica, with a population of 5 million, hosts more than 500,000 Nicaraguans; hundreds of thousands of Haitians today call Brazil and Chile, among other countries, home. Mexico is among the world’s leaders in receiving asylum claims.
Just as they do in the United States, host communities and host countries in the region need support to keep alive options for people to seek a better, more secure life as close to home as possible. At the scale needed, this support cannot just be bilateral development and humanitarian assistance, although that too is important. The Senate deal includes a modest $850 million in humanitarian assistance for the Western Hemisphere and $415 million to reduce irregular migration from the region.
The United States must prioritize support for development finance institutions—the World Bank, the Inter-American Development Bank, and the U.S. International Development Finance Corporation—and ensure that these institutions use these resources more boldly. As the United States is doing with creative climate finance, we need to put the leverage the United States possesses at each of those institutions—that turns millions into billions of impact—to work to help further stabilize populations across the Americas.
The leadership of the Biden administration through the adoption of the Los Angeles Declaration on Migration and Protection in June 2022 at the Summit of the Americas has created a regional consensus of the importance of supporting host countries and communities as part of a layered approach to migration management.
Immigration reform cannot end at the border
Notwithstanding the challenges of border management and the current border crisis, immigration relief is long overdue for the millions of undocumented immigrants living and working across the United States whose contributions strengthen the country even while they lack any durable legal status. It is also overdue for millions of families and workers stuck in green card and visa backlogs that are beyond their control and restrict their ability to reunite with family and contribute to the United States.
Congress’ failure to pass meaningful reforms—including a path to citizenship for undocumented immigrants—has held back our economic growth, as such legislation would increase the U.S. GDP, raise wages, and create new jobs. Beyond the border deal, Congress needs to act boldly to improve other areas of our immigration laws and update our archaic immigration system.