The US doesn’t have to choose between protecting the border and treating immigrants humanely

Scenes of chaos.
Scenes of chaos.
Image: Reuters / Adrees Latif
We may earn a commission from links on this page.

This weekend, people around the world were shocked to see images of children being tear-gassed by US law enforcement officials. Hundreds of asylum-seekers from Central America had been leading a peaceful protest at the border with Mexico when some protestors tried to breach the border fence, prompting Customs and Border Protection (CBP) officers to fire tear gas into the crowd.

Democratic lawmakers in the House of Representatives and Senate were quick to criticize the officers’ actions, placing blame on the Trump administration for allowing the situation to devolve and for failing to move forward on immigration reform (something previous administrations have also failed to do). Meanwhile, Homeland Security secretary Kirstjen Nielsen defended the use of tear gas, as did Rodney Scott, chief border patrol agent of the San Diego Sector Border Control.

The response from Nielsen, Scott, and others is revealing: It underscores the fact that some Americans see punitive immigration enforcement tactics, including the Trump administration’s now-defunct family separation policy, as a justifiable or even necessary means of protecting the territorial integrity of the US. But experts say that the root of the problem is actually a bureaucratic issue—and that are far more humane ways for Americans to secure their borders.

America’s inefficient asylum application process

According to US Customs and Border Protection, 107,212 families were apprehended at the Southwest border of the US during the 2018 fiscal year. That’s an increase of 42% from the previous year. Families asking for asylum also now represent a much greater proportion of the arrests made at the southern border than they did just five years ago.

Those who end up filing an asylum application encounter a massive administrative and legal backlog, as well as a hostile administration determined to slash the number of refugees the US takes in every year. In fact, the Trump administration lowered the “ceiling” of asylum-seekers from 110,000 in 2017 to 45,000 in 2018. Pro-immigration activists say that cap is far too low, given the sheer number of people fleeing to a US port of entry in search of a safe haven.

But the problem is not just that the US takes in only a sliver of the people who apply for asylum; it’s also that those who apply face an inefficient bureaucratic process that keeps them in immigration detention for far too long. David Frum described the problem in The Atlantic:

“The sheer number of these claims is choking the American capacity to respond to them. Each claim must get an individual hearing. The facts are often complicated, since some of those expressing fear of criminal gangs were themselves previously involved in those gangs in one way or another. It takes longer and longer to adjudicate cases: a median of 43 days in fiscal 2006, 286 days in fiscal 2015, and almost certainly much longer than that by now. While something like 60% of asylum claims are rejected, a rejected asylum claim does not easily translate into a repatriated asylum claimant.”

Reforming an immigration system that is under-funded and overtaxed can seem like an insurmountable task—especially in an age where the issue of immigration reform has gone from “hot-button” to “radioactive” for many policy-markers. But just because the debate has stalled doesn’t mean there are no solutions. In fact, immigration activists are vocal about the fact that they have answers—if only we would just listen. Their suggestions:

1. Find alternatives to putting asylum-seekers in detention

Detention is a traumatic experience that negatively impacts everyone, but especially children. In the US, detention facilities and family shelters are particularly harmful. A recent investigation by The Associated Press showed that these centers are overtaxed and disorganized, leading to situations of violence and abuse. At the height of the Trump administration’s now-rescinded “zero tolerance” policy this summer, private companies operating shelters for migrant children were accused of “serious lapses in care, including neglect and sexual and physical abuse,” and some of these shelters are still operating today. Immigration advocates have called for improved oversight of all detention centers, but especially those that care for children. 

Sonia Nazario, an author and board member of Kids in Need of Defense—a child’s rights organization co-founded by Angelina Jolie—wrote an editorial in The New York Times in June that laid out several suggestions for reforming what has become complex and often cruel immigration system. The first, and most important, was to end family detention, the official policy of the government to hold parents with their children in detention centers while their immigration claims are processed.

Some possible alternatives include releasing asylum-seeking families into the US after they are processed and assigning them a caseworker who can monitor them and help them with their legal and administrative questions. When these kinds of programs were tested (pdf), they proved to be much cheaper than family detention, and put less of a strain on the immigration system.

They were also effective. Despite fears that releasing asylum seekers would incentivize them to run away and not show up at their court dates, about 95-99% (pdf) of refugees who took part in pilot programs where they were given a caseworker and monitored via GPS or telephone reporting showed up for their court hearings. According to a policy statement (pdf) written by a group of refugee rights organizations, “Asylum seekers and those with credible legal claims and family and community in the United States have strong incentives to appear in immigration court and comply with requirements.”

There are other, existing alternatives to family detention (ATDs). As Nazario describes in The Times:

“ICE has two programs that use electronic ankle monitors, biometric voice-recognition software, unannounced home visits, telephone reporting and global positioning technologies to track people who have been released from detention while their cases are being heard, at a cost of 30 cents to $8.04 per person per day. In 2013, 96% of those enrolled appeared for their final court hearings, and 80% of those who did not qualify for asylum complied with their removal orders.”

In other words, we know how to create immigration enforcement programs that don’t rely on indefinite detention. So why don’t we?

2. Expand access to legal aid and immigration judges

Nazario has a suggestion for what the government can do with the extra funds it will have by giving up detention centers. “Instead of spending money on family detention centers that brutalize children,” she wrote, “we should … expand access to pro bono and government-funded lawyers so that the immigration court process isn’t a sham.”

Ur Jaddou, the director of DHS Watch, a policy-focused project of immigration organization America’s Voice, adds that the government could use some of the money it saves to recruit, train, and pay more federal immigration judges, thereby helping to alleviate the backlog of cases. (The Trump administration has already begun recruiting more immigration judges, from 289 at the end of 2016 to 397 today.)

“Those are the solutions,” says Jaddou. “Releasing people on alternative to detention, and making their immigration hearings come faster, and tracking them through the entire system, from the moment they enter to the moment of the end of their immigration hearing. And if their immigration hearing results in a removal order … then that should be fulfilled.”

3. Widen the scope of those who qualify for asylum

Nazario says the US also needs to focus on the asylum seekers who are most at risk of violence in their home countries. In June, then-attorney-general Jeff Sessions said that immigration judges would no longer be able to consider domestic violence or gang violence as general grounds for asylum, reversing an Obama-era precedent. Sessions described domestic abuse and violence as “personal crimes.” This ”reflects a fundamental misunderstanding of domestic violence, harkening back to an era when rape and partner abuse were viewed as private matters as well as of the brutality and scope of gang violence,” said the American Civil Liberties Union (ACLU).

4. Change attitudes

Immigration has become a hugely partisan issue in the United States. Many immigration hardliners disagree with the notion that the US has a responsibility to take in more refugees. John Fonte, a senior fellow at the Hudson Institute, a conservative-leaning think tank based in DC, told Quartz, “We determine the laws in this country, not foreigners coming in, throwing rocks and bottles and harming Americans.” When Quartz asked him whether he supported the response of border agents against children, he said “If they [asylum-seekers] were serious about the children, they wouldn’t have brought them in the first place.” He summed up his view by saying: “They’re acting violently … and basically, they should be sent back at this point.”

Jaddou says immigration has become such a charged issue that it’s hard to reach any sort of political consensus around it. And she blames president Trump for this: “We’re being led by a person who’s taking advantage of a complex issue for his benefit,” she told Quartz.

But immigration advocates say it’s possible to reform the way the US processes asylum claims and treats asylum-seekers without abandoning the security of its border. As Nazario told The Times, “Law and order can go hand in hand with humanity. It’s the American way.”