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The Border Asylum Crisis

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A broken asylum system all but guarantees entry if you bring children.




In this photo provided by U.S. Customs and Border Protection, migrants are seen inside an enclosure in El Paso after crossing the border between Mexico and the United States illegally and turning themselves in to request asylum. PHOTO: MANI ALBRECHT/U.S. CUSTOMS AND B/ZUMA PRESS


Immigration politics is so polarized that right and left have a veto over any constructive policy. Yet a genuine crisis is building at the southern border as the perverse incentives of U.S. asylum law invite a surge of migrants that is overwhelming border security.


Customs and Border Protection Commissioner Kevin McAleenan said last week that the border has hit “a breaking point” amid a rush of families from Central America. More than a strong U.S. economy is driving this influx. Between 2000 and 2017, apprehensions dropped 80% as Mexico’s economy improved and border security tightened. But immigration has picked up over the last year as word has spread that parents with children who claim asylum can stay for years and perhaps forever.

More than 76,000 immigrants illegally crossed the border in February and about half came with families, a 10-fold increase over the past two years. Border apprehensions in March probably exceeded 100,000, the highest monthly total in a decade. At the current rate, border apprehensions will exceed one million this year—the most since 2006—as human smugglers become more ambitious and reduce prices to entice more migrants.


Mr. Trump’s solution is to build a wall along the 1,900-mile border, and on Friday he said he may even close the legal points of entry with Mexico. He has also ordered U.S. aid cut to the Central American countries that are the source of the migrant waves. None of this will deter migrants increasingly drawn by the porous U.S. asylum system. Congress needs to build stronger legal barriers that migrants and judges can’t evade or bulldoze.


One problem is that asylum claimants may avoid immediate deportation simply by convincing an immigration officer that they have a “credible fear” that they will be persecuted if they return to their home country. The Immigration and Nationality Act conditions asylum on a “well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” But immigrants complaining about abusive spouses and economic hardship have been waved through.


Due to a shortage of detention beds, they are usually released and allowed to work in the U.S. while awaiting another hearing to determine if they qualify for asylum. The average hearing wait time is two years. Many disappear and don’t report for their hearing.


The Trump Administration last year tried to make it harder to pass the credible-fear test by barring those fleeing social and economic unrest. Immigration law allows the President to “establish additional limitations and conditions, consistent with this section, under which an alien shall be ineligible for asylum” and temporarily “impose on the entry of aliens any restrictions he may deem” are in the national interest.


But federal Judge Emmet Sullivan last year blocked the Administration from imposing asylum conditions. Last month the Ninth Circuit Court of Appeals extended habeas corpus to asylum claimants, which means even those who fail the initial screening will have recourse in federal court. Almost anyone who claims asylum will now be able to avoid immediate deportation.


The Ninth Circuit in 2016 created other opportunities for asylum arbitrage by extending to families the 1997 Flores settlement, which limits the time unaccompanied children may be detained to 20 days. This has encouraged parents to bring their children on a perilous journey in hopes of expediting their release into the U.S. A father of an eight-year-old boy who died in government custody last December while waiting to be processed had heard rumors that children are a fast-track entry ticket to the U.S. Border agents have identified 2,400 “false families” over the last year as smugglers pair adults with unrelated children.


To relieve overburdened detention facilities and nonprofits, the Trump Administration has tried to steer more immigrants to ports of entry where they can wait in Mexico while their claims are processed. The Administration last year tried to limit asylum eligibility to immigrants who present themselves at ports of entry, but the Ninth Circuit blocked that too.

Thus, the border chaos. Most migrants don’t want to wait years in Mexico so they pay smugglers thousands of dollars to bus them to the border. Some have been ambushed by gunmen. Many cross the border and surrender to government agents because they know they will be quickly released into the U.S.


All of this promotes the perception that the border is out of control and increases support for more restrictionist immigration policies, which should give Democrats a political incentive to fix the asylum loopholes. Start by clarifying that migrants who aren’t being persecuted aren’t eligible for asylum.


Lawmakers should also overrule unfounded court rulings including the Ninth Circuit’s expansion of Flores. More immigration judges are needed to reduce the backlog. Ditto detention beds to house immigrants while claims are processed. Democrats don’t want to make any concessions to Mr. Trump on immigration, but if they refuse to act they will be more to blame for the growing humanitarian and security crisis than the Administration.

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