For generations, the United States has been a place of safe haven for people seeking freedom and safety. In 1980, Congress passed the Refugee Act, codifying basic refugee protections into law and enshrining a global commitment to asylum which emerged from the tragedy of the Holocaust. In the decades since then, hundreds of thousands of refugees and asylees have been granted status, strengthening communities around the nation, contributing economically, and enriching the national fabric.
But in the 21st century, a global displacement crisis is affecting nearly every country in the world. Multiple nations across the Western Hemisphere have become destabilized due to a wide variety of factors, including rising authoritarianism, political assassinations, natural disasters, powerful transnational criminal organizations, climate change, and the global socioeconomic shocks of the COVID-19 pandemic. The end result is humanitarian migration at levels far above what the 20th-century system can handle.
Presidential administrations of both parties have failed to meet this challenge. Instead of an orderly, humane, and consistent approach to humanitarian protection and border management, we have been left with a dysfunctional system that serves the needs of no one: not the government, border communities, or asylum seekers themselves.
Today, the U.S. government faces an enormous challenge. The number of asylum seekers seeking to enter each day is significantly higher than the number the United States can process at official border crossings. The location and manner of crossings varies widely across the border, often changing unpredictably based on misinformation, rumor, or the demands of powerful transnational criminal organizations which maintain control over many of the migration routes with a bloody fist. The system is constantly at risk of bottlenecks and overcrowding, building the perception of chaos at the border. And inside the United States, underfunding, neglect, and deliberate sabotage have left the adjudicatory process in shambles.
There are currently more than 1.3M pending asylum applications, and the average asylum case in immigration court now takes 4.25 years from start through a final hearing.
The failure to build a modern and functional system of humanitarian protection extends throughout the asylum process. There are currently over 1.3 million pending asylum applications, including roughly 750,000 in immigration courts and over 600,000 at U.S. Citizenship and Immigration Services (USCIS). The average asylum case in immigration court now takes 4.25 years from start through a final asylum hearing, leaving those with meritorious claims stuck in legal limbo and those whose claims are denied facing the prospect of deportation after they have already put down roots in the United States. Decades-old laws require asylum seekers to wait months to gain work authorization, leaving communities inside the United States to step in and help people get on their feet.
Rather than making a sustained investment into building a better system, past presidential administrations have attempted over and over again to instead use aggressive enforcement- and deterrence-based policies in hopes of reducing the number of people who are permitted to apply. The failure of this approach is manifest: No one thinks that the problem has been solved or even alleviated. Making matters worse, constant shifts in policy due to international negotiations, federal litigation, and border agents’ own discretion make it virtually impossible to articulate what the current policy toward asylum seekers at the southern border actually is.
Crucially, there is still hope. Restoring our humanitarian protection systems and breaking the cycle of crises and crackdowns is not only possible, but within reach. However, to do so, we need a major shift in thinking and policymaking. Politicians must abandon a fantasy of short-term solutionism and acknowledge that only sustained investment over a period of time can realistically address these 21st century challenges. Therefore, short-term action must focus on establishing a viable path towards a better system. In the long term, with significant investment, we can create a flexible, orderly, and safe asylum process.
Rebuilding a functional system does not require a radical overhaul of U.S. immigration law. Nor will it lead to open borders. Even if every recommendation in this report is implemented, those without meritorious claims will still be deemed ineligible for relief and ordered deported. But taking that reality seriously also obligates the government to get it right — and ensure that no one is deported to a country where they will be persecuted. Adherence to the rule of law means both that those who seek to live here agree to abide by the government’s rulings, and in return that the government upholds our longstanding commitment to respect human rights and international humanitarian agreements as well as provide a fair day in court for all those who seek it.
Creating and funding a flexible, orderly, and safe asylum system will reduce both irregular entries and unjust outcomes. Investment in dedicated humanitarian processing infrastructure at the border and in receiving communities will reduce unexpected fiscal burdens, limit strain on law enforcement resources, and improve human rights. Moreover, a humanitarian protection system that is purged of arbitrary delays and inconsistent outcomes will produce fairer and more expeditious results. Asylum seekers with meritorious claims will be more likely to prevail when provided with a meaningful opportunity to present them. Conversely, a fair, transparent, and expeditious asylum process may reduce claims from those without meritorious cases, and those who are denied will be more likely to accept negative results from a fair and transparent process.
A revitalized modern humanitarian protection system will also dampen political backlash to the concept of asylum in a time of rising anti-migrant sentiment. While overall support for providing asylum continues to poll above 50 percent, chaotic scenes at the border have dampened public support for asylum. And while some critics will oppose any measures that permit asylum seekers to enter the country, the right to seek asylum is central to this country’s historical commitment to welcoming those fleeing persecution and to most Americans’ understanding of their nation as a global and moral leader. Turning away from asylum seekers would be a more radical break than improving the system to support them.
To begin the work on creating a viable path towards a better system, we provide the following recommendations:
1
Expand Customs and Border Protection’s (CBP) Office of Field Operations’ capacity to process asylum seekers at ports of entry in a timely, orderly, and fair manner, and publicize this route.
2
Surge resources to U.S. Border Patrol to improve humanitarian processing and transportation of migrants, to reduce overcrowding and abuses, and to free up agents to carry out other law enforcement duties.
3
Establish a Center for Migrant Coordination to coordinate federal, state, and local efforts to support newly arrived migrants and reduce impacts on local communities.
4
Grow federal support for case management alternatives to detention to help migrants navigate the asylum system.
5
Revamp asylum processing at USCIS to keep up with both affirmative asylum backlogs and the new border processing rule.
6
Begin clearing immigration court asylum backlogs through the use of prosecutorial discretion.
7
Construct noncustodial regional processing centers where federal agencies are co-located with nongovernmental organizations (NGOs) to carry out processing, coordinate release, and provide effective case management for newly-arrived migrants.
8
Prepare for and terminate Title 42 once legally permitted, allowing a return to normal immigration law.
9
Fund a right to counsel in immigration court to ensure a fair process for individuals seeking asylum.
10
Create a Federal Emergency Management Agency (FEMA)- based Emergency Migration Fund to provide for a flexible and durable response during times of high migration.
11
Increase legal immigration pathways through congressional overhaul of immigration laws and executive expansion of existing pathways.
12
Build domestic and international refugee and asylum processing capacity in Latin America with the support of the United Nations High Commissioner for Refugees (UNHCR) and the international community.
13
Bring asylum law into the 21st century, lifting harmful antiimmigrant laws passed in the 1990s and moving past a post-World War II framework for asylum.
Through these recommendations, we believe the United States government can create a system for asylum processing that is flexible, orderly, and durable, respects the rights of asylum seekers, inspires confidence in the American public, and ensures that the United States remains a beacon of safety. Such a system will not only ensure that the United States lives up to its promises, but also ensure greater stability across Latin America by reducing the power of gangs and cartels and promoting human rights throughout the region.
This is undoubtedly an enormous challenge. There is no perfect solution. It will require compromises. However, the last decade of inhumane and failed deterrence policies has shown us there is no real alternative. Only through bolstering meaningful access to humanitarian protection can we move forward towards a more just, humane, and fair future. This is the only way to ensure that both migrants and the United States remain safe and free.
We believe that solutions must be practical, flexible, and rooted in the lived reality of the previous decades of border policies. The United States’ humanitarian obligations are nonnegotiable. Therefore, these recommendations are predicated on certain bedrock principles and understandings:
- The creation and maintenance of a flexible, modern, humanitarian protection system must respect the right to seek asylum, serve the national interests and promote human rights globally.
- There is no simple solution to address irregular migration, as people migrate for a wide variety of reasons, both voluntary and involuntary.
- All people have the right to seek asylum and are entitled to due process and a meaningful opportunity to present a claim for relief.
- A fair asylum system should provide meaningful legal and integration support to migrants seeking protection to reduce the risk of an erroneous denial leading to persecution.
- The United States has a responsibility to maintain border security. However, migration at the border should not be viewed solely through the lens of enforcement, but rather through a broader lens that also considers U.S. foreign policy interests and domestic commitments to the rule of law.
- The best proven methods of achieving a longterm reduction in irregular crossings involve increasing access to legal immigration pathways and addressing the root causes of migration.
Expand CBP Office of Field Operations’ Capacity to Process Asylum Seekers at Ports of Entry
Background
When a person seeking asylum arrives at the border, they are often faced with a choice: attempt to seek asylum at a port of entry or attempt to seek asylum by crossing between ports of entry and presenting to a Border Patrol agent. Crucially, neither of these options is the “right way” or the “wrong way” to seek asylum. The Immigration and Nationality Act is clear that any person who is “physically present in the United States, or who arrives in the United States (whether or not at a designated port of arrival … ), irrespective of [their] status, may apply for asylum.” Similarly, the 1951 United Nations Refugee Convention provides that “The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened [by persecution], enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.”
As a practical matter, however, seeking asylum is generally better for all parties when done at a port of entry. Individuals who present themselves at a port of entry can be more expeditiously processed by the government without requiring the redirection of law enforcement resources. Those who present at a port of entry generally face fewer risks than those who cross the border between ports of entry and are more likely to avoid cartel smugglers. And travel through ports of entry reduces potential impacts on border communities and limits perceptions of chaos associated with crossings between ports of entry. Yet despite this clear benefit, accessing asylum at ports of entry remains highly difficult for many migrants, even after the Biden administration reversed many of the Trump-era policies restricting access to asylum, as demand for access has been consistently above supply for years.
For the last five years, migrants have been unable to consistently walk to a port of entry and request asylum. From April 2018 to March 2020, the Trump administration imposed border-wide “metering” at ports of entry, artificially and unlawfullyiv restricting the number of migrants who could access the asylum process each day. While metering originally began in 2016 under President Obama at the Tijuana/San Ysidro port of entry and was briefly imposed across the border in winter 2016, the use of metering declined in 2017 following a significant drop in the number of people seeking asylum in the first months of the Trump administration. The reinstitution of metering in April 2018 led to the growth of haphazard “waitlists” in Mexican border cities, with thousands of people waiting, some upwards of six months, just to begin the asylum process.
While CBP often publicly justified metering on limited capacity, in 2020, the Department of Homeland Security (DHS) Office of Inspector General (OIG) reported that Customs and Border Protection officers had repeatedly misrepresented the processing capacity of ports of entry across the border, with officers observed falsely telling migrants that the port was at capacity even though there were multiple empty processing rooms available. The report further found that in 2018, DHS Secretary Kirstjen Nielsen secretly authorized CBP to artificially limit the number of individuals able to seek asylum each day. Despite signing this memo, Secretary Nielsen subsequently falsely testified to Congress that the agency had made no changes to asylum processing at ports of entry and in fact was engaged in efforts to increase processing capacity.
After the pandemic hit and the Trump administration implemented Title 42 in March 2020, asylum processing at ports of entry ground to a virtual halt for two years as metering waitlists froze in place and CBP began refusing to take almost any migrants at ports of entry. As a result, the asylum system became nearly impossible to access without crossing the border between ports of entry and seeking out a Border Patrol agent—and even then, many asylum seekers were expelled under Title 42 without asylum processing. This had the counterproductive effect of incentivizing irregular border crossings and encouraging some migrants to try to evade detection.
In November 2021, DHS Secretary Alejandro Mayorkas formally rescinded Secretary Nielsen’s memorandum authorizing metering. The same day, Acting CBP Commissioner Troy Miller formally rescinded similar CBP guidance and directed ports of entry along the southern border to “consider and take measures, as operationally feasible, to increase capacity to process undocumented noncitizens at Southwest Border POEs, including those who may be seeking asylum and other forms of protection.”
As of 2023, the ports of entry have reopened to migrants—somewhat. Under Title 42, DHS has always had the ability to exempt migrants from Title 42 for humanitarian reasons. This authority was rarely used for the first two years of Title 42, except for on a limited basis through a partnership with a small number of NGOs in summer 2021. But starting in spring 2022, DHS began expanding the use of these Title 42 humanitarian exemptions at ports of entry in order to gradually restart the asylum process. The number of individuals exempted from Title 42 at ports of entry rose from an average of 266 per day in Mayxv to 743 per day in December—a 159 percent increase (see Figure 1). Throughout 2022, this exemption process was largely operated through NGOs and lawyers in Mexico and the United States acting as intermediaries to submit humanitarian requests to CBP.
The effect of this exemption process has been dramatic. Its impact on one nationality in particular—Haitians—has shown enormous success and provided hard evidence that increased asylum capacity at ports of entry can reduce the number of people crossing between ports of entry.
Since the exemption process began expanding in 2022, Haitians have been among the most likely to receive humanitarian exemptions at ports of entry. Throughout the spring, the number of Haitians processed under Title 8 at ports of entry rose from 268 in March to a peak of 6,591 in October. This increased ability to access asylum at the ports of entry dramatically shifted Haitian migration patterns. The number of Haitians taken into Border Patrol custody dropped over 99 percent in a matter of months, falling from a high of 7,762 in May 2022 to just 21 in February 2023 (see Figure 2).
In January 2023, CBP replaced the NGO-led exemption process with the use of a mobile application known as “CBP One” that requires migrants to schedule appointments at select ports of entry across the border to be considered for an exemption to Title 42. CBP One is intended to be the primary method by which migrants can seek such exemptions at ports of entry while Title 42 remains in place.
Through March 2023, CBP One appointments were available at eight different ports of entry along the U.S.-Mexico border: San Ysidro and Calexico in California, Nogales in Arizona, and El Paso, Eagle Pass, Laredo, Hidalgo, and Brownsville in Texas. Use of the app to schedule appointments is also restricted to individuals who are within a limited geographic area that currently extends south to Mexico City but no further.
The initial rollout of CBP One has been plagued with technical glitches and design flaws. Demand for appointments has far outpaced supply, forcing migrants to compete for rare appointment slots—while abundant technical glitches put individuals without consistent Wi-Fi at a marked disadvantage. In the initial weeks of the program, the app was only available in English and Spanish, causing difficulty for speakers of other languages. Individuals over the age of five making appointments are required to take a photo through the app as part of a “liveness test,” but at least initially, the app had difficulty recognizing the faces of darker-skinned migrants, affecting Haitian migrants in particular. Those lucky enough to evade all these pitfalls still have to wait weeks for their appointments. CBP has notably made many technical fixes and adjustments to the app in the first two months of its use, but at least one migrant has already been murdered while waiting.
The new exemption process has in some cases prompted families to self-separate, as larger families struggle to obtain an appointment when slots are limited. Limited availability of appointments at certain ports of entry have led some individuals to take appointments in other locations potentially thousands of miles away, requiring migrants to travel through dangerous territory along northern Mexico where kidnappings are common. And for those individuals without a functioning smartphone, there are few if any options other than begging for help.
Today, more asylum seekers are being admitted through southern border ports of entry than any time in the last decade. However, capacity for port of entry processing remains far below demand. From January to March, CBP processed an average of 737 people per day for Title 42 exemptions. During that same period, an average of 4,681 people were taken into Border Patrol custody per day. Many migrants have reported that they have been waiting fruitlessly for months to obtain an appointment through CBP One. There is growing frustration in Mexico over the lack of appointments, and some migrants have given up hope and decided to cross between ports of entry instead. As a result, CBP’s efforts to channel migrants to ports of entry risks a significant setback if the agency cannot rapidly increase processing capacity and reduce the inequities involved with an appointment system that resembles a lottery system.
The federal government should take all measures necessary to rapidly increase processing capacity at ports of entry, fix the serious problems within the CBP One app, re-institute an alternate, non-app-based path to access the asylum process at ports of entry along the southern border, and continue to heavily advertise the availability of a safer and easier method of accessing protection at ports of entry. By offering a safe, legal, and accessible method of entry to migrants, the government can reduce irregular entries, limit the exploitation of migrants by profit-seeking transnational criminal organizations (TCOs) and local gangs which often require migrants to pay crossing fees, and provide a more orderly process for the U.S. government itself.The initial effort should address infrastructure and logistics needs. To meet the growing demand for CBP One and access to asylum at ports of entry, DHS should redirect as many available resources and as much personnel as possible to the Office of Field Operations in order to expand available appointments and reinstate processing at more ports of entry along the southern border beyond the eight that are currently available through the CBP One app process.Considering CBP One’s technical flaws, limited availability, and privacy concerns, and consistent with Acting CBP Commissioner Miller’s November 2021 memo providing that “asylum seekers or others seeking humanitarian protection cannot be required to submit advance information in order to be processed at a Southwest Border land POE,” the use of CBP One must not become the sole required tool in order to access asylum. DHS must ensure that alternate methods of accessing the asylum process at ports of entry exist beyond CBP One, including physical access for asylum seekers who arrive at the ports of entry in urgent need. To the extent that NGOs are involved in any alternate process, DHS should seek to provide direct funding to mitigate the very high costs of safe operation in northern Mexico.As CBP prepares for the transition away from Title 42 in May 2023, it should gradually resume alternate forms of asylum processing at all ports of entry for individuals who cannot access the CBP One appointment process. By the time Title 42 ends and the government resumes processing of all arriving asylum seekers under Title 8 (normal immigration law), CBP should already have a process in place to respond to asylum seekers physically arriving at ports of entry without an appointment. This could include everything from working with the Mexican government to expand physical port-of-entry infrastructure on the Mexican side of the border, to kiosks installed at the port of entry which migrants could use to schedule an appointment or begin pre-processing if CBP is at full capacity.In the immediate future the agency should prioritize technical and policy fixes to the CBP One app. This includes addressing any remaining issues the app has with accepting darker-skinned migrants, expanding the number of languages in which the app is available, and expanding appointment slots so that families can avoid any need to self-separate.
Given DHS OIG’s 2020 report that CBP has in the past falsely represented its processing capacity at ports of entry, the Secretary should task both DHS OIG and the DHS Office for Civil Rights and Civil Liberties (CRCL) with closely monitoring this expansion of asylum processing capacity, to ensure that the agency is using all available resources to carry out this mission.
DHS should focus its additional resources first on the ports of entry where exemption processing is already highest: San Ysidro, El Paso, Brownsville, and Hidalgo (see Figure 1).
As DHS ramps up processing at ports of entry, it should simultaneously continue and expand its ongoing messaging campaign encouraging people seeking asylum to come to the ports of entry rather than crossing between them. Note that messaging is a component—not a solution in itself. No amount of encouragement to seek asylum at ports of entry will be sufficient if the process remains slow and inaccessible to the average migrant.
Simultaneously, the State Department should coordinate with the government of Mexico, UNHCR, and the International Organization for Migration to further increase shelter capacity on the Mexican side of the border through competitive grants, additional funding sources, municipal resources, and security assurances. Safe housing options on the Mexican side of the border would also reduce the pressure on individuals who feel compelled to cross between ports of entry.
In addition, the State Department should work with Mexico to increase security around the ports of entry, with a focus on preventing cartels from usurping or controlling any part of this process and protecting vulnerable asylum seekers.
To ensure that CBP’s Office of Field Operations can carry out these recommendations, Congress should provide significant emergency funding for CBP to hire sufficient new permanent or contract staff to ensure that expansive asylum processing at ports of entry is viable, scalable, and not disruptive to other CBP business at ports of entry. Such funding should come with sufficient oversight to ensure the funds are not used for enforcement purposes, such as “hardening” ports of entry to make them physically inaccessible to asylum seekers or turning away asylum seekers at the “limit line” before they reach U.S. soil.
Congress must also invest in the agency’s permanent physical infrastructure at ports of entry. This includes both increased use of technology to minimize overall processing time and increase overall throughput of individuals seeking asylum at ports of entry, as well as expanded physical infrastructure at ports of entry, including holding areas, waiting rooms, and other locations where CBP can carry out any individualized screening and processing requirements.
Improve Border Patrol’s Capacity for Humanitarian Processing
Background
Given the restrictions on access to ports of entry described above, over the last decade the vast majority of asylum seekers arriving at the U.S.-Mexico border have instead crossed between ports of entry and turned themselves in to Border Patrol agents. This has posed a significant challenge for the federal government, and in particular the Border Patrol. The agency has traditionally viewed itself as a national security and law enforcement agency, not a humanitarian processing agency. The majority of the agency’s physical infrastructure was designed for processing Mexican adult migrants who could be rapidly transferred out of Border Patrol custody, not families and children. And as exemplified by a 2019 Facebook group scandal where Border Patrol agents were discovered to be posting dehumanizing and vile content about migrants, the agency’s shift towards a more humanitarian mission has engendered backlash among some agents who are hostile towards migrants.
Over the last decade, the Border Patrol has consistently failed to process high numbers of asylum seekers in a humane manner while simultaneously carrying out the agency’s law enforcement mission without disruption. This situation has proven unacceptable to all sides of the debate.
Those who focus on the Border Patrol’s duty to process arriving asylum seekers highlight Border Patrol’s failure to process applicants for humanitarian protection in a humane and orderly fashion. For example, overcrowding and mistreatment of asylum seekers in Border Patrol facilities has been common for years, leading to multiple children dying in Border Patrol custody in 2019. Until the late 2010s, nearly all individuals held in Border Patrol custody were routinely denied access to basic hygienic needs such as soap and toothbrushes and often forced to sleep in crowded cells nicknamed hieleras (iceboxes) or perreras (dog kennels).
After outrage and successful litigation, conditions have improved significantly in recent years, although problems remain and overcrowding continues to be a concern during times of high arrivals. Today, most migrants taken into custody by the Border Patrol are sent to dedicated “processing centers” or “soft-sided facilities” that offer a higher level of care than in the past.
Those who focus on the Border Patrol’s law enforcement duties argue that the agency has been stretched thin due to the significant amount of processing required by humanitarian migration, as compared to those who are not seeking asylum. For example, Border Patrol sources have indicated that completing court appearance paperwork for a single individual or family can take 60-90 minutes per person or family group, meaning that thousands of agents are spending significant time completing paperwork and managing coordination with Immigration and Customs Enforcement (ICE), transportation, and release of migrants rather than patrolling in the field. Border Patrol sources also frequently assert that increased humanitarian processing is a cause of increased “got-aways” and leak this non-public data to the media on a regular basis.
Others, including the Border Patrol’s own union, have argued that processing asylum seekers has led to a reduction in the agency’s ability to seize drugs coming across the border. Anecdotal evidence suggests that the cartels have used large migrant crossings to distract agents in at least some circumstances. However, as Figure 3 demonstrates, there is no clear correlation between migrant apprehensions and overall hard drug seizure weight, suggesting any such impact is limited. The overwhelming majority of hard drugs come through ports of entry, often smuggled in passenger vehicles and commercial traffic.
After taking office, the Biden administration prioritized policies and measures that are intended to reduce the possibility of the kind of dangerous overcrowding that occurred in 2019. This has led CBP to prioritize the creation of programs which allow for shortened processing at the border, including the short-lived and disastrous “Notice to Report” process under which individuals were released from CBP custody with only a notice asking them to appear at any ICE office for further processing. This was later replaced with “Parole + [Alternatives to Detention],” which allowed Border Patrol agents to release individuals on parole rather than issuing them a notice to appear in court whenever Border Patrol detention centers reached certain measures of overcrowding. The use of Parole + ATD largely ended in early 2023 following an agreement with Mexico that permitted the expulsion of certain nationalities back to Mexico, and in March 2023 the Parole + ATD program was vacated by a federal court in Florida.
Both programs, while arguably successful in reducing overcrowding, have created other processing difficulties inside the United States. ICE does not have procedures in place to expeditiously issue notices to appear for hundreds of thousands of people released at the border, and as a result there are more people required to check in with ICE than ICE can check in. Through February 2023, “nearly 600,000” migrants released at the border since March 2021 still had not been issued a notice to appear in court. And as of March 2023, the ICE office in New York City was reportedly “fully booked through October 2032” for ICE check-in appointments, meaning some migrants may be forced to wait years just to begin the court process.
Increasing humanitarian processing capacity is an important way to prevent migrants from being deprived of their rights in Border Patrol custody and to permit agents to specialize in specific law enforcement tasks distinct from humanitarian processing. Just as Border Patrol today has specialized search and rescue units and specialized tactical units, it could stand up specialized humanitarian processing units, supported by Border Patrol Processing Coordinators, while other agents specialize in detection and apprehension of migrants and smugglers who seek to evade authorities. If adequately funded, increasing processing capacity can be done in a variety of ways. First, CBP should hire more Border Patrol Processing Coordinators, a new civilian position created in recent years. Processing coordinators carry out non-law-enforcement duties which were previously carried out by Border Patrol agents themselves, including:liii
- Receiving and processing migrants taken into custody from the arresting Border Patrol agent.
- Transporting migrants from the field to a processing center and keeping track of their personal property through inventorying and tagging.
- Carrying out mandatory welfare checks on individuals held in Border Patrol custody and maintaining administrative paperwork relating to anyone held in Border Patrol custody.
- Facilitating Border Patrol contacts with other federal components and agencies.
The first processing coordinators were deployed in April 2021. By September 2021, there were 160 Border Patrol Processing Coordinators deployed across the entire border. This grew to “nearly 1,000” by December 2022. The agency still struggles with overcrowding, most recently experiencing significant overcrowding in December 2022. This suggests there are still not enough processing coordinators deployed across the border to process the current number of arriving asylum seekers in an efficient and humane manner. In the immediate term, during times of high arrivals, DHS should actively cross-detail as many people as possible to be processing coordinators, while increasing hiring. CBP should consider increasing the wages paid to processing coordinators to boost hiring, retention, and professionalism, since processing coordinators are paid at a GS 05-06 level ($35,000-$51,000). Similar changes may be necessary for the position of Border Patrol Agent itself, where hiring has consistently been difficult for years. DHS should also ensure that it identifies locations for additional temporary soft-sided facilities that can be operational by May 11, 2023, when Title 42 is set to end, to avoid overcrowding should the number of arriving migrants increase substantially. DHS should also prioritize efforts to lower the amount of time required to process arriving migrants. This can be done through a full shift to electronic processing for migrants taken into Border Patrol custody including the long-anticipated switch to electronic A-Files and in-transit processing of I-213s and notices to appear. Ensuring that all individuals who are encountered by CBP have their initial notices to appear issued by that agency will also reduce pressure on ICE offices inside the country which have been forced to take on a far greater initial processing role than in the past. Finally, DHS should also work to ensure that any transportation contracts for lateral decompression and community release are in place prior to the May 11 date on which Title 42 is set to end. The agency should be prepared for a wide variety of scenarios to ensure that they can respond flexibily should migration increase beyond expected levels.
In order to increase the overall number of processing coordinators, Congress should fund a substantial increase in the agency’s humanitarian processing budget. However, given the Border Patrol’s problematic history when it comes to allocating spending—and watchdog reports that CBP spent millions of dollars allocated by Congress for humanitarian “consumables” (such as food, bedding, and hygiene items) on things like new ATVs and HVAC repairslix—any increase in funding and support to the agency must also come with effective oversight. Congress should not provide a blank check to the agency for “migrant processing,” and any appropriations should come with mechanisms to ensure that the agency properly manages any funding and personnel increases.
Specifically, Congress should task the Government Accountability Office (GAO) with auditing the Border Patrol’s use of any funds directed specifically towards humanitarian processing of migrants, as well as the agency’s ongoing use of funding for new Border Patrol Processing Coordinators. The funding should come with specific restrictions preventing the agency from redirecting it to other line items. As part of any agreement to provide these funds, Congress should direct CBP to carry out a study on further ways to make long-term policy and infrastructure improvements to the front end of humanitarian processing.
Congress should continue to appropriate funding specific to other aspects of CBP’s humanitarian processing responsibilities, including the further hiring of contract or permanent medical personnel to ensure that individuals taken into Border Patrol custody are in good health and do not need emergency medical assistance. To the extent that the agency needs some new physical infrastructure and transportation capacity, Congress should work to provide specific, targeted funding towards those requests, ultimately reducing the agency’s reliance on costly contractors with poor track records of migrant care.
Establish a Center for Migrant Coordination to Bring Together Federal, State, and Local Resources and Support and Facilitate Migrant Integration
Lock Cards
Problem
Cities are overwhelmed with large influxes of migrants from the southern border.
Word of mouth; generous housing benefits available in cities like New York; and free Texas buses lead an overwhelming number of migrants to settle in only a few cities across the United States. Migrants who choose these cities based on false ideas about what awaits them can end up homeless or stuck in limbo.
Solution
Create a federal Center for Migration Coordination (CMC).
The Center for Migration Coordination (CMC) could coordinate with cities and local governments to match migrants with a location that seeks growth and has the resources to accommodate new arrivals.
Result
Migrants go to welcoming communities throughout the
United States.
Congress could fund the CMC to establish integration centers that would help migrants learn English, acquire new job skills, navigate local bureaucracy, and understand the immigration court process.
Background
When migrants arrive in the United States and are taken into custody by CBP, and then released at the border or from a detention center, they often need immediate assistance in obtaining transportation to their ultimate destination. In some relatively rare circumstances, migrants may not have an ultimate destination and need support finding a place to live while they go through the asylum process. And once migrants arrive at their ultimate destination, they often lack local knowledge of how to navigate their ICE check-ins, court dates, and other responsibilities.
Over the last decade, the responsibility for assisting migrants in these circumstances has fallen almost exclusively to nonprofit organizations and receiving communities. At the border, a network of shelter providers has assisted hundreds of thousands of people released from CBP and ICE custody. In some locations, NGOs operate in close conjunction with local CBP and ICE officials to coordinate releases. At other times, ICE and CBP have released people at gas stations, bus stops, and other locations far from shelters, forcing NGOs and state and local officials to scramble to respond and ensure that people are not left on the streets without resources or assistance. Coordination between NGOs and state and local officials is often the sole responsibility of local CBP and ICE field offices and is not centralized in any way.
In 2022, the need for a federal response became particularly apparent following the arrival of thousands of migrants who did not know anyone in the United States and were in acute need of emergency shelter. This was exacerbated by politically-motivated actions taken by the states of Texas, Arizona, and Florida to transport tens of thousands of migrants to Democratic-led cities such as New York, Chicago, Philadelphia, and Washington, D.C. Mayors of these cities have subsequently called for federal help.
Congress has responded to some of this need through the provision of funding to assist NGOs and state and local governments which have had to expend resources to assist migrants, initially through the Federal Emergency Management Agency’s (FEMA) Emergency Food and Shelter Program (EFSP). In December 2022, Congress created a new “Shelter and Services Program” to replace EFSP sometime in 2023 and provided $800 million for “grants or cooperative agreements with state and local governments and nongovernmental organizations.”
The provision of money alone will be insufficient to resolve the larger coordination needs of responding to high levels of migration. State and local governments want more than just funding, they want the federal government to lead a centralized response.
This is not the first time that DHS has recognized the need to centralize a response to the situation at the border. DHS created the “Southwest Border Coordination Center” in 2022, which brings together headquarters officials from across the agency to standardize processing and improve coordination among different field offices and Border Patrol sectors. The official purpose of this center is to “coordinate planning, operations, engagement, and interagency support.” The Southwest Border Coordination Center has produced an extensive planning document for interagency coordination of responses to increased numbers of border crossings through 2022.
The current situation at the border requires an all-of-government approach that includes direct coordination with external stakeholders and impacted communities. We propose the creation of a Center for Migrant Coordination housed within DHS that is designed to bring together DHS components, the Office of Refugee Resettlement (ORR), state and local governments, and NGOs across the border and in receiving communities, with the goal of standardizing practices and procedures for migrant release, transport, and assistance.
Communities at the border and inside the United States should have a single point of contact within DHS and ORR to answer questions about migrant assistance, learn about and apply for any affirmative grants or reimbursement programs to assist migrants, and obtain information and guidance about the asylum process. DHS and ORR should proactively reach out to receiving communities and arrange regular listening sessions to further understand the needs of each community and help them apply for any available assistance.
The Center for Migrant Coordination could also work directly with refugee resettlement organizations and existing nonprofit organizations serving new immigrants (which often have extensive local experience in integrating individuals into their communities), in developing strategies around integration and post-arrival support. Initial funding for the center should come from DHS general funds, with the agency seeking Congressional appropriations for future operations. Any funds should come with restrictions ensuring that they are used solely for the purposes of this center and cannot be reprogrammed for enforcement purposes.
The creation of this center would assuage concerns from state and local officials that they have been left out of the loop about migration and encourage enhanced coordination between stakeholders throughout the system, reducing inefficiencies and further bolstering support for the asylum system.
Congress should provide funding in the FY 2024 budget, and on an ongoing basis in future years, to support the work of the Center for Migrant Coordination. In its initial year of funding, Congress should provide at least $10,000,000 to hire new staff, establish initial priorities and procedures, and begin outreach and coordination between DHS and receiving communities.
Congress should also consider passing authorizing language to formalize the role of the Center for Migrant Coordination. It could place the center within the DHS Office of the Secretary and provide authorization for a Director of Migrant Coordination who will oversee the center’s mission: coordination and support for DHS’s work to standardize release policies, education and collaboration with stakeholders in receiving communities, coordination with ORR and other agencies, and any other duties as may prove necessary.
Congress should also consider funding the Center for Migration Coordination to work with nonprofit organizations and local governments to establish local outreach centers for migrants going through the asylum process. These local outreach centers could be modeled off European integration and reception centers, which offer classes in local languages, assist migrants in obtaining employment authorization, and provide guidance in the asylum process for those that need it. If properly funded, these local outreach centers could bridge the gap between expanding case management programs operated by ICE (which generally provide referrals only) and the limited capacity of some support programs to accommodate increased demand without additional funding.
Revamp Asylum Processing at USCIS through Targeted Funding and Modifications to the New Asylum Rule
Background
Since Congress created the modern expedited removal system in 1996, asylum officers have had a key role in processing asylum seekers. Initial “credible fear” and “reasonable fear” interviews for asylum seekers processed under expedited removal are statutorily assigned to specialized adjudicators trained in asylum law, known as asylum officers. These same officers, who today are part of USCIS’s Refugee, Asylum, and International Operations Directorate (RAIO), are also responsible for adjudicating so-called “affirmative” asylum applications that are filed directly with USCIS for individuals who (with the notable exception of unaccompanied children) are not going through the removal process.
The Trump administration attempted to systematically tear down and rebuild RAIO into a core component of its anti-asylum policies. These actions including firing RAIO’s Obama-era leader John Lafferty, setting the refugee cap to its lowest level in history, replacing USCIS asylum officers with Border Patrol agents given a single course in asylum law, and pushing out conscientious asylum officers, some of whom resigned in protest when asked to carry out policies they believe violated human rights. Today, despite increased hiring from the Biden administration, it is widely understood that there are still not enough asylum officers to carry out both credible fear interviews and affirmative asylum interviews. Throughout FY 2022, the affirmative asylum backlog grew by over 16,000 cases per month, topping 600,000 for the first time.
Throughout FY 2022, the affirmative asylum backlog grew by more than
month,
topping 600k for the first time.
In May 2022, the Biden administration began piloting an alternate asylum process that first refers most asylum seekers to asylum merits interviews with USCIS asylum officers instead of immigration court. Under this rule, the administration will treat a credible fear interview as a full application for asylum, rather than forcing individuals to separately file a formal asylum application with the immigration court to begin the asylum process. Individuals who pass this credible fear interview under the new rule would then be referred to an asylum officer at USCIS for an “asylum merits interview” that is supposed to occur within 60 days of the credible fear interview. At the asylum merits interview, the asylum officer could grant or deny asylum. If the asylum officer grants asylum, then the person would receive asylum immediately. If the asylum officer denies asylum, the individual would be referred to an immigration judge for an expedited form of removal proceedings which are intended to be completed in a timeframe between 60 to 135 days.