There have been several significant changes to how migrants are dealt with at the border this fiscal year, as the Biden administration responds to changing dynamics and explores ways to expedite the legal processes in the face of an unprecedented migration challenge. Below is an overview of the changes, including a new final asylum rule, an evolving approach to Venezuelans at the border, increased use of ports of entry and parole programs for asylum-seekers, and the administration’s response to rises in unaccompanied children.
New final asylum rule
Chief among the changes is a new final rule on asylum that aims to speed up and smooth the asylum process for border arrivals by allowing asylum officers to adjudicate claims, rather than sending all cases to immigration judges. The administration hopes this rule will alleviate immigration court backlogs and more quickly process asylum claims, allowing those eligible for asylum to be granted relief rapidly and those who are not to be removed from the country swiftly. The rule is currently being implemented in phases, starting with individuals from two detention facilities in Texas.
The process under the new final asylum rule begins after the individual is placed into expedited removal proceedings with a credible fear interview, which is meant to determine whether the individual meets a minimum legal threshold—having a credible fear of persecution or torture. An asylum officer from U.S. Citizenship and Immigration Services (USCIS) interviews the individual while they are in detention. If an officer does not find credible fear, the migrant may appeal the decision to an immigration judge. If an officer does find credible fear, the migrant moves on to an asylum merits interview with an asylum officer, which is to be conducted in a non-adversarial manner. The officer’s initial positive credible fear determination serves as the base of the asylum application, and migrants have seven days (if submitting in person) or 10 days (if submitting by mail) to correct the record or submit additional evidence before their asylum interview. The interview takes place between 21 days and 45 days after the credible fear determination. If asylum is not granted, the individual is placed into streamlined removal proceedings in immigration court, where an immigration judge will review the asylum claim to decide whether the claim should be granted. The judge must issue a decision within 90 days.
The rule greatly expands the power granted to asylum officers, and could substantially shorten the time that it takes to rule on an asylum claim. The process under the new asylum rule is designed to take less than six months to reach a decision, accounting for the time it takes to conduct the credible fear interview, gather evidence for the asylum merits interview, conduct the asylum merits interview, and then have a judge review the case if it is not approved by the asylum officer first. This starkly contrasts to the time it takes to move a case through immigration courts, where the backlog has surpassed 1.9 million cases, and wait times for asylum claims averaged about four and a half years at the end of 2021. Some policymakers and advocates have welcomed the rule, to an extent, but also have raised concerns about the lack of legal representation in the process and rushed and confusing timelines.
The small scale of the current rollout shows little to no impact on the majority of those encountered on the border; according to government data released on October 6, 2022, only about 2,200 people had been processed since June 2022 using the new asylum rule. The majority of migrants encountered at the border still are either released into the country or expelled using Title 42.
Changing approach to Venezuelans at the border
Venezuelan encounters at the U.S.-Mexico border have been rising since March 2021, peaking at nearly 25,000 in December 2021. Mexico imposed a visa requirement on Venezuelans in January that meant they were no longer able to fly to Mexico as tourists easily and then make their way to the border. As a result of the policy change, the number of Venezuelans encountered dropped in February 2022 but rose again in June 2022 and have continued to increase, demonstrating that Venezuelans are now taking longer overland routes through Central America to get to the border.
The Biden administration’s struggle to articulate a response to Venezuelans at the border is a symptom of its larger challenge in responding to the overall shift in demographics at the border since it took office. A greater number of migrants from countries other than Mexico and the Northern Triangle countries of El Salvador, Guatemala, and Honduras have been arriving. Migrant arrivals from Mexico and the Northern Triangle have decreased, both as a percentage of the total number of arrivals and slightly overall. Cubans, Nicaraguans, and Venezuelans have driven most of the increase in migrants from “other” countries this year.
The increase in the last year of Venezuelans and nationals of countries that the United States does not have diplomatic relationships with, including Cuba and Nicaragua, has been a new and significant challenge. Until recently, migrants from these countries could not be deported—their countries of origin do not accept returns, and Mexico did not either, until the recent Venezuela agreement was reached. This had led to the release of the vast majority of these new arrivals into the United States, encouraging additional migration from these countries.
On October 12, the Biden administration announced that it would allow 24,000 Venezuelans with pre-existing ties to enter the United States through a parole program that would be decided remotely and require them to fly to the United States. Those that do not qualify for the program would be expelled to Mexico under Title 42. As of November 2, 2022, around 7,000 Venezuelans had been approved for the program since its launch. The Venezuelan program is closely modeled on the, Uniting for Ukraine program that allows Americans to apply to sponsor a Ukrainian for parole but requires the individual to wait outside the United States until approved to travel. Early reports indicate that sponsors in the Venezuelan program are receiving approvals in hours or days, a pace much faster than the normal immigration process. Sponsors and immigration advocates expect that because of the quick pace of approvals, the 24,000 slots the administration has designated for the program will be filled quickly. This program offers a narrow pathway for Venezuelans to enter the country legally, but the expansion of Title 42 to Venezuelans will result in the expulsion of many Venezuelans who arrive at the border. Reports of limitations on how many expelled Venezuelans Mexico will accept, however, may still mean migrants will be released into the United States.
Increased use of ports of entry (POEs) and parole programs
As indicated by the Venezuelan program, the Biden administration is increasingly using ports of entry and parole programs to manage specific groups of migrants at the border. The Venezuelan program is somewhat unique in this sense—Venezuelans who apply to the program online and are accepted will enter through airports (which are ports of entry), not ports of entry at the land border. This may present a challenge for some Venezuelans, as there are currently no flights from Venezuela to the United States due to concerns about the safety of the Venezuelan aviation industry.
In the initial months after Russia’s invasion of Ukraine, Ukrainians arriving at the border were processed through land ports of entry. Nearly 10,000 Ukrainians were processed through land border ports between February 1 and April 6, 2022. After the administration launched Uniting for Ukraine, they were no longer allowed to enter the country along the land border and had to fly to the United States upon approval.
Some Haitians have also been allowed to enter through land border ports of entry, starting mid-July 2022, after what DHS said was a “significant increase in the number of individuals who have presented themselves with situations that warrant humanitarian exceptions” to Title 42. According to the Cato Institute, allowing Haitians to enter through ports of entry made an almost entirely “illegal” flow nearly 97% legal. The way Haitians are being processed through ports of entry is not clearly laid out—asylum seekers are referred to ports of entry by a group of six nonprofits working at the border in Mexico. Once processed by CBP officers at the port, they are released into the country. According to reports, this is being done on a case-by-case basis and is in theory open to asylum seekers of any nationality, but Haitians are currently being prioritized.
Title 42 prevents most asylum seekers from being able to claim asylum at ports of entry, and metering practices at ports prevent most migrants from even crossing into U.S. territory. This has made asylum-seeking and border management more difficult, as asylum seekers must cross the border illegally to encounter U.S. officials and request protection. Using ports of entry to process populations like Ukrainians and Haitians not only allows for more orderly management of asylum-seekers, but it is essential to reducing the influence of criminal smuggling organizations and ensuring that asylum seekers are safely able to seek protection.
The number of unaccompanied children entering the U.S. shelter system in fiscal year 2022 remained high at almost 130,000, surpassing the 122,000 that entered during FY2021. The large number of unaccompanied minors in FY2021 led to overcrowding and inhumane conditions at the border, as the Biden administration had difficulty housing the record number of arrivals. HHS, the agency tasked with caring for unaccompanied migrant children, opened a number of emergency intake sites in FY2021 to ease overcrowding in Border Patrol facilities, which are also not designed to house children. The workers at the emergency sites, especially the Fort Bliss tent complex, struggled to provide adequate care to the children housed there, with untrained case managers unable to ensure the safe and timely release of children to sponsors.
Despite the rise in children entering the shelter system this year, HHS has not struggled as they did in FY2021, in part because they did not face the same level of humanitarian and operational setbacks. HHS says they have worked to set up new shelters and added bed capacity at existing shelters to deal with the arrivals of unaccompanied children. They have closed most emergency sites opened in FY2021, or worked to improve conditions at ones that remain open, and have expedited the release of children to sponsors by removing steps in the sponsorship process and increasing hiring of case managers to place children with sponsors. There has been a significant reduction of time children spend in custody, from 51 days at the beginning of FY2021 to 28 days at the end of August 2022. In FY2022, the average number of children in HHS care has stayed at around 10,000 per month, peaking around 12,500 in December 2021. In FY2021, the number of children in care peaked at just above 20,000. In April 2021, when the agency began struggling with the number of children in care, HHS greatly increased the number of children discharged to sponsors, peaking at about 17,000 discharges in August 2021. The number of total monthly discharges has remained high in FY2022, between 7,500 to 13,000 discharges a month.
Advocates have raised concern over the fact that Fort Bliss remains open as a processing center for children, and want HHS to open a larger number of smaller shelters with higher standards of care. Ensuring that children are safely released to sponsors is also vital, since HHS reduced some steps in the sponsorship process.
Every fiscal year brings new changes and dynamics at the border, which in turn affect the immigration system as a whole. This is demonstrated through the new final asylum rule which is largely a response to mounting asylum backlogs and growing immigration court delays with the goal of preventing influxes in the border from further overwhelming an already massively strained system. New approaches to Venezuelans and unaccompanied children at the border highlight the administration’s efforts to respond to what have now become sustained trends: the growth in migrants from countries other than Mexico and the Northern Triangle, and high numbers of unaccompanied children and families. Smoothing processes can provide temporary assistance to the strained immigration system at the border, and can help ensure that everyone arriving at the border is treated humanely and fairly. However these changes are ultimately “band-aids” substituting for larger and more sustained fixes needed to manage migration on a long-term basis. To effectively manage the border in the long term, larger structural reforms to the immigration and asylum system are needed.
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