The Biden administration’s urgent attempt to send a new infusion of money to Ukraine for its war against Russia has stalled on Capitol Hill as Republicans in Congress call for sweeping changes to the immigration system.
Bipartisan talks on Capitol Hill to resolve the impasse have focused on the U.S.-Mexico border and whether the United States will continue to use its current system to decide who is allowed to enter the country and seek asylum.
It’s a very intense debate that touches on a fundamental principle that has long been at the heart of American immigration policy: that the United States should be a refuge for people persecuted or threatened in their home countries.
Here’s what’s at stake.
Why focus on kindergarten?
In recent years, soaring numbers of migrants have arrived at the U.S. southern border seeking asylum, whether or not they qualify. The growing number of arrivals during the Biden administration has fueled Republican attacks on the functioning of the asylum system and led to calls for major changes.
Republicans, and a growing number of Democrats, say the system has become dysfunctional because it effectively allows any migrant to enter the country, claim to fear for their life, and stay there for years while their case works its way through the courts for immigration.
Immigration advocates and experts say that U.S. law gives any migrant who crosses the border the right to seek asylum and have their request heard, and that attempts to prevent or restrict this are both illegal and immoral.
Who should get asylum?
Migrants are entitled to asylum if, according to the Department of Homeland Security, they cannot return to their country due to “persecution or well-founded fear of persecution because of race, religion, nationality, membership in a particular social group or political opinion”.
In an initial screening for asylum – known as credible fear screening – migrants must demonstrate that they would be able to demonstrate that fear of persecution or torture before a judge.
Who asks for asylum now and what happens to them?
Migrants from around the world arriving at the U.S. southern border often seek asylum after being picked up by Border Patrol agents. These migrants may be detained and taken for initial asylum screening. But more commonly, due to decreasing capacity to detain people at the border, they are released and placed into the immigration justice system to have their asylum claims evaluated there within a few years.
The Biden administration has acknowledged that many migrants’ asylum claims are not legitimate. In a regulation released earlier this year, U.S. officials noted that while 83% of people who said they feared preventing rapid deportation at the border from 2014 to 2019 passed initial asylum screening, only 15% of them ultimately succeeded in gaining asylum in immigration court.
“For large numbers of migrants to pass credible fear screening, only to be denied relief or protection on the merits after a lengthy judicial process, has high costs to the system in terms of resources and time,” the government regulation reads. issued by the Biden administration said it.
Immigration experts believe the statistics cited by the government may be misleading and are more complicated than they seem. But Republicans have seized on the discrepancy, arguing that it provides grounds for tougher standards and more aggressive policies for detaining or deporting migrants.
How has the Trump administration treated asylum seekers?
The Trump administration has focused on limiting access to asylum at the southern border. He has attempted to do this in a variety of ways, including barring protections for those crossing ports of entry or for those crossing into another country on the way to the United States. These policies were often evaluated by federal courts.
A Trump policy, which has survived various legal challenges, has forced migrants seeking asylum at the southern border to remain in Mexico for the duration of immigration court proceedings. The policy has been criticized by immigrant advocates and Democrats, including Jill Biden, who visited one of the camps that formed in Mexico as migrants awaited their hearings.
After the start of the Covid pandemic, the Trump administration instituted a policy known as Title 42 to immediately turn away asylum seekers without access to the same protections.
What changes has Biden made?
The Biden administration withdrew the “Remain in Mexico” program in 2021, allowing migrants who were delayed there to enter the United States and seek asylum. The administration kept Title 42 in place until its final attempt to shut it down last year. Due to legal issues, the decision was not reversed until May.
But as arrivals poured into the border, the administration instituted a new asylum policy that resembled Trump-era practices. The policy, which took effect with the revocation of Title 42, makes it more difficult for migrants who enter the United States without authorization and do not seek protection in advance to seek asylum once they arrive. A federal judge struck down that policy in July, saying it was “against the law,” but a federal appeals court said it could continue while the appeal continued.
What is being discussed in the Capitol Hill talks?
The talks on Capitol Hill focused on borders and the asylum process.
The Biden administration and Democratic senators have signaled they are willing to tolerate initial asylum screening at the border. They also indicated an openness to restoring Title 42-like power to immediately turn away migrants and to expanding detention capacity to hold more migrants.
Republicans also sought to reinstate the Remain policy in Mexico, a move that Democrats resisted.
Would any of this make a difference?
It is not clear. The number of migrants at the southern border declined over the summer after Title 42 was revoked and the Biden administration launched a new effort to limit asylum. In recent months, however, the number of migrants arrested has increased. In September alone, there were more than 260,000 arrests of migrants at the southern border, according to government data.
A more rigorous version of initial asylum screening is already available to government officials at the southern border, but the government does not appear to have enough detention capacity or asylum officials to manage the process comprehensively.
Raising the initial screening standard for asylum “could result in more people being returned, although how many more will depend on how the change is implemented and what resources are allocated,” said Kathleen Bush-Joseph, a policy analyst at the Migration Policy Institute.
He added that most migrants selected under the Biden administration’s new, more restrictive asylum policy “were deemed to be in need of protection and were allowed to enter the country to pursue their claims.”
Even restoring the power to immediately turn away migrants at the border does not guarantee that they will be deterred from crossing the border, as numbers were high even when Title 42 was in place in recent years.