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Locked Out

Congress Is Sleepwalking Into a Draconian Asylum Ban

Lawmakers may be able to fool themselves into believing they’re addressing a temporary crisis, but their hasty deliberations will endanger an uncounted number of lives.

Jemal Countess/Getty Images
A projection of Senate Majority Leader Chuck Schumer onto the wall of the National Art Gallery in Washington, D.C.

With Congress back in session, eyes are turning again to winding negotiations over both border measures and Ukraine funding, which House Republicans have tied together in a bid to force President Biden’s hand on restrictions. The White House—now taking political fire not just from conservatives but from blue-state mayors and governors, who are increasingly turning away from the Trump-era pro-asylum consensus in the midst of what has come to be called simply the “migrant crisis”—seems open to some key concessions, perhaps most notably a change in the first step of an asylum application, the so-called “credible fear interview.”

What Biden and moderate Democratic legislators seem to be overlooking is that just because you find quick consensus on passing a law in the throes of some perceived acute emergency doesn’t mean that law will prove to be flexible as circumstances change, or easily set on the path of expiration when the emergency ends. Laws are laws, and while their implementation and interpretation can shift dramatically from one administration to the next, they are binding until either the courts strike them down—and no court will be striking down a higher statutory standard for asylum anytime soon—or Congress rewrites them again.

You don’t need to be a political prognosticator to be skeptical of the idea that Congress, once it slams the door shut on asylees, is going to return to the drawing board to loosen up humanitarian immigration law in any imminently foreseeable future. Even if the Senate, that comically self-described “greatest deliberative body in the world” could accomplish any legislation of note at the present time, anything resembling immigration leniency or openness has been a notoriously impossible climb for decades, no matter how politically popular it is.

And the Senate is where prospects are more promising. The lower chamber seems increasingly unmoored from the rest of the country. A permanent path to citizenship for Dreamers, for example, has been the beneficiary of broad public support for over 20 years. It has nevertheless never come seriously close to passage, and the prospect seems even more distant in a Congress where Matt Gaetz can drive a House speaker out of the body altogether. Rather, things on Capitol Hill are ratcheting in the other direction—with incrementally more restrictionist language building gradually, each change seeming only like a reasonable little tweak.

Donald Trump famously allowed Stephen Miller to reconstruct the nation’s immigration approach in his own image without changing a single immigration law. That he was able to do so is not a signal that the laws don’t matter but rather of how malleable the law can be to stretch toward restrictionist ends. In fact, the complex statutory framework was one of the only things that kept Miller’s crackdown from being far worse; for every one of his callous machinations, another was enjoined or struck down by the courts.

A relatively small shift in the language could have much more lasting implications than anything Trump was able to do through regulatory action alone. If Trump or a Trump-like figure were to become president again, these tweaks could form the basis of restrictions even more severe than anything he was able to implement the first time around.

Part of the problem here is that the central issue of concern is incredibly abstract, not just for lawmakers but for a public that’s being bombarded with crisis language. To them, raising the standard from “credible fear” to “reasonable fear”—which seems to be where negotiations stand right now—might seem like almost no change at all, especially given how subjective those words sound anyway. If you ask a series of linguists, they might well disagree over which term is more restrictive. Ask a lawyer, though, and they’d point out that the latter could establish a “more-likely-than-not” standard that might be much more difficult for people to meet.

To concretize this further, let’s step away from the semantic arcana for a minute and consider the actual circumstances of a typical arriving family of asylum-seekers. They’re arriving, disoriented and generally somewhat traumatized, from strenuous and hazardous overland journeys over weeks or months. If they have anything at all, it’s a phone, some clothes, and whatever documents they thought to grab on their way out (unless they’ve lost or had these items stolen or confiscated, as is common).

For the most part, they’ll have a general understanding that there’s a process of asylum in which they intend to participate and that they’ll need to establish through evidence that they have reason to fear that some specific danger or persecution will befall them if they are forced to return to their home country. That’s about the extent of the foreknowledge of our byzantine asylum system (which, incidentally, is about the extent of the typical voter’s knowledge, notwithstanding how passionately they claim to feel about it) that they’ll possess when they arrive. An asylum-seeker is not often going to know that they must prove persecution specifically on the basis of “race, religion, nationality, membership in a particular social group, or political opinion,” what any of these terms mean in court, or what evidence will be necessary to prove these claims. No one is arriving at the border with a legal brief in hand.

It works out for many asylees now because the current “credible fear” standard is intentionally low. Congress didn’t expect asylum-seekers to be prepared for complex procedural hearings on arrival and structured the system so they would only have to initially prove that their claims generally conformed to the standards. There was an understanding that they’d be put under much more scrutiny at later stages of the process—after they’d had a chance to grasp the legal standards, obtain a lawyer, find witnesses, and compile an evidentiary record from their home countries. This wasn’t considered a bleeding-heart position, merely an acknowledgment that the asylum program was designed to accommodate people who were often forced to leave suddenly and who definitionally did not have time to make extensive preparations for the legal processes they’d soon face before fleeing home.

The standard retort here is that the volume of arrivals has overwhelmed the system—according to data maintained by the TRAC project at Syracuse University, the number of pending cases crossed a staggering million by the end of last year—triggering years-long waits for cases to play out, both due to and leading to migrants realizing they can stay and work in the country for years regardless of the merits of their claim. This is a delicate issue, because anti-immigrant zealots will point to denial rates and statements from migrants themselves to essentially paint the entire population of asylum-seekers as facially illegitimate, which is obviously not true.

Nonetheless, some percentage of the claims are undeniably thin. Just about half of asylum decisions reached nationwide last fiscal year resulted in denials—though it must be noted that the rates vary wildly among courts nationally, that the lack of available lawyers severely hampers cases regardless of their merits, and that the actual standards for asylum are much narrower than people think. You can, for example, prove that you’re in some level of danger and still get denied if you’re not in the right kind of danger.

Moderates see this and conclude that it’s pretty reasonable to tighten the screws; if people are abusing the system, raising the standards will keep those people out while the asylum-seekers with meritorious claims—the good ones—will still pass and be protected. Setting aside some more fundamental issues with these attempts to have clean categorizations, this doesn’t really work when what’s being changed is the standard for the first step, before migrants have likely had a chance to understand the asylum standards, talk to a lawyer, or do much of anything to prepare.

Think of it this way: Imagine you had to prove to the IRS that you had not cheated on your taxes. Even if you were fairly sure you didn’t and thought it would be straightforward to prove you hadn’t, how confident are you that you could reasonably establish that, on the spot, without talking to a tax lawyer or having a chance to gather evidence? And the consequences of you failing to establish that fact to the satisfaction of your interviewer were both immediate and unappealable. Will the Biden administration be likely to really use this to maximum effect to keep people out? Maybe, maybe not. Could an administration use it to shut down a huge number of claims before they’ve begun? Certainly.

Broken down to the brass tacks, the uncomfortable reality is that it is not possible to make this type of change without excluding many thousands of otherwise eligible people off the bat. That’s especially true when it’s in tandem with other changes being contemplated, including a limit on the humanitarian parole program—which, while imperfect, is currently being used by the administration to funnel hundreds of thousands of preapproved migrants from Cuba, Venezuela, Haiti, Ukraine, and elsewhere into both the country and the asylum system without the danger and disorder of treks to the border—and an expansion of the expedited removal program. In sum, these shifts would dramatically decrease the pool of people who can actually seek asylum. Which is, of course, the point.

If that really is the be-all and end-all here, policymakers should just come out and say it. The truth is, that position is getting more politically popular as a direct result of the machinations of Texas Governor Greg Abbott. His chaotic busing stunt, along with the “critical race theory” panic and the use of antisemitism claims against higher education, now ranks among the most successful recent examples of the right scoring a largely unearned political victory thanks to the Democrats’ congenital inability to respond effectively to bad-faith right-wing weaponization of government.

Moderate Democratic legislators can tell themselves and their constituents that reaching this type of deal is a way to stop abuse of the asylum system and won’t turn away “worthy” claimants, but that’s simply a lie. They should also understand that this is a kind of preemptive capitulation, setting the tone for the broader and longer-term discussion of what constitutes a humanitarian claim at all. It’s long been the objective of Miller and his ilk to define the terms down to almost nothing, effectively repealing the right without having to formally repeal it. Immigration advocates, meanwhile, have pointed out that the current asylum and refugee definitions are woefully outdated and don’t contend with many prominent contemporary drivers of migration—most glaringly climate change.

Which brings us to another uncomfortable reality: that it’s possible and even likely that the supposed crisis we’re seeing now is child’s play in comparison to mass climate migration as the impact of climate change escalates. What we’re seeing now is a shot across the bow for how that will be handled. The signs are not good.