On September 20, The Atlantic published a piece by staff writer (and former special assistant to President George W. Bush) David Frum, headlined “Ron DeSantis Can’t Troll His Way Into the White House”. Read past the headline and you will see that Frum mostly gets it right about what is happening at the border, from migrant releases to questionable asylum claims to (non) removals of aliens denied asylum. As he states: “To restore order at the border, two things must happen first: The rules at the border need to change, and more Americans need to return to work.”
Not Really About DeSantis. I assume that Frum needed some springboard from which to write about the border for the normally progressive The Atlantic, and an effort by Florida Governor Ron DeSantis (R) in mid-September to fly 50 border migrants to the bougie enclave of Martha’s Vineyard gave him the chance to do so.
That said, aside from the headline, a reference in the second paragraph, and the final paragraph of that piece, Frum really isn’t talking about DeSantis, Martha’s Vineyard, or even similar efforts by Republican governors to bus released migrants to “sanctuary cities” in northern states.
What Frum is really talking about is an immigration system that is “broken” because of some inherent shortcomings and because the Biden administration is taking a sledgehammer to it.
Migrant Releases. The article begins:
This week, like almost every week, federal agents will drop hundreds of people at the bus station in Brownsville, Texas. Those people will complete some paperwork, then board a bus — or sometimes a flight from Brownsville’s airport — to other destinations across the United States. On a busy day, as many as 600 people might transit through the city, Mayor Trey Mendez told me last week. “These are real sophisticated travelers,” Mendez said. “They usually have their arrangements made by the time they get here. They’re very good at using technology to get where they need to go.”
These are key points, which are largely overlooked in most analyses of what the editorial board at Bloomberg Opinion has termed “Biden’s Border Fiasco”.
While DHS is supposed to detain every alien caught entering the United States illegally across the border — from the moment they’re caught to the point at which they’re either granted asylum or removed — that congressional mandate is simply being ignored by the Biden administration.
Instead, they are being released, and as Frum describes, those releases are usually little more complex than completing the kind of paperwork you fill out at your local DMV.
Nor are most migrants unsophisticated rubes who — through no agency of their own — find themselves on this side of the U.S.-Mexico line requiring the aid of NGOs and government agencies to navigate their way into and through some strange new world. A majority have paid thousands of dollars to travel from their homes through Mexico to the United States, with a destination in mind and a plan to get there.
Maybe they have a job in Brooklyn or relatives in Northern Virginia, or maybe they have just heard about the “welcoming” municipal policies in Portland, Maine, but they have a plan, and a CBP processing center at the border is simply a stop along the way.
“Safe, Orderly, and Legal”. Further down in that article, Frum clarifies that: “When President Joe Biden or Vice President Kamala Harris references the supposedly ‘orderly’ process at the border between the United States and Mexico, the routinized transit at places such as Brownsville is what they have in mind”.
That “routinized transit” into the interior — and the statements by Biden and Harris that Frum references — are part and parcel of what DHS Secretary Alejandro Mayorkas has described as the “objective” of the Biden administration’s border policies.
On the May 1 edition of “Fox News Sunday”, host Bret Baier asked Mayorkas whether it is “the objective of the Biden administration to reduce, sharply reduce the total number of illegal immigrants coming across the southern border? Is that the objective?”
Mayorkas responded: “It is the objective of the Biden administration to make sure that we have safe, orderly, and legal pathways for individuals to be able to access our legal system.” Did you get that?
Mayorkas’ goal is not the one that Congress assigned him in the Secure Fence Act of 2006, i.e., “to achieve and maintain operational control over the entire international land and maritime borders of the United States”. That includes the Southwest border, from the Gulf of Mexico to the Pacific Ocean.
What does “operational control” of the Southwest border mean? Congress explains that it’s “the prevention of all unlawful entries into the United States, including entries by terrorists, other unlawful aliens, instruments of terrorism, narcotics, and other contraband”.
Nothing happening at the Southwest border is “safe”, “orderly”, or “legal”, but on the second point Frum gets fuzzy, asserting: “Not all of the people released into the United States are necessarily ‘illegal immigrants.’ Many have made an asylum claim, and by international treaty and U.S. law, they are entitled to a hearing of that claim.”
Note that I recently wrote an entire post of more than 2,000 words to counter some iteration of the bumper sticker retort “Not all of the people released into the United States are necessarily ‘illegal immigrants’”, but just to briefly rehash: Aliens who enter the United States illegally are here illegally and will be here illegally until they are granted asylum (or some other form of relief) or are removed.
Frum reiterates a similar point, however, just a few paragraphs later: “Theoretically, asylum seekers have been accepted into the United States only provisionally, subject to adjudication of their claims by an immigration judge.” Nothing — and I mean nothing — in that sentence is legally or factually correct.
“Asylum” in the context of illegal entrants is something those entrants can seek to prevent removal and remain in the United States permanently. And, as I explained in that earlier post, under U.S. law an alien who has filed an asylum application cannot be removed until that application is denied.
But that does not mean that an applicant for asylum has been “provisionally accepted into the United States” any more than I would be a “provisionally accepted into your family” if I barged into your house during supper and sat down at your table, pending the arrival of the police.
Time to Rethink Our Asylum Laws. That’s not a perfectly apt parallel, because the cops aren’t going to decide that I am a member of your family and allow me to move into the guest bedroom, which is akin to what happens when an immigration judge grants asylum. It does, however, underscore a major problem with what Mayorkas has described as the administration’s border policy.
Although asylum and refugee status are two different things legally, they’re closely related. In fact, aliens must prove they are “refugee[s] within the meaning of” section 101(a)(42) of the Immigration and Nationality Act (INA) to be granted asylum in the United States.
The United States’ asylum and refugee obligations flow from our accession to Articles 2 through 34 of the 1951 United Nations Convention Relating to the Status of Refugees (Refugee Convention) in 1968. The asylum obligation Frum appears to be referencing comes from Article 31 of the Refugee Convention, which reads as follows:
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 in the sense of article 1, 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.
Article 31 of the Refugee Convention is narrower than the U.S. statutory asylum provision, section 208 of the INA, which doesn’t require that “refugees” be “coming directly from a territory where their life or freedom was threatened” to be granted asylum.
When the United States acceded to the Refugee Convention in 1968, few aliens crossed the land borders seeking asylum. In fact, up until about a decade ago, most illegal entrants were Mexican nationals, and few if any were seeking asylum.
Thus far in FY 2022, by contrast, more than 65 percent of the aliens that CBP has encountered at the Southwest border aren’t Mexican nationals, and most are coming to take advantage of the border policies that Mayorkas described on May 1.
That brings me back to Frum, who states:
The use of the asylum system as an alternative immigration corridor did not begin under President Biden. Migrants surged across the border in mid-2014 and again in 2016; and in the first months of the Trump administration, they also arrived in huge numbers. In December 2018, the Trump White House promulgated its “remain in Mexico” policy. People who crossed the border into the United States to claim asylum would be returned to the Mexican side to await their hearings. That obviously removed a lot of the incentive to travel to the United States to file a claim — and the border-crossing surge dramatically slowed after May 2019.
There are two important points in that passage. The first is the effectiveness of Remain in Mexico in deterring illegal entries. Frum is no Trump fanboy, penning an unflattering tome about the 45th president (Trumpocalypse: Restoring American Democracy), but he gives the devil his due.
The second is Frum’s portrayal of “the asylum system as an alternative immigration corridor” for border-crossing migrants. As the author notes earlier in that article:
Most of the post-2020 asylum seekers are coming from Central American countries, and 65 percent of Republicans reject their right to claim asylum. Central America, after all, is not a war zone. The asylum seekers are not being oppressed on the basis of their race or religion. They are escaping poverty and violent crime, not persecution in any regular sense of that concept.
Through the refugee screening process, the U.S. government can assess whether foreign nationals abroad have suffered “persecution” under the INA and bring those who have to the United States.
As Frum explains, however, the illegal migrants who access the asylum system are already here, and their applications have “overwhelmed the immigration tribunals.” He continues:
Walk across the border, avoid immediate expulsion, and you will be allowed to live and work in the United States for years to come. Lose your case before the immigration judge, and you can appeal it to the federal courts. Lose again, and the government must seek a deportation order. More appeals can then follow. When and if asylum seekers exhaust their last legal remedies, there is always the option of dropping out of the legal system entirely and gambling that the authorities will neither catch on nor catch up. It’s usually a winning bet.
That’s not an exactly accurate (Frum seems to think the asylum process is separate from the removal one, which it isn’t) but his depiction of the “asylum system as an alternative immigration corridor” and the problems with it is dead-on correct, exposing the fundamental problem with Biden’s border policies.
The administration treats every illegal entrant as an “asylum seeker”, even if they aren’t seeking asylum and even if the bases of the claims they do make don’t equal “persecution in any regular sense of that concept”.
In that vein, later in that article, Frum asserts: “To restore order at the border, two things must happen first: The rules at the border need to change, and more Americans need to return to work.”
Both assertions are correct, but I am not sure whether the first one (“The rules at the border need to change”) is correct in the way that Frum intends. That’s because he prefaces that statement in the two paragraphs directly preceding it by talking about challenges facing the U.S. economy.
These include unfilled jobs (“By mid-summer 2022, the U.S. Chamber of Commerce had tallied five job openings for every three unemployed workers — and word has gone out around the planet”), an aging workforce (“In the U.S., about 10,000 Baby Boomers turn 65 every day”), and a low labor participation rate (“The Chamber of Commerce estimates that 3.4 million Americans who might otherwise be expected to work are missing from the labor market.”).
If he’s suggesting that more work visas would reduce the flow at the border, nothing suggests that’s true. Foreign nationals who would be denied visas would likely still come. The answer to the decline in the labor participation rate is higher wages and fewer handouts to those who should be working.
If, however, he’s implying that the way that we apply our asylum laws to illegal entrants needs to change, that point goes unstated, but his article is shot through with arguments supporting it.
As noted, the United States is only obligated under Article 31 of the Refugee Convention to provide asylum to aliens “coming directly from a territory where their life or freedom was threatened”.
As I recently explained elsewhere, however, the Biden administration is processing illegal entrants who traveled to the border from around the globe, and releasing them into the United States to apply for asylum in a process that, as Frum explains, makes it unlikely they will be removed even when and if their applications are denied.
That system is ripe for abuse and is being abused much more often that it’s providing legitimate protection. You don’t have to trust me. As then-DHS Secretary Kirstjen Nielsen stated in 2018:
Illegal aliens have exploited asylum loopholes at an alarming rate. Over the last five years, DHS has seen a 2000 percent increase in aliens claiming credible fear (the first step to asylum), as many know it will give them an opportunity to stay in our country, even if they do not actually have a valid claim to asylum.
It’s only gotten exponentially worse since.
There are two ways to halt that abuse. The first is to renew “Remain in Mexico”, which, as Frum notes, “removed a lot of the incentive to travel to the United States to file a claim” to asylum.
The second is to rewrite the laws to conform with Article 31 and restrict access to asylum to aliens coming directly from the place where their lives or freedom are being threatened on account of their race, religion, nationality, membership in a particular social group, or political opinion — the bases for asylum relief under the Refugee Convention.
Section 208 was added to the INA in 1980, and the border has changed a lot since then, as noted. Other foreign nationals seeking protection can seek refugee status abroad, they just cannot do it here.
State plaintiffs continue to sue the administration to reinstate Remain in Mexico, but Biden should not be forced to do so. His current border policies have created an unacceptable humanitarian and national security disaster and need to be fixed.
Rewriting section 208 of the INA would require congressional will, but every day the situation at the border provides a case study in why it is necessary. It won’t happen before election day, but perhaps the next, 118th Congress will see things differently.
As Frum said: “To restore order at the border, two things must happen first: The rules at the border need to change, and more Americans need to return to work.” I could not have put it better myself.