A Cloud No Larger than a Man's Hand at the Southern Border

By David North on March 24, 2011

At the moment the cloud at the southern border is no larger than a man's hand, but it has prospects for seriously complicating the nation's immigration control programs.

Observers have long known that if there were a massive number of asylum applications by Mexican nationals, legal and illegal, the entire immigration apparatus would be seriously challenged, if not totally swamped.

At the moment the approval rate for Mexicans applying for asylum, despite the ferocious gang activity on the other side of the border, is only a little over 2 percent, but it is not the approval rate that worries but the application rate. Should that soar we would be in big trouble.

And it might. Jason Dzubow, a skilled asylum lawyer here in Washington, has written in both the Asylumist and Immigration Daily that some Mexican asylum seekers and their advocates "have formed a coalition to support each other in their cases."

He writes that "immigration attorneys and immigrant-rights groups in ... El Paso said that they have formed a coalition aimed at providing greater support for asylum seekers facing a hurdle-ridden application process."

Some observers may have worried that the Mexican government would encourage such activity, but that strikes me as highly unlikely. Yes, it would ease the flow of people out of Mexico, which that government would like, but it would do so at a serious cost: labeling that country as one suitable to flee from. As immigration law professor Stephen Legomsky told the Wall Street Journal earlier this month, "When you're granting asylum, you're admitting in effect that the government is going to persecute someone, or is too weak to give that person protection from others who could."

The asylum process can be a two-step affair. An applicant can go to one of the USCIS' specialized asylum offices and "affirmatively" claim asylum, and a negative decision then can be appealed to the immigration courts. Other aliens, once caught up in removal proceedings, can tell the immigration judge that they should not be removed, and should be regarded as asylees; this would be a "defensive" application.

Incidentally, one need not be an illegal to file for asylum; you could be here as a border-card carrier, a tourist, a student – or a diplomat – for instance, and still seek asylum.

Because the Justice Department is more open to providing statistical data than the Department of Homeland Security, we have a better idea of the number of cases that reached the immigration judges than the presumably larger number that applied to the USCIS.

During FY 2009, the last period for which data appears to be available, the immigration courts, according to the El Paso Times reviewed 2,816 Mexican asylum cases, a tiny fraction of the number of illegals picked up at the border that year (465,205, according to the 2009 Yearbook of Immigration Statistics, table 37). Note that some of the 465,205 were repeat cases and that total number of individual aliens apprehended is always lower than the total number of apprehensions.

You had to have a remarkably good case to actually obtain asylum; the judges granted 62 applications, denied 366, and disposed of the rest in other ways. Most of the "others" were withdrawn or abandoned, as applicants realized there was little point in pushing the matter further.

What if, instead of less than 1 percent of those apprehended, say, 6 percent of the 2009 apprehendees, or about 27,000 people, had descended on the USCIS offices and the courts? It would have been bedlam. What if it had been 10 percent, or 46,500?

There are only two asylum offices covering the border states, one in Houston and the other in Los Angeles, as these offices had been located to work with a population that largely arrives by airplane. So there are, currently, no asylum offices in the immediate border areas.

If these organizers are at all successful, it could put a serious strain on the system, even if the approval rate stays as low as it is, and the relentless violence on the other side of the border can only work to increase both applications and approvals.