President Donald Trump overhauled the Department of Homeland Security this week, ousting – among others – the department’s head, Secretary Kirstjen Nielsen.
The changes Trump is making appear to stem from his ongoing frustration about the number of migrants seeking entry into the United States, a surge in recent months that Nielsen was unable to address.
His frustration, though, isn’t just about the number of migrants arriving at the border. It’s also that many or most of those migrants are seeking asylum in the United States, a request that carries with it certain legal protections. Often, those protections mean that the migrants then get to stay in the United States for months or years.
With the administration’s renewed focus on the issue, it’s worth walking through how the process works, where increases in applicants have been seen and what comes next in the eyes of the law – and in the eyes of the president.
The immediate source of Trump’s frustration is the increase in migrants arriving at the border with Mexico. When Trump first took office, the number of migrants dropped and so, therefore, did the number of migrants being apprehended at the border, a drop that Trump celebrated as a validation of his policies.
The recent increase has largely been a function of families arriving at the border, migrants categorized by the government as members of family units. Most of the other migrants who arrive are single adults, though there are also minors who arrive at the border by themselves. (In 2014, a surge in these unaccompanied minors from Central American countries spurred another panic over migration.)
This increase was the target of the Trump administration’s “zero tolerance” policy that then-Attorney General Jeff Sessions announced last year. That policy involved mandating detention for those entering the country illegally which, then, meant separating children from their parents on arrival at the border. This was apparently part of the goal; multiple administration officials said they hoped the policy would deter migrants from coming to the United States.
Why did the children have to be separated? Because of a 1997 settlement in a class-action lawsuit by a group of unaccompanied minors, Flores v. Reno. It established guidelines for how minor migrants would be detained, including limiting the detention period and type of detention facility. Among the changes Trump wants to make to immigration policy, according to Axios, is to loosen those constraints.
The number of migrants seeking asylum in the U.S. has increased in recent years, as data from the Department of Justice show. There are two types of application – one granted by Citizenship and Immigration Services, called “affirmative,” and one made by a migrant otherwise facing deportation, “defensive.” The spike has largely been in the number of defensive applications.
As The Post reported in 2018, to seek asylum in the United States, a migrant has to actually be on U.S. soil. So migrants enter the country either by crossing the border between established border checkpoints – an illegal crossing – or by showing up at one of those checkpoints, called a port of entry. Then, they announce their intent to seek asylum. The long-standing image of migrants entering illegally to surreptitiously make their way further into the country is somewhat outdated; now, migrants often turn themselves in immediately.
Since asylum is predicated on the idea that a migrant is at risk in his or her home country, the government will conduct a “credible fear” interview after an asylum claim. That interview involves questions meant to determine the likelihood that a migrant actually faces a risk if returned to their home country. It’s a screening process, with a relatively low bar to allow the asylum process to move forward, requiring a 10 percent chance that the migrant would face persecution. (In some cases, smugglers give migrants language to use to ensure that the interview is passed.)
In about three-quarters of interviews, a credible fear is established.
This is another point at which the administration reportedly hopes to make a change, according to Axios: to raise that bar and, therefore, to turn more migrants away at the outset. Last year, the administration also scaled back the rationales that can be used.
If the migrant passes the credible fear interview, they are slotted for a hearing to determine whether they should be granted asylum over the long term. The rise in asylum claims has led to a massive backlog in the number of cases waiting to be heard in immigration court. According to TRAC at Syracuse University, that backlog now exceeds 822,000 cases.
Some migrants are detained until those hearings. Under the Flores agreement, though, children can only be held for a few weeks. The average wait for a case to be heard? Nearly two years.
So, with administration no longer separating children from their parents, keeping the parent in custody while shipping the child to a foster home, the government instead releases the entire family into the U.S. until that hearing takes place.
Contrary to Trump’s rhetoric, historic data suggest that most of those released before their immigration hearings actually do show up as scheduled.
In recent years, those decisions have gone more heavily against the asylum seekers. Since Trump took office, an average of 64 percent of decisions each month deny asylum for a migrant. In the last two years of former president Barack Obama’s second term, about 53 percent were denied.
When Trump has alternately called for more immigration judges or for judges to be removed, he appears to have been focused on this process and the ongoing backlog: to add more judges to the mix to hear cases faster or to, in his ideal world, remove judges from the process entirely by reforming the asylum process.
Hearing cases faster would generally mean removing many migrants from the country faster. Those whose asylum appeals are denied are scheduled for removal from the country. With the surge in denied asylum claims has come a surge in removal orders.
More of those removal orders have been issued in absentia – ordered by the judge without the migrant in attendance at the hearing. Few of those, however, are cases in which the process began with an approved credible-fear claim, according to Justice Department data.
It’s worth again addressing Trump’s assertions about the effect of migration on the United States. He claimed Friday that the “system is full,” apparently referring to the asylum process and the immigration system.
But he went further, claiming that the “country is full” – which is neither literally nor figuratively true. In fact, Census Bureau data released last December showed that, since 2010, net immigration from outside the U.S. increased in every state by 2018.
But more importantly, that increase in migrants from outside the U.S. was the only reason that the population in nine states, mostly in the Northeast, increased at all. In three states, the population declined even with that migration.
Trump’s focus on immigration centers on the border and migrants seeking asylum. The national picture on immigration includes much more nuance, including that more new immigrants to the U.S. are Asian than Hispanic.
The president’s rhetoric about the threat at the border, though, helped him win the Republican nomination and the presidency in 2016. Part of his objection to what’s happening at the border is clearly rooted in the same prioritization that made him focus on migration from Mexico when he announced his candidacy in 2015.