SAN DIEGO — The U.S. asylum system is often cited as part of a noble legacy tied to the message on the Statue of Liberty, offering freedom to the "huddled masses."
But the truth is much more complicated and decidedly less noble.
Over its 40-year history, the U.S. asylum system has never meted out refuge evenly or in the full spirit behind its creation.
As The San Diego Union-Tribune has reported over the last year in an in-depth investigation, disparities, capriciousness and bias plague the system, subjecting asylum-seekers to excruciating waits and making it difficult to predict the outcome of even the strongest cases.
Those shortcomings, partnered with policies meant to deter people from coming, have meant that many people fleeing the world's atrocities are sent back to danger. Some are returned to their deaths.
While the problems are long-standing, they've intensified under the Trump administration, which defined itself largely by extreme deterrence policies that have ultimately taken away any meaningful chance at asylum.
The incoming Biden administration has indicated it will undo many of the widely criticized programs created under President Donald Trump, including the "Remain in Mexico" program, which forces asylum-seekers to wait in Mexico as their cases are processed in the U.S.
But, it remains unclear whether the 46th U.S. president will be able to use the moment to break with the United States' past in a profound way.
To do so will take a re-examination of more existential questions about the country's global obligations to protect refugees, as well as a reimagining of many of the processes that make up the asylum system today.
A LEGACY OF RESISTANCE
The decision on whether to protect people fleeing harm used to be made from crisis to crisis, and on the whims of elected officials.
The modern conceptualization of refugees and asylum was born in the aftermath of the Holocaust.
Even then, the United States resisted providing shelter.
After the atrocities of the Nazis were widely known, then-President Harry Truman still had a difficult time convincing Congress and the American public that the United States should take in Jewish refugees, according to Edna Friedberg, historian at the U.S. Holocaust Memorial Museum.
It wasn't until 1968 that the United States signed onto a United Nations agreement regarding its role in identifying and protecting refugees as part of a collective global commitment.
It would be 12 years before the country codified this obligation into law. That legislation created the asylum system — a screening process to identify refugees from among the migrants at and inside the United States' own borders.
It also outlined how the United States, through the U.S. Refugee Admissions Program, would resettle refugees who were identified in other countries' screening systems, such as those who fled violence in Vietnam, Cambodia and Laos and were waiting in refugee camps.
In order to balance these obligations with countries' desires for control of their borders, the international definition of a refugee is specific and restricted.
"States give up a certain amount of sovereignty over their borders in order to place themselves under obligation to protect vulnerable people, but the obligation is kept as narrow as possible," said Larry Gollub, a retired asylum officer.
Refugees are people who have fled their countries because of persecution based on race, religion, nationality, political opinion or membership in a social group such as the LGBTQ+ community.
But there are many people who flee harm or hardship whose life experiences do not match this definition. There is also a lot of room for interpretation and political agenda, creating a haphazard and inconsistent system.
HOW TO IMPROVE THE SYSTEM
Making the asylum system live up to its obligations in a more humanitarian and efficient way is feasible through a wide variety of changes.
Some could be accomplished at the discretion of the president; others would require an act of Congress — and likely bipartisan support.
While some of the changes would require more funding for a particular agency or process, there are also opportunities to shift funding away from policies that don't help the system function as smoothly or fairly as it could.
"It's not necessarily all about needing more money invested — it's about political will," said Michelle Brané, director of the migrant rights and justice program at the Women's Refugee Commission. "You think about the things that we've done as a nation in terms of response to challenges, and this is so minor in comparison."
Changes both big and small have been discussed at length by experts in asylum law and human rights, attorneys, judges, former and current government officials, and people who have journeyed through the system themselves as refugees.
Here are their suggestions.
MOVE IMMIGRATION COURT TO THE JUDICIAL BRANCH
Immigration judges are not traditional judges. Instead, they work under the executive branch of government — under the president's authority. They are employed by the attorney general at the Department of Justice, the same prosecutorial agency that argues against asylum-seekers' appeals in federal court.
This presents, critics argue, a clear-cut conflict of interest.
It also means that the presidential administration has a lot of power to influence the court's decisions based on its political agenda.
That was especially apparent under the Trump administration when attorneys general used their powers to redecide cases and fundamentally changed accepted asylum precedents.
They made it much more difficult for women fleeing domestic violence in countries that don't shelter them from that abuse to get protection in the United States. They also made cases of people fleeing gang violence — already a tough scenario to prove under U.S. asylum law — nearly impossible.
The National Association of Immigration Judges, the American Immigration Lawyers Association and the Federal Bar Association have all advocated for years for immigration courts to become free of the political sway of the executive branch by moving to the judicial branch.
"The system needs independence," said Jeremy McKinney of the American Immigration Lawyers Association. "It's time for the Department of Justice and the immigration court system to get a divorce."
Moving the court would require an act of Congress, but past efforts at legislation have not gained much support. Interest among some Democrats to take up the issue appears to be growing.
DIVERSIFY AND TRAIN IMMIGRATION JUDGES
The majority of immigration judges previously worked for the Department of Homeland Security as opponent attorneys arguing against asylum-seekers in immigration court.
The Union-Tribune reported in August that immigration judges with this work history were about 1.4 times more likely to order asylum-seekers deported than judges with different backgrounds, based on an analysis of immigration court outcomes from fiscal 2009 through fiscal 2018.
Immigration attorneys have long criticized the executive branch's hiring practices for immigration judges. That concern only grew under the Trump administration as the Department of Justice promoted judges who ordered deported high percentages of asylum-seekers. Those judges now decide asylum appeals.
In its proposal to move immigration court to the judicial branch, the Federal Bar Association calls for a reimagining of the hiring process that would limit any one presidential administration's influence and incorporate suggestions from local communities.
Newly hired judges, as well as veterans, could also be given thorough trainings of asylum law to try to equalize some of the disparities in their outcomes and lean more toward a mindset often embraced by asylum officers — that decisions should be made with an abundance of caution.
REDUCE THE COURT BACKLOG
The number of immigration court cases has swelled in recent years to well over 1.2 million with an average wait of more than two years, according to the Transactional Records Access Clearinghouse of Syracuse University, or TRAC.
Many of those cases are asylum-seekers.
The backlog contributes to issues within the asylum system, including forcing refugees to wait in a hellish limbo.
"It's horrible," said Santee resident Carmen Kcomt, who won asylum in 2008 from Peru after waiting for four years through multiple rejections and appeals. "You feel like you are a hybrid, not belonging to anywhere. You cannot go back. You cannot stay."
Fully funding an effort to reduce the backlog could gain bipartisan support, even from those who take a deterrence perspective. Reduced wait times discourage people from using the asylum system as a way to forestall deportation if they are not actually fleeing harm, according to many former government officials.
While the Trump administration hired judges and increased the court's budget to $673 million in 2020 from $422 million in 2016, many support staff roles such as clerks and translators were left out, and many judges retired over objections to the administration's practices.
The Biden administration could further clear the backlog by working with Congress to create programs other than the asylum system to grant permanent residency to people who meet certain criteria — essentially resetting the system.
This solution would likely be controversial in today's political climate, but it is not unheard of; it has been done before.
In the 1990s, the asylum system also got bogged down with cases.
In 1997, Congress ended up granting certain Central Americans the ability to stay in the United States without going through the asylum process, a system reset to clear out old cases and make sure newly filed cases could be processed fluidly. It gave green cards to just under 200,000 people, according to data from U.S. Citizenship and Immigration Services.
Charlene D'Cruz, director of Project Corazon with Lawyers for Good Government, said that Congress should consider doing a similar reset and start with people who were put into the "Remain in Mexico" program. There are more than 65,000 people with cases pending in the program's border courts, according to TRAC.
Congress could also consider creating a way to grant refugee status to groups of people fleeing a particular situation, such as the political oppression in Nicaragua under the regime of President Daniel Ortega or the discrimination and attacks faced by English-speaking Cameroonians.
This strategy is already used in other countries including Kenya, where the United Nations High Commissioner for Refugees has been invited by the government to manage the process of identifying refugees.
PROVIDE LEGAL AID TO ASYLUM-SEEKERS
Since immigration is considered a civil matter rather than a criminal one, people in immigration court have a right to be represented by an attorney if they can afford one — but not at the U.S. government's expense if they cannot.
In 2018, during the height of the public outcry over families being separated at the border, reports of toddlers standing alone before judges around the country astonished many Americans who were not familiar with U.S. immigration court practices.
Giving asylum-seekers more access to legal representation would make the system fairer, many advocates say, and could make it more efficient, too, saving the government money on other immigration court costs.
The attorney general could set up programs that provide lawyers to asylum-seekers — or even to everyone in immigration court proceedings — starting with the most vulnerable among them such as unaccompanied children.
Some states and local governments, including California and New York, have implemented programs to provide attorneys to some of the unrepresented at immigration courts in their area.
If funding attorneys for everyone is not politically feasible at the federal level, the attorney general could increase funding for legal orientation programs that support asylum-seekers who have to represent themselves.
These programs, operated by nonprofits in some detention centers, help people understand whether their cases match asylum criteria, how to fill out an asylum application and other basic legal questions that can seem impossible to figure out without an attorney's knowledge.
A 2012 audit of orientation programs that receive funding from the Department of Justice found that they saved the federal government a net of $17.8 million per year because they help people move through the court system more quickly.
Biden's attorney general could also revive a program that provided case management services to asylum-seeking families.
The program, which operated as a pilot from 2016 to 2017, matched families with social workers who helped them find lawyers, housing, schools and more while they waited for their cases. It reported 99% compliance with monitoring requirements and immigration court hearing attendance. It was shut down by the Trump administration.
END THE DETENTION OF ASYLUM-SEEKERS
Asylum-seekers, even those with no criminal history, often spend years in the prison-like conditions of U.S. detention centers after fleeing traumatic persecution in their home countries.
Attorney Elizabeth Lopez of the Southern California Immigration Project said that rethinking practices of detaining asylum-seekers would be in her top changes for the system — a change that either Congress or the White House could put in place.
But, Lopez said, that would have to be paired with either giving asylum-seekers work permits right away so that they can support themselves or creating services to assist asylum-seekers with housing, food and medical care if they are not allowed to work. Those adjustments would require congressional action.
Ruth Hargrove, another San Diego attorney, hoped politicians on both sides of the aisle could support this change because holding asylum-seekers in custody for years is expensive, in addition to going against humanitarian principles, she said.
It costs roughly $3,500 to hold an asylum-seeker in detention for one month, based on fiscal 2019 costs reported by the Department of Homeland Security. The government budgeted more than $3 billion for immigration detention in fiscal 2020.
Plus, detention often is not necessary to ensure compliance. A study from TRAC in 2019 found that more than 80% of migrant families — likely asylum-seekers — showed up for their immigration court hearings, and that number rose to more than 99% for families who had attorneys to help them.
The federal government has several alternatives to detention programs, such as requiring check-ins with federal officials, to help ensure that people show up for immigration court hearings at much lower costs than detention.
Hargrove recently helped a Cameroonian asylum-seeker get released from detention after about 20 months inside.
"There are all of these people languishing in prison, and their only crime is that they were trying to avoid death and torture in their home country," Hargrove said. "I can't even tell you the sense of betrayal that my client has. He really thought that America was going to save him, and no one was more surprised than he that he was immediately put in chains."
ACT AS AN EXAMPLE FOR OTHER WEALTHY COUNTRIES
Where asylum-seekers go to be recognized as refugees is often a matter of geography.
Countries neighboring current conflicts and crises tend to receive the most — if those countries allow them in.
About 85% of people forcibly displaced from their countries are living in places designated as "developing" economies by the United Nations.
Only some refugees in these countries end up resettled, chosen to move to a wealthier country.
In the past decade, even with the cuts to refugee resettlement put in place by the Trump administration, the United States resettled roughly 420,000 refugees who were waiting in limbo in other countries, according to data from the United Nations High Commissioner for Refugees, or UNHCR. That's more refugees than any other nation resettled.
But those numbers are small compared with the number of forcibly displaced people around the world, particularly those who need more stable protection than what is being provided in countries that require refugees to remain in camps or relegate them to second-class status.
The United States — like other wealthy nations — often gives money either to UNHCR ($1.7 billion in 2019) or directly to these developing countries to help with refugee situations rather than resettling more refugees.
There are currently roughly 33.8 million people who have been forcibly displaced outside of their countries of origin, according to UNHCR. That's less than 1% of the world's population.
Many refugee advocates emphasize that this is the highest number of displaced people on record. Their goal in that message is to encourage more aid.
But, according to researcher Benjamin Thomas White of the University of Glasgow, the levels of displacement are not an unprecedented crisis, and making the situation seem worse than ever can actually contribute to a push for xenophobic policies.
"We live in a period where the world is much wealthier than in the past," White said. "Our capacity of supporting is much greater."
What is important now, he said, is for countries with more wealth to step up and set an example for others with their asylum and resettlement policies. What is happening instead, he noted, is that wealthy countries are looking for ways to close their doors.
In a Union-Tribune analysis of data from the United Nations, the United States fell far below countries with fewer resources, as well as its wealthy peers, when it came to the number of displaced people hosted by a given country compared with its overall population size. An analysis comparing the number of displaced people hosted with a country's gross domestic product had similar results.
The U.S. State Department spent about $3,500 per resettled refugee in fiscal 2019 — the same as detaining an asylum-seeker for one month — to help them get situated with housing, food and other essentials, according to government records. That figure does not include local and state programs that refugees may qualify for, including Medi-Cal.
If asylum-seekers are granted protection, they are eligible for aid as well, though many don't know about it.
If the United States granted asylum to everyone who submitted an asylum application in fiscal 2019 and each received the same aid as resettled refugees, it would have cost the country just over $1 billion. That's a fraction of the more than $10 billion already spent on contracts for Trump's border wall, based on an analysis by ProPublica and the Texas Tribune.
And that doesn't take into account the potential long-term economic benefit that an influx of refugees can have.
Though receiving large groups of refugees at the same time can be daunting, said economics professor Sascha Becker of Monash University in Melbourne, Australia, host countries stand to gain economically in the long-term. That's because people who have experienced losing everything tend to focus on less material acquisitions, like education. That aspiration, Becker said, continues for generations.
"The focus is often on this short-term trouble. 'How do we deal with this? Where do we even settle them?'" Becker said. "We forget how things may look like in 20 years time."
MAKE THE ASYLUM SYSTEM LESS ADVERSARIAL
Some critics of the U.S. asylum system have advocated for making it look more like Canada's, another change that would require action from Congress.
In Canada, asylum-seekers are provided free legal representation and meet with an adjudicator — not a judge — to tell their stories. The adjudicator decides whether the asylum-seeker qualifies as a refugee.
The majority of cases do not involve a highly trained government attorney arguing against the asylum-seeker's ability to get protection.
A version of this process already exists in the United States. People who come to the U.S. with visas and request asylum after they are already here submit their cases to asylum officers with U.S. Citizenship and Immigration Services. There is no immigration judge and no adversarial attorney.
However, the majority of asylum-seekers in the United States don't go through that process and instead have their cases heard in immigration court because they arrived at the border without visas to enter the country.
Such a change would likely save the United States money, Brané of the Women's Refugee Commission noted, because running an administrative process wouldn't have as many costs involved as the courts do.
WORK WITH NEIGHBORING COUNTRIES TO CREATE STABILITY
It will take a regional effort to address the refugee situations just south of the United States, which have displaced more than 1 million people in recent years, according to the United Nations. Countries will have to work collaboratively to alleviate root causes — oppressive politics, widespread gang violence and corruption, economic disparities, gender-based discrimination and sexual violence, among others — most of which have only grown worse during the pandemic.
For the United States, experts say, that would mean implementing foreign policy that supports democracy in other countries, instead of tearing down democratic-minded leaders who oppose the United States to install U.S.-friendly rulers with authoritarian leanings — as has happened in the past.
It would also mean addressing exploitive business practices from U.S.-based companies that worsen the wealth gap in other countries and funding projects meant to grow local economies and educate and support youth.
Under the Obama administration, the United States began funding more civil society projects in Central America to work on some of the issues that force people to flee. The Trump administration cut that funding and instead focused on tying aid to governments' willingness to block movement north across their borders. The incoming Biden administration has committed to renewing funding to the region.
"Aid is important," said Daniella Burgi-Palomino, co-director and advocate at Latin American Working Group, "but it's much more about the quality of the aid rather than the quantity."
Aid should be targeted and fund on-the-ground organizations to make sure it's providing what communities actually need while avoiding money landing in the hands of corrupt officials, Burgi-Palomino said. The United States should also pressure governments in the region to do more to address human rights violations and to rein in corruption.
By advocating support for the countries' women and LGBTQ+ communities, and by pushing governments in the region to address gender-based and sexual violence, the United States could over time allay some of the persecution that causes many to end up at its borders.
PROCESS ASYLUM CLAIMS IN OTHER COUNTRIES
The journey to the U.S.-Mexico border is notoriously dangerous for any migrant, but the requirement to be on U.S. soil to access the asylum system means that refugees have to find a way to get to the border to request protection.
That often leaves them in the hands of human smugglers, who frequently kidnap them, assault them or worse.
Creating safe places where asylum-seekers could go to be screened for refugee status without having to travel through countries where they're seen as vulnerable targets could better protect them and deal a blow to the power that smuggling networks currently hold over the region.
Alan Bersin, a former Department of Homeland Security official from the Obama administration, has advocated for "safe zones" near Honduras, Guatemala and El Salvador.
Those spaces would have to be maintained in secure and humane conditions, said Maureen Meyer, vice president for programs and director for Mexico and migrant rights at the Washington Office on Latin America. And it would have to be part of a coordinated regional response, with countries committing to quickly resettling refugees — with a focus on family unity — once they've been identified.
That could prove challenging.
Resettlement in places where refugees already wait in limbo around the world, such as in Kenya or Uganda, can be a crushingly slow process.
For Patrick, 20, the wait took about five years — relatively quick compared with the decade or more that other refugees have waited.
He fled his home in the Democratic Republic of Congo when he was a child after losing his parents in the violence there. He spent the remainder of his childhood staying with his uncle in Uganda until they were accepted by the U.S. refugee resettlement program and moved to National City.
What he remembers from that time of waiting is the frustration, and the trauma of having to tell and retell his story to interviewers to determine whether he would be taken to the United States.
"When you're a refugee, you're waiting for your reprieve," said Patrick, who did not want to be identified by his full name. "They die over there. People suffer a lot over there waiting to get the welcome."
RECONSIDER HOW REFUGEE IS DEFINED
Under current U.S. asylum law, a legitimate fear of death is not enough to prove that someone merits protection.
Many Latin American countries have signed a treaty that includes widespread violence and rampant human rights violations as reasons that someone can receive protection. The United States is not part of that agreement.
Canada grants asylum to people fleeing domestic violence and gang violence. The United States today generally does not.
The U.S. system is disconnected from the realities of what people are fleeing, according to many migration experts.
"We're human beings. We're dynamic. We change. Why do we stick with old laws?" D'Cruz, the Project Corazon director, said. "There's so much change in the victimization of people. What are we going to do to keep up?"
Beyond any reconfiguring of asylum system logistics, if the United States wants to be a country that participates meaningfully in responding to refugee situations around the world, U.S. politicians and the public will have to ask themselves tough questions about who should be protected.
Climate change has already displaced many people around the world, particularly in places hit hard by drought or other natural disasters, like the recent hurricanes in Central America.
That kind of forced migration is likely to increase as climate change worsens, yet U.S. immigration law currently does not account for people fleeing these harms.
To adjust asylum law, Congress would need to pass legislation clarifying the requirements for asylum and make them more flexible for the future needs of forcibly displaced people.
Future attorneys general could, in the meantime, use their authority to redecide immigration cases — a power frequently used by the Trump administration to restrict asylum — and set new, more inclusive precedents.
It is hard to say whether any of these measures will be implemented in a meaningful way in the coming years, especially given the incoming president's ties to deterrence practices, such as increasing detention of asylum-seeking families, under the Obama administration.
What is certain is that situations forcing people to flee their homes will not stop, and those people will need a safe place to go.
(San Diego Union-Tribune staff writer Lauryn Schroeder contributed to this report.)
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