Beyond A Border Solution - Humanitarian Protection

 May 3, 2023

For generations, the United States has been a place of safe haven for people seeking freedom and safety. In 1980, Congress passed the Refugee Act, codifying basic refugee protections into law and enshrining a global commitment to asylum which emerged from the tragedy of the Holocaust. In the decades since then, hundreds of thousands of refugees and asylees have been granted status, strengthening communities around the nation, contributing economically, and enriching the national fabric.

But in the 21st century, a global displacement crisis is affecting nearly every country in the world. Multiple nations across the Western Hemisphere have become destabilized due to a wide variety of factors, including rising authoritarianism, political assassinations, natural disasters, powerful transnational criminal organizations, climate change, and the global socioeconomic shocks of the COVID-19 pandemic. The end result is humanitarian migration at levels far above what the 20th-century system can handle.

Presidential administrations of both parties have failed to meet this challenge. Instead of an orderly, humane, and consistent approach to humanitarian protection and border management, we have been left with a dysfunctional system that serves the needs of no one: not the government, border communities, or asylum seekers themselves.

Today, the U.S. government faces an enormous challenge. The number of asylum seekers seeking to enter each day is significantly higher than the number the United States can process at official border crossings. The location and manner of crossings varies widely across the border, often changing unpredictably based on misinformation, rumor, or the demands of powerful transnational criminal organizations which maintain control over many of the migration routes with a bloody fist. The system is constantly at risk of bottlenecks and overcrowding, building the perception of chaos at the border. And inside the United States, underfunding, neglect, and deliberate sabotage have left the adjudicatory process in shambles.

The failure to build a modern and functional system of humanitarian protection extends throughout the asylum process. There are currently over 1.3 million pending asylum applications, including roughly 750,000 in immigration courts and over 600,000 at U.S. Citizenship and Immigration Services (USCIS). The average asylum case in immigration court now takes 4.25 years from start through a final asylum hearing, leaving those with meritorious claims stuck in legal limbo and those whose claims are denied facing the prospect of deportation after they have already put down roots in the United States. Decades-old laws require asylum seekers to wait months to gain work authorization, leaving communities inside the United States to step in and help people get on their feet.

Rather than making a sustained investment into building a better system, past presidential administrations have attempted over and over again to instead use aggressive enforcement- and deterrence-based policies in hopes of reducing the number of people who are permitted to apply. The failure of this approach is manifest: No one thinks that the problem has been solved or even alleviated. Making matters worse, constant shifts in policy due to international negotiations, federal litigation, and border agents’ own discretion make it virtually impossible to articulate what the current policy toward asylum seekers at the southern border actually is.

Crucially, there is still hope. Restoring our humanitarian protection systems and breaking the cycle of crises and crackdowns is not only possible, but within reach. However, to do so, we need a major shift in thinking and policymaking. Politicians must abandon a fantasy of short-term solutionism and acknowledge that only sustained investment over a period of time can realistically address these 21st century challenges. Therefore, short-term action must focus on establishing a viable path towards a better system. In the long term, with significant investment, we can create a flexible, orderly, and safe asylum process.

Rebuilding a functional system does not require a radical overhaul of U.S. immigration law. Nor will it lead to open borders. Even if every recommendation in this report is implemented, those without meritorious claims will still be deemed ineligible for relief and ordered deported. But taking that reality seriously also obligates the government to get it right — and ensure that no one is deported to a country where they will be persecuted. Adherence to the rule of law means both that those who seek to live here agree to abide by the government’s rulings, and in return that the government upholds our longstanding commitment to respect human rights and international humanitarian agreements as well as provide a fair day in court for all those who seek it.

Creating and funding a flexible, orderly, and safe asylum system will reduce both irregular entries and unjust outcomes. Investment in dedicated humanitarian processing infrastructure at the border and in receiving communities will reduce unexpected fiscal burdens, limit strain on law enforcement resources, and improve human rights. Moreover, a humanitarian protection system that is purged of arbitrary delays and inconsistent outcomes will produce fairer and more expeditious results. Asylum seekers with meritorious claims will be more likely to prevail when provided with a meaningful opportunity to present them. Conversely, a fair, transparent, and expeditious asylum process may reduce claims from those without meritorious cases, and those who are denied will be more likely to accept negative results from a fair and transparent process.

A revitalized modern humanitarian protection system will also dampen political backlash to the concept of asylum in a time of rising anti-migrant sentiment. While overall support for providing asylum continues to poll above 50 percent, chaotic scenes at the border have dampened public support for asylum. And while some critics will oppose any measures that permit asylum seekers to enter the country, the right to seek asylum is central to this country’s historical commitment to welcoming those fleeing persecution and to most Americans’ understanding of their nation as a global and moral leader. Turning away from asylum seekers would be a more radical break than improving the system to support them.

To begin the work on creating a viable path towards a better system, we provide the following recommendations:


Expand Customs and Border Protection’s (CBP) Office of Field Operations’ capacity to process asylum seekers at ports of entry in a timely, orderly, and fair manner, and publicize this route.

Surge resources to U.S. Border Patrol to improve humanitarian processing and transportation of migrants, to reduce overcrowding and abuses, and to free up agents to carry out other law enforcement duties.

Establish a Center for Migrant Coordination to coordinate federal, state, and local efforts to support newly arrived migrants and reduce impacts on local communities.

Grow federal support for case management alternatives to detention to help migrants navigate the asylum system.

Revamp asylum processing at USCIS to keep up with both affirmative asylum backlogs and the new border processing rule.

Begin clearing immigration court asylum backlogs through the use of prosecutorial discretion.

Construct noncustodial regional processing centers where federal agencies are co-located with nongovernmental organizations (NGOs) to carry out processing, coordinate release, and provide effective case management for newly-arrived migrants.

Prepare for and terminate Title 42 once legally permitted, allowing a return to normal immigration law.

Fund a right to counsel in immigration court to ensure a fair process for individuals seeking asylum.

10 Create a Federal Emergency Management Agency (FEMA)- based Emergency Migration Fund to provide for a flexible and durable response during times of high migration.

11 Increase legal immigration pathways through congressional overhaul of immigration laws and executive expansion of existing pathways.

12 Build domestic and international refugee and asylum processing capacity in Latin America with the support of the United Nations High Commissioner for Refugees (UNHCR) and the international community.

13 Bring asylum law into the 21st century, lifting harmful antiimmigrant laws passed in the 1990s and moving past a post-World War II framework for asylum.

Through these recommendations, we believe the United States government can create a system for asylum processing that is flexible, orderly, and durable, respects the rights of asylum seekers, inspires confidence in the American public, and ensures that the United States remains a beacon of safety. Such a system will not only ensure that the United States lives up to its promises, but also ensure greater stability across Latin America by reducing the power of gangs and cartels and promoting human rights throughout the region.

This is undoubtedly an enormous challenge. There is no perfect solution. It will require compromises. However, the last decade of inhumane and failed deterrence policies has shown us there is no real alternative. Only through bolstering meaningful access to humanitarian protection can we move forward towards a more just, humane, and fair future. This is the only way to ensure that both migrants and the United States remain safe and free.


Iowa Web design & development by Visionary Services