Denying Asylum at the Border

The First of Two Articles on the Senate Border Security Bill and the Political Climate

Most Americans reacted with horror to images of children separated from their parents and held in chain-link cages in Customs and Border Protection (CBP) detention centers kept so cold that they are nicknamed hieleras, or “iceboxes,” when the Trump administration’s family separation policy was in effect during the spring of 2018. There was similar outrage, although perhaps more muted, a few months later as asylum seekers were crowded into makeshift camps on the Mexican side of the U.S.-Mexico border as a result of the “Remain in Mexico” policy requiring asylum applicants, mostly from Central America, to stay in Mexico as they waited for their case to be adjudicated.

Donald Trump narrowly won election in 2016 with a campaign strategy that drew on harsh anti-immigrant rhetoric and promises to “build the wall.” Ironically, however, the policies implemented once Trump was in office, including those already mentioned, but also the so-called “Muslim ban” or “travel ban” and heightened enforcement efforts against undocumented immigrants by Immigration and Customs Enforcement (ICE), contributed to a dramatic swing of public opinion in a pro-immigrant direction. For example, for the first time since it had begun asking the question in 1965, Gallup reported that more Americans wanted to see an increase in immigration into the country than a decrease. Similarly, the number of Americans opining that immigration is a “good thing” for the country reached record highs during the last years of the Trump presidency (77 percent in May-June 2020). Perhaps most surprisingly, by 2019 a majority (57 percent) of Americans claimed they would support allowing refugees from Central America to come to the United States, an unusually high level of support compared to most previous refugee crises. It was as if Trump era policies had revealed the ugly reality behind nativist rhetoric, and the American public turned away.

This shift in public opinion on immigration came alongside the Catholic Church’s denunciations of Trump’s immigration policies. The United States Conference of Catholic Bishops (USCCB), although generally muted in its approach to the Trump administration, which it saw as an ally on issues like abortion and religious liberty, issued a series of rebukes of the administration on immigration matters. The USCCB’s then president, Cardinal Daniel DiNardo, Archbishop of Houston, and the USCCB Committee on Migration offered criticisms of the family separation policy, then Attorney General Jeff Session’s decision to exclude victims of gang violence and domestic violence from applying for asylum, cuts to the number of refugees admitted each year, and a proposed bill that would have drastically reduced the pathways for legal immigration, among other policies.

The USCCB’s prophetic stance was closely linked to Pope Francis’s ongoing focus on the plight of migrants and refugees, beginning with his visit to the Mediterranean island of Lampedusa in the first year of his pontificate. Francis had famously called for building bridges rather than walls when asked about Trump early during the 2016 campaign. In his 2020 social encyclical Fratelli Tutti, he laid out several guidelines for how the international community could respond to the worldwide migrant and refugee crisis (particularly ##129-132). According to Francis, the key principle that should govern migration policy, and the treatment of refugees and asylum seekers in particular, is “[W]e are obliged to respect the right of all individuals to find a place that meets their basic needs and those of their families, and where they can find personal fulfilment” (#129), a principle with biblical roots and that has been expressed in Catholic social teaching at least since the pontificate of Pius XII. He goes on to say that the implementation of this policy should center around four tasks: “welcome, protect, promote and integrate” (#129). Asylum policy should be built around the rights of migrants and ensuring that their basic needs are met as they are welcomed and integrated into their new home (#130).

President Joe Biden, only the second Catholic president in the history of the United States, came to office in January 2021 promising to undo many Trump-era immigration policies and to implement comprehensive immigration reform and a more humane approach to asylum. Indeed, the Biden administration did quickly reverse some policies, including the travel ban, the construction of the border wall, and the Migration Protection Protocols (the “Remain in Mexico” policy, although the termination of this policy was held up in court until 2022). In 2021, President Biden also directed ICE to focus its enforcement efforts on more serious criminal offenders, a shift away from Trump administration policy that had made practically any undocumented immigrant a potential target of ICE enforcement efforts.

Nevertheless, just last month, President Biden stated that he looked forward to having the authority to “shut down the border,” restricting entry to asylum seekers attempting to enter the country at the southern border. These remarks were made in support of a bipartisan Senate bill that would have put strict limits on the number of people who can make asylum claims at the border and made it more difficult for people to successfully have their asylum claims approved. Biden’s support for the bill follows a series of other policies meant to limit asylum claims at the border. And it is not just Biden who has shifted his position on immigration; the majority of Senate Democrats, including Senate Majority Leader Chuck Schumer, supported the border security bill. And, unlike the compromise bill proposed in 2018—providing funding for a border wall in exchange for a permanent legal status for DACA recipients—that was ultimately scuttled by President Trump, the more recent border security bill “compromise” offers very little in terms of pro-immigrant policy. Bishop Mark Seitz of El Paso, the current chair of the USCCB’s Committee on Migration, recently denounced the bill for undermining the U.S.’s commitment to humanitarian protections. How did we reach a point where there is now an apparent bipartisan consensus around a set of policies that only four years ago would have been dismissed as nativist, extremist, and out of step with public sentiment? How should Catholics, following the lead of Pope Francis and Bishop Seitz, respond to a situation in which it seems that indifference to the plight of migrants, particularly asylum seekers at the southern border, is pervasive? I will attempt to address the first question in this post, and the second in a later post.

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To begin, I think it is important to explain how U.S. asylum policy has worked in the past and how it has changed under both the Trump and Biden administrations. So, first a definition: An asylum seeker is a person who is fleeing violence or persecution in their home country, and who seek residence, whether temporary or permanent, in a new country. An asylum seeker differs from a refugee in that the latter apply for residence in the new country from elsewhere, while an asylum seeker applies for asylum from within the destination country. Asylum seekers and refugees, who are fleeing violence or persecution, are generally distinguished from immigrants, who seek residence in another country for economic or family reasons, although in practice the distinction can become blurry.

In the United States, there are two ways to apply for asylum. The first, affirmative asylum, is when a person applies for asylum upon arriving at a port of entry (which includes not just airports and seaports, but CBP stations along both the northern and southern border) or while already in the United States on a temporary legal basis. Defensive asylum, on the other hand, is when a person makes an asylum claim after having removal proceedings initiated against them, for example when someone overstays a visa. An asylum seeker can also make a defensive asylum claim by crossing the border illegally and then presenting themselves to a Border Patrol officer. In fact, it is this latter situation which is at the heart of the current border crisis.

That fact is crucial because it illustrates how the immigration issue, and particularly the question of border security, has shifted over the years. In 2003, when the U.S. Catholic bishops and the bishops of Mexico produced their pastoral letter on migration, Strangers No Longer: Together on the Journey of Hope, the primary border issue was migrants, primarily from Mexico but to a lesser extent from Central America and elsewhere, illegally crossing the border in order to seek out employment and raise families while living in the shadows as a result of their undocumented status. That continued to be the case well into the Obama administration, when migration from Mexico declined and the number of migrants from Central America, particularly the “Northern Triangle” of Guatemala, El Salvador, and Honduras, dramatically increased. These migrants were fleeing the gang violence ravaging those three countries, as well as other forms of violence like domestic violence, and rather than disappearing into the shadows upon arriving in the U.S., many deliberately inserted themselves into the U.S. immigration system, seeking to be granted asylum status and a chance at a new life.

So, here is how the asylum process worked for a person who presented themselves to a Border Patrol officer prior to Trump’s inauguration in 2017. An asylum seeker detained at the border undergoes a “credible fear interview” with an asylum officer, a screening process to decide if the migrant has a plausible case for asylum. If the asylum seeker is deemed not to have a credible fear of persecution in their home country, they are then subject to being deported, although they have the right to appeal the decision. If they pass the interview, however, they are allowed to enter and remain in the United States until a court hearing before an immigration judge who will more thoroughly adjudicate their asylum case (a policy sometimes referred to as “catch and release”). This allows the asylum seeker to find an attorney and gather the necessary evidence for their case. This process creates a number of problems, however. First, asylum seekers cannot get a work permit until they win their case or 180 days after their initial hearing, whichever comes first, leaving many asylum seekers dependent on charities for survival. Second, there is an enormous backlog of asylum cases, meaning it could take years before a case is heard. Third, and in part a result of the prior two problems, there is the risk that asylum seekers can ignore their court proceedings and remain in the U.S. as undocumented immigrants. In fact, many (although precisely how many is disputed) asylum seekers have relatively weak asylum claims and are using the asylum system as an alternative to going through the difficult process of obtaining an employment or family-based visa, which are limited in availability and can have an even longer wait time than the asylum process.

Some of the most controversial Trump administration immigration policies were really attempts to stop the flow of migrants into the U.S. through the catch and release policy described above. The family separation policy was linked to another directive referred to as the “zero-tolerance” policy. Under catch and release, asylum applicants were released into the community unless there was a record of them having committed a serious crime (either in the U.S. or in their home country), in which case the migrant would be held in detention. The zero-tolerance policy made illegally crossing the border itself an infraction requiring detention, meaning that every adult who crossed the border and presented themselves for asylum would be detained, thus putting an end to catch and release. Because children could not be detained with their parents in these situations, this meant that children would be separated from their parents and eventually placed into the custody of the Office of Refugee Resettlement, a branch of the Department of Health and Human Services. This set of policies led to the horrible images that enraged much of the nation. The threats of both long-term detention and being separated from one’s children were intended by the Trump administration to deter migrants from even attempting to cross the border.

The zero-tolerance policy proved unworkable and was cancelled after only two months; rather than deterring migrants from crossing the border, it led to overcrowded detention centers. The focus, then, shifted to trying to prevent migrants from entering the country at all. In November 2018, President Trump attempted to prohibit asylum claims raised by those crossing the U.S.-Mexico border except at ports of entry, but this move was struck down by the courts. Then in January 2019, the Department of Homeland Security implemented the Migrant Protection Protocols, or the Remain in Mexico policy. This policy attempted to eliminate catch and release by requiring asylum applicants to await their court hearings in Mexico. The new policy required a diplomatic agreement with Mexico according to which the latter would allow the migrants to stay in that country. At first, the migrants removed to Mexico formed makeshift camps, and local communities in Mexico were often hostile to them. Many of the migrants removed to Mexico became victims of rape, kidnapping, and other crimes. In July of that year, the Departments of Homeland Security and Justice further specified that migrants that had crossed through another country without applying for asylum there first would be denied asylum in the U.S., thus barring most Central Americans from applying for asylum.

In 2020, the Remain Mexico policy was essentially superseded by what came to be called “Title 42.” A reference to the section of the U.S. code dealing with public health, in this instance it refers more specifically to a rule allowing the Centers for Disease Control and Prevention (CDC) to restrict the entry of non-citizens into the U.S. for public health reasons. The Trump administration used this rule to expel migrants to their home countries without any hearing. Although justified as a measure to prevent the spread of COVID-19, the use of Title 42 was clearly intended as an anti-immigration measure, since it left untouched the hundreds of thousands who travel across the U.S.-Mexico border through ports of entry every day.

(Photo: Barbara Zandoval, Unsplash)

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So things stood when President Biden took office in January 2021. Although, as I already mentioned, the Biden administration has made some positive changes to immigration policy, when it comes to the border, the administration has seemed to prioritize the appearance of having the border “under control” rather than the nation’s legal and humanitarian obligations toward asylum seekers. As I will hopefully discuss in a later post, this strategy has wildly backfired.

In practical terms, although the Biden administration ended the Remain in Mexico policy, it maintained Title 42 well into 2023, leading to the expulsions of thousands of migrants, sometimes more than a hundred thousand, per month without due process. The CDC moved to end the Title 42 policy in April 2022, but the decision was held up in court until May 2023 when the Biden administration ended the COVID-19 national emergency.

In the meantime, the demographic composition of migrants seeking entry at the southern border has dramatically shifted, a fact many Americans don’t yet realize. Beginning in late 2021, the number of migrants arriving from four countries—Venezuela, Colombia, Cuba, and Nicaragua—began increasing rapidly, and by 2022 unauthorized attempts to cross the border by migrants from these countries surpassed those of migrants from the Northern Triangle. This new wave of migration is driven by economic crisis and political repression or violence in those four countries. The demographic shift also impacted U.S. enforcement efforts—Mexico refused to accept migrants from these countries expelled under Title 42, and the lack of diplomatic relations between the U.S. and Venezuela, Cuba, and Nicaragua made it impossible for the U.S. to arrange for migrants to be expelled back to their home countries. Until recently, migrants from these countries were therefore allowed to stay in the U.S. and pursue asylum claims.

The end of Title 42 did not result in a return to the status quo ante in terms of admitting asylum seekers. The Biden administration has attempted to provide limited avenues for migrants to come legally to the United States while limiting the opportunities to apply for asylum. Most notably, at the beginning of 2023, the administration created what is called a humanitarian parole program for individuals from Venezuela, Cuba, Nicaragua, and Haiti allowing people to reside in the U.S. for up to two years. Humanitarian parole is traditionally granted to individuals on a case-by-case basis, for example to receive medical treatment in the U.S. or to attend a funeral, but in this case citizens of those four countries who meet certain criteria are eligible, making it somewhat similar to Temporary Protected Status, which allows nationals of designated countries affected by war or natural disaster to temporarily remain in the U.S.

At the same time, however, the administration has barred residents of the four countries eligible for the parole program from applying for asylum. Perhaps even more significantly, the Trump-era rule barring those who have crossed through a third country from seeking asylum was reinstated. The Biden administration strategy seems to be to provide legal avenues for entering the country other than asylum and that bypass the border while significantly restricting asylum. The parole program, however, requires applicants to find a sponsor in the United States who can provide financial support for them throughout the two years and sufficient money to afford a plane ticket, and likewise there is already at least a five-year waiting list to be processed, making it inaccessible to most people seeking refuge in the U.S.

The recent Senate border security bill (the “Emergency National Security Supplemental Appropriations Act”) would place even more drastic limitations on the asylum process. Some of the bill’s key features include:

• Permitting the Secretary of Homeland Security to prohibit migrants from entering the U.S. over the U.S.-Mexico border (with the exception of unaccompanied minors), without judicial review, if border officials encounter an average of 4,000 or more migrants per day over seven days;

• Requiring the Secretary of Homeland Security to exercise the same authority if officials encounter an average of more than 5,000 migrants per day over seven days;

• Requiring asylum seekers to meet a higher standard of proof of a credible fear of persecution in their initial hearing with an asylum official, and providing them limited rights to appeal if denied entry;

• Asylum seekers’ second hearing, or appeal of a negative decision in the initial hearing, will be heard by an asylum official, not an immigration judge, and will be held within 90 days of the initial hearing;

• Making migrants who successfully pass through their initial hearing will be immediately eligible for a work permit;

• Providing increased funding for CBP and ICE;

• Providing funding to hire additional asylum officials and immigration judges;

• Establishing a path to legal status for Afghan evacuees already in the United States through a humanitarian parole program;

• Authorizing an additional 50,000 combined family-based and employment-based visas each year for the next five years;

• Closing a loophole in which the children of long-term visa holders (“Documented Dreamers”) lose their legal status when they turn 21.

Obviously, some aspects of the bill are praiseworthy, such as the provision making asylum seekers immediately eligible for work permits and the program for “Documented Dreamers.” The meat of the bill, however, like prior Biden administration policy, is focused on making it more difficult for migrants to claim asylum while providing piecemeal avenues for legal migration that, despite their intentions, would remain out of reach for the majority of migrants.

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As Bishop Seitz has forcefully made clear, the border security bill is not guided by the same priorities as the Catholic approach to welcoming migrants, especially those seeking humanitarian protection. Rather than basing policy around protecting the rights of those fleeing violence and disorder, the bill seems to treat asylum seekers as a threat to security and the situation at the border a public relations crisis. Although one could make the case for a comprehensive bill that restricts asylum to the most clear-cut cases while opening other legal pathways for the majority of migrants currently seeking to cross the border (as the Migration Policy Institute has advocated), the current bill does not do this. It does not adequately protect the rights of asylum seekers, nor provide sufficient, accessible avenues for legal migration.

And yet, the political climate makes such a bill, or a more humane reform of the asylum system, practically impossible. The border security bill was negotiated in part by Democrats in a Democrat-controlled Senate and was endorsed by a Democratic president. When Democrats are touting the endorsement of the Border Patrol union, which gladly supported the worst of Trump’s policies, endorsed him in both 2016 and 2020, and whose leaders have openly supported the white nationalist “Great Replacement Theory” conspiracy, something has clearly changed in the political climate. In a subsequent post, I will discuss how Catholics who take to heart the teachings of the U.S. bishops and Pope Francis should understand and respond to this new situation.

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Of Interest…

• As most readers know, I extensively covered the Synod on Synodality last October and the synodal process that preceded it. The plans for the follow-up synodal gathering this October are now taking shape. Pope Francis announced that this year’s Synod will be held from October 2 to October 27, with a two-day retreat on September 30 and October 1. He also announced that study groups consisting of Vatican officials from the relevant dicasteries will be formed, and in collaboration with the General Secretariat of the Synod will explore issues raised in the prior Synod’s final document. It is not yet known what the topics of study will be, although my guess would be that the study groups will examine the doctrinal and canonical limits and possibilities for some of the proposals raised in the final document. Finally, six new consultors or advisers to the General Secretariat were announced. Probably the most well-known to American readers is Tricia Bruce, a sociologist who is the Director of the Springtide Research Institute and an affiliate of Notre Dame’s Center for the Study of Religion and Society. She has written on parish life and conflict and polarization in the Catholic Church, among other topics.

• In the past, I’ve written on the Vatican’s opposition to the German Catholic Church’s plan to establish a Synodal Council, a kind of governing body that would have authority over individual bishops, a project that arose out of the controversial German Synodal Way, a series of conferences that took place between 2019 and 2023. The German Church had nevertheless carried on with plans to eventually establish the Synodal Council by first creating a synodal committee that would flesh out the plans for the council. This past weekend, however, the Vatican sent the German bishops, gathered in their plenary assembly, a letter asking them not to vote on the statutes for the synodal committee, and the bishops complied. The Vatican cited upcoming talks between curial officials and the German bishops over the issue as a reason to hold off.

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Coming Soon…

• As I mentioned above, I plan on writing a follow-up to today’s article on the recent Senate border security bill soon, hopefully next week.

• In last week’s article for paid subscribers, I discussed recent theological work on the traditional notion of material cooperation with evil and its relationship to the more recent concept of social sin. In next week’s article for paid subscribers, I want to further explore the concept of material cooperation, looking at its historical background.

• This past weekend, the Los Angeles Religious Education Congress, or RECongress, the largest annual gathering of Catholics in the United States, met. Last year around this time, I wrote a summary of some of the key themes from that year’s conference (one of the first articles at Window Light!), focusing in particular on the keynote addresses. I plan to do the same this year, in two weeks at the earliest. I have already started making my way through the videos of the plenary addresses.

• And speaking of a year ago, later this week I will announce a special promotion celebrating the one-year anniversary of the Window Light newsletter, which officially will be February 25. Look for it!