Tag: Nicaraguans

Washington Post Editorial: Improving U.S. Asylum Law and Procedures

An editorial in the Washington Post starts by saying the obvious: the current U.S. asylum policies and procedures are not working and that this is due to lack of resources (insufficient number of immigration judges and facilities to house immigrant families).[1]

In addition, the editorial says “the best policies are those that open new doors. The offer of ‘humanitarian parole’ for Cubans, Haitians and Nicaraguans applying from their home country radically cut border encounters.”

Thus, the editorial concludes, “A bipartisan agreement — more border resources and procedural reforms, in return for more avenues in — has the best shot of fixing the border.”

It, however, failed to address the more challenging issues of what resources in what amounts should be added and details on what new avenues into the U.S. should be adopted.

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[1] Editorial, Here’s a deal to restore asylum and order, at the border, Wash Post (Nov. 27, 2023).

 

Need To Improve U.S. Asylum System     

The U.S. asylum and immigration system is broken and needs to be fixed, so says a Washington Post editorial. [1]

It points out that the current system “was being rendered untenable by the sheer number of migrants crossing the U.S.-Mexico border in recent years, each with a legal right to press an asylum claim. Between those assigned to Justice Department immigration courts and Department of Homeland Security asylum officers, the backlog of cases has reached roughly 1.6 million, according to the Transactional Records Access Clearinghouse (TRAC) at Syracuse University. It can take years just to get a hearing in immigration court.”

“Instead of the selective, humanitarian adjunct to general immigration flows that the law intended, asylum is evolving into an open-ended parallel system. The backlog encourages people to make a dangerous and expensive trip to the U.S. border, knowing that — even if their asylum cases are weak — they can live and work in the United States for years pending a ruling. Even those whose claims are rejected, as they were in most final rulings over the past decade, seldom face prompt removal. Meanwhile, those with strong claims wait longer than they should.”

Given congressional inability to develop and enact a comprehensive reform statute, the Biden Administration has developed short-term fixes. One announced on January 5th related to attempted border crossings by Cubans, Haitians, Nicaraguans and Venezuelans, resulting in a 97 percent decrease in attempted border crossings by these people. Another one from 2022 allowed asylum officers from the Department of Homeland Security to determine migrants eligibility for asylum, subject to potential appeals to an immigration judge, but DHS lacks personnel to handle many cases.

Conclusion

As a former pro bono asylum lawyer, this blogger has lamented these many problems with the U.S. immigration and asylum system and the inability and refusal of Congress to take action to address these problems, which now seems exacerbated with the Republicans barely controlling the House of Representatives.[2]

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[1] Editorial, Asylum has become a parallel immigration system. Here’s how to fix that, Wash. Post (Jan. 31, 2023).

[2] See these posts to dwkcommentaries.com: Need To Prod Congress To Enact the Afghan Adjustment Act (Dec. 17, 2022); Apparent Failure To Enact Bipartisan Immigration Bills (Dec. 18, 2022); Congress Fails to Adopt Important Immigration Legislation (Dec. 28, 2022); Department of Homeland Security Announces Important Proposed Rules To Improve Immigration Laws and Border Security (Jan. 5, 2023); President Biden’s Argument for New Asylum/Border Policy (Jan. 7, 2023); U.S. Adopts Confusing New Program for Resettling Certain Foreigners (Jan. 20, 2023). See also List of Posts to dwkcommentaries—TOPICAL: LAW (REFUGEE AND ASYLUM).

 

 

 

Department of Homeland Security Announces Important Proposed Rules To Improve Immigration Laws and Border Security

On January 5, 2023, the U.S. Department of Homeland Security  (DHS) announced that it is continuing to prepare for (a) “the end of the Title 42 public health order” that calls for the U.S. to refuse to admit certain migrants at the U.S. borders and (b) the “return to processing all noncitizens under the Department’s Title 8 immigration authorities.” [1}

To that end, the DHS announcement stated the following:

  • “DHS is establishing new parole processes for Cubans, Haitians, and Nicaraguans, modeled on the successful processes for Venezuelans and Ukrainians, which combine safe, orderly, and lawful pathways to the United States, including authorization to work, with significant consequences for those who fail to use those pathways. We are also continuing the process with respect to Venezuelans.”
  • “Through the CBP One app, we are also providing a new mechanism for noncitizens to schedule appointments to present themselves at ports of entry, facilitating safe and orderly arrivals. Initially this will be used for those seeking an exception from the Title 42 public health order. Once the Title 42 order is no longer in place, CBP One will be used to help ensure safe and orderly processing at ports of entry.”
  • “DHS is increasing and enhancing the use of expedited removal under Title 8 authorities for those who cannot be processed under the Title 42 public health order. These efforts include surging personnel and resources and enrolling individuals under the asylum processing interim final rule published in March 2022.”
  • “As a complement to these efforts, and in response to the unprecedented surge in migration across the hemisphere and to reduce encounters at our border, DHS and the Department of Justice (DOJ) intend to shortly issue a proposed rule that will, subject to public comment, incentivize the use of the new and existing lawful processes available in the Unites States and partner nations, and place certain conditions on asylum eligibility for those who fail to do so.”
  • “DHS will continue to monitor developments on the southwest border and will accelerate or implement additional measures, as needed, consistent with applicable court orders.”

The DHS Secretary, Alejandro N. Mayorkas, commented on these changes: “We can provide humanitarian relief consistent with our values, cut out vicious smuggling organizations, and enforce our laws.  Individuals without a legal basis to remain in the United States will be subject to prompt expulsion or removal. Individuals who are provided a safe, orderly, and lawful path to the United States are less likely to risk their lives traversing thousands of miles in the hands of ruthless smugglers, only to arrive at our southern border and face the legal consequences of unlawful entry.”

Country-Specific Enforcement Processes

Last October DHS established “a safe and lawful pathway” for Ukrainians and Venezuelans to enter the U.S. and “a consequence for failing to use that pathway,” and the January 5th announcement “establishes similar processes for Cubans, Haitian, and Nicaraguan nationals who face unique challenges in their home countries” while “the Venezuelan process also will continue.”

“These processes will provide a lawful and streamlined way for qualifying nationals of Cuba, Haiti, Nicaragua, and Venezuela to apply to come to the United States, without having to make the dangerous journey to the border. Through a fully online process, individuals can seek advance authorization to travel to the United States and be considered, on a case-by-case basis, for a temporary grant of parole for up to two years, including employment authorization, provided that they: pass rigorous biometric and biographic national security and public safety screening and vetting; have a supporter in the United States who commits to providing financial and other support; and complete vaccinations and other public health requirements. . . .These processes will allow up to 30,000 qualifying nationals per month from all four of these countries to reside legally in the United States for up to two years and to receive permission to work here, during that period.”

However, this new process “is contingent on the Government of Mexico’s willingness to accept the return or removal of nationals from those countries. It also is responsive to a request from the Government of Mexico to provide additional legal pathways for migrants, and it advances both countries’ interests in addressing the effects throughout the hemisphere of deteriorated conditions in these countries.”

Safe and Orderly Processes at Ports of Entry

“To facilitate the safe and orderly arrival of noncitizens seeking an exception from the Title 42 public health order, DHS is expanding use of the free CBP One mobile app for noncitizens to schedule arrival times at [the following] ports of entry: [Arizona: Nogales; Texas: Brownsville, Hidalgo, Laredo, Eagle Pass, and El Paso (Paso Del Norte); and California: Calexico and San Ysidro (Pedestrian West – El Chaparral).]”

“Individuals do not need to be at the border to schedule an appointment; expanded access to the app in Central Mexico is designed to discourage noncitizens from congregating near the border in unsafe conditions. Initially, this new scheduling function will allow noncitizens to schedule a time and place to come to a port of entry to seek an exception from the Title 42 public health order for humanitarian reasons based on an individualized assessment of vulnerability. This will replace the current process for individuals seeking exceptions from the Title 42 public health order, which requires noncitizens to submit requests through third party organizations located near the border.”

“Once the Title 42 public health order is no longer in place, this scheduling mechanism will be available for noncitizens, including those who seek to make asylum claims, to schedule a time to present themselves at a port of entry for inspection and processing, rather than arriving unannounced at a port of entry or attempting to cross in-between ports of entry. Those who use this process will generally be eligible for work authorization during their period of authorized stay.”

“During their inspection process, noncitizens must verbally attest to their COVID-19 vaccination status and provide, upon request, proof of vaccination against COVID-19 in accordance with Title 19 vaccination requirements.”

Enhanced Use of Expedited Removal

“We will comply with the court orders that require us to continue enforcing the Title 42 public health order. There are, however, migrants who cannot be expelled pursuant to Title 42 authorities and as a result are processed under Title 8 authorities. For those processed under Title 8, we are increasing and enhancing our use of expedited removal, which allows for the prompt removal of those who do not claim a fear of persecution or torture or are determined not to have a credible fear after an interview with an Asylum Officer, in accordance with established procedures.”

“This enhanced expedited removal process will include: dedicating additional resources including personnel, transportation, and facilities; optimizing processes across DHS and DOJ; and working with the State Department and countries in the region to increase repatriations. We also will continue to process individuals under the interim final rule published in March 2022 outlining procedures for U.S. Citizenship and Immigration Services to process asylum requests for noncitizens found to have a credible fear. Together, these measures will allow for the prompt removal of those who do not have a legal basis to stay and improve our overall preparedness for when the Title 42 public health order is lifted. Individuals removed under Title 8 are subject to a five-year bar on admission and potential criminal prosecution should they seek to reenter.”

Notice of Proposed Rulemaking

“DHS and DOJ intend to issue a proposed rule to provide that individuals who circumvent available, established pathways to lawful migration, and also fail to seek protection in a country through which they traveled on their way to the United States, will be subject to a rebuttable presumption of asylum ineligibility in the United States unless they meet exceptions that will be specified. Individuals who cannot establish a valid claim to protection under the standards set out in the new rule will be subject to prompt removal under Title 8 authorities, which carries a five-year ban on reentry.”

“Taken together, these efforts will: reduce irregular migration by disincentivizing migrants from taking the dangerous journey to the southwest border of the United States and attempting to cross without authorization; significantly expand lawful pathways to the United States for vetted individuals; and reduce the role for – and profits of – smuggling networks that callously endanger migrants’ lives for personal gain.”

“These new measures complement ongoing efforts to increase refugee resettlement from the Western Hemisphere. The U.S. Government intends to welcome at least 20,000 refugees from Latin America and the Caribbean in Fiscal Year 2023 and 2024, putting the United States on pace to more than triple refugee admissions from the Western Hemisphere this Fiscal Year alone. This delivers on the President’s commitment under the Los Angeles Declaration for Migration and Protection to scale up refugee admissions from the Western Hemisphere.”

DHS “is taking these measures in light of Congress’s failure to pass the comprehensive immigration reform measures President Biden proposed on his first day in office and the economic and political instability around the world that is fueling the highest levels of migration since World War II, including throughout the Western Hemisphere. . . . The actions announced today are part of the Biden-Harris Administration’s ongoing commitment to enforce our laws and build a fair, orderly, and humane immigration system, and build on efforts outlined in the Department’s December 2022 Update on Southwest Border Security and Preparedness. Today’s announcements also show the imperative of partner countries working together, as agreed in the Los Angeles Declaration following the Summit of the Americas, to take action against smugglers and provide protection to asylum seekers. Hemispheric challenges require hemispheric solutions.”

“The steps we are taking reflect the constraints of our outdated statutes, which have not been updated in decades and were designed to address a fundamentally different migratory reality than that which exists today along the southwest border and around the world. As it has since its first day in office, the Biden-Harris Administration continues to call on Congress to pass legislation that strengthens border security, holistically addresses the root causes of migration, and improves legal pathways. We also encourage Congress to provide critical funding and advance bipartisan efforts to create a fair, fast, and functioning asylum system – enabling those who merit protection to quickly receive it, and those who do not to quickly be removed. In the absence of such action, the Administration is committed to pursuing every avenue within its authority to secure our borders, enforce our laws, and stay true to our values as we build safe, orderly, and humane processes.”

This Blog’s Reaction to the DHS Announcement

This blog recently has criticized the failures of Congress and the Administration to attempt to modify and update the many failings in our immigration laws.[2] Thus, DHS needs to be congratulated for making this timely and cogent announcement of ways to meet these challenges while all others involved in making, enforcing and complying with these laws need to rise to the challenges.

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[1]  DHS, DHS Continues to Prepare for the End of Title 42; Announces New border Enforcement Measures and Additional Safe and Orderly Processes (Jan.5, 2023).

[2] See these posts to dwkcommentaries.com: Need To Prod Congress To Enact the Afghan Adjustment Act (Dec. 17, 2022); Apparent Failure To Enact Bipartisan Immigration Bills (Dec. 18, 2022); Comment: Retired U.S. Military Leaders Support Afghan Adjustment Act (Dec. 19, 2022); Congress Fails To Adopt Important Immigration Legislation (Dec. 28, 2022); Comment: Omnibus Act Creates 4,000 New Special Visas for Afghans (Dec. 29, 2022); Comment: Speculative Interpretation of Supreme Court Decision of Title 42 Case (Dec. 29, 2022); Comment: Other Reactions to Failure To Adopt Immigration Reform (Dec. 31, 2022); U.S. Procedures for Resettlement of Ukrainians (Jan.3, 2023).