President Trump has declared a crisis at the border, saying that the country is “filled” and unable to process and absorb new immigrants and asylum seekers, while the Attorney General imposes new rules compelling detention of refugees. Here, Professor Lucas Guttentag, an immigration law expert, founder and former national director of the American Civil Liberties Union Immigrants’ Rights Project who served as a senior immigration advisor at the Department of Homeland Security from 2014-16 during the Obama administration, discusses the current administration’s policies and proposals.

Not long ago it was reported that illegal immigration to the U.S. was at an all-time low. That situation seems to have changed significantly in the last few months if media reports are correct. Has there been an increase in the number of immigrants and asylum seekers reaching the U.S.-Mexico border?

The overall number of migrants crossing the southern border without authorization remains dramatically lower than it was in the past, but there has been an increase recently from that historic low. In the early 2000s, the number peaked at about 1.6 million apprehensions (i.e., individuals stopped for unauthorized entry by DHS) per year. In comparison, last year the number was down by 75 percent—to fewer than 400,000. The reduction is the result of many factors—most importantly those in Mexico. The Mexican economy has grown, its birth rate is down, employment prospects are much improved, and education levels are higher. That leads to reduced migration pressures. In addition, there has been a massive buildup in border enforcement since 9/11. While experts have long found that increased enforcement does little to reduce migrant flows and, in fact, often has the perverse effect of causing migrants who previously engaged in “circular” migration (i.e., coming and going) to remain in the United States permanently—the vast increase in U.S. Border Patrol agents and technology make the likelihood of apprehension much higher. So the major decline in apprehension numbers is all the more telling.

What has changed at the southern border recently? Are the immigrants themselves different?

What has changed significantly in recent years is the composition of the migrants coming to the southern border. Today, more than 50 percent are from the Northern Triangle countries of El Salvador, Guatemala, and Honduras. These migrants are fleeing almost unprecedented levels of violence and danger from countries that have some of the highest gang violence and murder rates in the world. By comparison, in the past, most migrants apprehended at the border were young Mexican men seeking opportunity and employment in the U.S. Of the 1.6 million apprehended in 2000, 98 percent were Mexican nationals. Today, that is dramatically different. Beginning in 2012, unaccompanied minors and families from Central America began to arrive in greater numbers. In recent months, the percentage of families and unaccompanied children is 60 percent of the total, as opposed to 10 percent in 2012. So, the critical question is not the total number, but who is coming and why.

Our current border enforcement regime is failing to address this new reality. The system is mired in the past and treats migrants as threats who should be jailed and deterred rather than as refugees seeking protection whose claims must be heard and fairly adjudicated. Responding to the current situation with inhumane measures that violate our legal obligations is a moral and management failure.

What are the rights of asylum-seekers? 

Persons fleeing persecution are entitled to legal protection under U.S. immigration law and international human rights treaties. These legal protections are embodied in the 1951 Convention Relating to the Status of Refugees that the United States championed after World War II. In 1980, Congress passed the Refugee Act to bring the U.S. into compliance with those international obligations. Among the key safeguards are that any non-citizen, “regardless of status” or how they arrived, is legally protected against return to a place where they have a “well-founded fear” of persecution on account of race, religion, nationality, political opinion, or membership in a particular social group.

How are the immigration and asylum laws enforced at the border, and what is the “credible fear” process?   Should that process be made stricter, as some in the administration have claimed? 

Generally, migrants arriving at the southern border who lack valid entry documents are subject to summary expulsion (or “expedited removal”) without any hearing.  But if a person expresses a fear of return, they must be interviewed by DHS asylum experts to determine if they have a “credible fear” of persecution.   The credible fear standard is defined in the asylum statute as meaning that the individual has a “significant possibility” of being eligible for asylum. If the DHS officer finds a credible fear, the applicant must receive a full hearing before an immigration judge on their asylum claim. The credible fear process is a critical safeguard intended to ensure that the normal summary expulsion process will not result in returning refugees to persecution. Currently, more than 75 percent of Northern Triangle migrants demonstrate a fear of return that satisfies the credible fear standard.

If the credible fear standard is made more difficult, bona fide refugees will be returned to persecution without any reasonable chance to make their case. The asylum standards and protections were adopted by the international community after the Holocaust because of the failure of the West—including the United States—to accept and protect Jews and others fleeing Nazi Germany.  Those who today suggest that the credible fear standard should be raised ignore that past and would repeat it.

What does the law say about children, especially those who arrive without a parent or guardian? 

Unaccompanied children are subject to special laws and safeguards under the Trafficking Victims Protection Act and a court-ordered agreement known as the Flores settlement.  These provide for special processing of unaccompanied children, require the involvement of the Department of Health and Human Services, strictly regulate the periods and conditions of any detention, and provide for release to responsible guardians.

What do you think is driving the increase in people coming from Central America?

The increases are driven overwhelmingly by the conditions in Central America. People are fleeing dangerous and horrific circumstances. Young males and their families are targeted by criminal gangs for recruitment and retaliation. Women suffer high levels of domestic violence that the legal system does not adequately address. Civil strife leads to instability and lack of opportunity. The homicide rates in El Salvador, Guatemala, and Honduras are among the highest in the world. The United Nations High Commissioner for Refugees (UNHCR) studies show that conditions in the region fuel migration and warrant international protection for those fleeing. In addition, global climate change and severe drought conditions are now affecting agriculture and traditional means of support, further destabilizing the economies and generating migration.

Before 2017, there were programs in place or planned that allowed some Central American children and refugees to apply for admission to the U.S. from their home countries. These were ended by the Trump administration—though a recent court ruling held that children who had already been processed and approved for admission to the U.S. must be allowed to come.

The Trump administration also recently announced an end to the foreign aid for the Northern Triangle countries.  This is astoundingly short-sighted and counterproductive.  It will lead to even worse conditions, further diminish hope for improvement, and aggravate migration pressures. The Trump administration is abandoning responsible, long-term efforts that are essential for regional stability and are responsive to human suffering. Some see this as a tactic to inflame rather than diminish the problem

So is there a crisis at the border?

The “crisis” at the border is not the numbers who are arriving but the system’s failure to respond in a humane, efficient, and orderly way in light of the government’s legal obligations and the number of migrants who are seeking protection.  While the numbers of families and refugees has increased some recently (though again, not nearly to the level of earlier periods), the refugees arriving in the U.S. are small by global standards and in relation to the size, wealth, and diversity of the United States. We are far more capable of processing and accepting refugees arriving in the U.S. than are most other countries in the world confronting major migration flows across their borders—especially in the global south where the greatest numbers occur. Globally, the UNHCR reports a total of 68.5 million forcibly displaced people, 25.4 million refugees, and 3.1 million asylum-seekers.  Notably, 85% of displaced people are hosted in developing countries, and the top refugee hosting countries are Turkey, Uganda, Pakistan, Lebanon, and Iran.

It’s instructive to recall the 1980’s when conditions of civil war, persecution, and genocide in Central America caused a similar refugee flow to the United States and a reaction not unlike today’s.  An estimated total of 1 million Central Americans came during that period. Like today, they braved traveling—often literally walking—thousands of miles through an entire country to seek safety in America. That alone is a remarkable testament to their courage, initiative, and fear.  A generation later, those earlier refugees are settled, working, and contributing to our communities—and some their children have been students in my classes.

The administration had been forcing people to stay in Mexico until their cases were ready to be heard. Can you talk about the latest ruling on that—and what might happen next?

The district court in San Francisco issued a preliminary injunction enjoining the “return to Mexico” policy issued by President Trump. The court held that the plaintiffs were likely to succeed on their claim that returning them violated the Immigration and Nationality Act and the notice and comment requirements of the Administrative Procedure Act.  The court also found that the procedures were inadequate to protect Central Americans against danger and persecution in Mexico if forced to return there to await their immigration hearing. The Ninth Circuit has temporarily suspended the injunction pending further argument on whether the injunction should go into effect while the government’s appeal proceeds. The next hearing is on April 24.

How are the immigration courts handling the pressure? Is there a plan to increase capacity for both judges to hear cases and lawyers to represent asylum seekers? Doris Meissner, the immigration commissioner in the Clinton administration said that the backlog “has been allowed to build to the point of a crisis.”

The immigration courts as well as the U.S. Citizenship and Immigration Services (USCIS) asylum system are completely under-resourced and confronting an unmanageable caseload. This situation has grown over the years as Congress devotes ever greater resources to enforcement while starving the adjudication system. The asylum office is part of USCIS, whose budget comes almost entirely from the fees it can charge for immigration services and benefits. The asylum system receives no congressional funding.  As a result, there are far too few asylum officers and staff to process claims, leading to massive backlogs.  As a practical matter, the asylum system is overwhelmed and cannot do its job. Similarly, the immigration courts now have nearly 800,000 pending cases. This means that most cases don’t get scheduled for years, people move, cases get stale, and individuals develop deep roots and ties while they are waiting for their day in court. I agree that the entire system has reached a crisis point.

In addition, there is no right to appointed counsel in immigration proceedings. A high percentage of non-citizens go through the entire process without a lawyer and without a real understanding of their legal rights or obligations. Many miss court dates or fail to pursue claims because of confusion, lack of adequate notice from DHS, misunderstanding, and long unpredictable waits for hearings. A fair and efficient system would provide for appointed counsel, set cases promptly, required reasoned decisions, and ensure adequate judicial review. If the system were working as it should, cases would be adjudicated and those who qualify would get the benefits to which they are entitled. Those who don’t would be removed based on a legitimate adjudication.  Of course, that assumes that the governing legal regime is itself substantively fair and normatively correct. It is neither. Countless legal restrictions and procedural hurdles have been erected that urgently need legislative reform. In 1996, avenues for legal status and for individualized justice that long existed were eliminated. Unnecessary and unfair detention and removal mandates were enacted.  But even setting that aside, the current system cannot fairly adjudicate even those claims that are valid under existing law.

Are families seeking asylum being forcibly separated anymore—or has that policy been stopped?

The formal policy has reportedly stopped but reports continue to show that the policy was much more widespread than originally reported. So, it is difficult to say with confidence that parents and children are no longer being separated. The latest reports indicate that many—perhaps thousands—of children remain separated.

How is the law developing—what’s happening in the courts?

Most of the legal challenges to various Trump administration border policies continue.  Many practices, including altering the credible fear standard and restricting who can apply for asylum, have been enjoined.  We can anticipate continued court challenges, further appeals of pending cases, and an array of new threats or actions by the administration, including efforts to change the governing statute. I expect the statutory framework to remain unchanged and that the Trump administration will try a variety of ways to narrow or abandon rules and practices that have been in place since 1980.

Is there anything else you’d like to add?

Just two points. One is that people migrate for the same reasons they always have: to seek safety and opportunity for themselves and their children. Laws and punishment won’t change that fundamental human imperative. It can be addressed only through changing conditions in countries of origin. Second, immigration is not a threat or a danger to our country or our values. At every point in our history new immigrants have been viewed with suspicion and hostility, and some political leaders have always tried to exploit and inflame those fears. But history also shows that in every case, new immigrants have fueled the American experience, have become part of the American people, have adopted English in every successive generation, and have contributed beyond measure to our intellectual, cultural, economic, and political life and success.