Everyone loses in Biden’s border war Mixed messaging is sowing chaos in El Paso

Perhaps more than any other, the border problem is the most divisive issue in the United States. And of all the concerns surrounding it, the contested status of asylum provokes some of the most emotive responses. But amid all the bipartisan furore lies a simple truth: the effective collapse of the asylum system can be blamed on both Republicans and Democrats.

There are now almost 1.6 million asylum seekers in the US awaiting hearings, with an average wait of over four years. The number has increased seven-fold since 2014, rising steadily under Obama, Trump, and now Biden. A decade of internecine political battles has bent the asylum system out of shape, with measures being constantly introduced, rescinded, and challenged, in a splattering of judicial cases that reach all the way up to the Supreme Court.

Most recently, both Trump and Biden have failed to get a legal handle on the situation. A pandemic measure to expel people who have been in a foreign country with a communicable disease, known as Title 42, was first used under Trump in 2020, repurposing a clause from a 1944 health law. Despite Biden promising to throw it out, Title 42 is still used, and is applied arbitrarily in different areas on different days to different nationalities. Last summer, meanwhile, Biden revoked a previous agreement made by Trump in 2019, which stipulated that applicants wait in Mexico for processing, encouraging refugee camps to spring up in cartel-controlled cities. Since then, thousands of migrants have been stuck in Mexico, while the camps simply re-emerged over time. Migrants who do make it over can be flown or bused thousands of miles, only to be expelled over a different section of the border.

Those who manage to stay in the US face a different form of bureaucratic chaos. A private contractor was paid to put ankle monitors on some of those released, but was recently found to be misreporting its numbers. Elsewhere, asylum seekers are being released from detention centres without the documents they need to appear in court. “It’s in really terrible shape,” says immigration lawyer Vinesh Patel, who says it could mean the numbers of asylum seekers are even higher than the records show.

On the ground, hopefuls trying to cross are confronted by mixed messages and haphazard rulings. Outside a shelter in El Paso, I meet Anthony Zamora, a 33-year-old barber from Venezuela. In November, Zamora fled his home in Caracas after a government-backed militia threatened him for not paying extortion. “They are extremists,” he says. “They would kill me.”

Zamora travelled over land through Colombia, Central America, and Mexico, where he arrived in Juárez and tried to use a US government app to apply for asylum. After weeks of it not working, he crossed the river and handed himself to border patrol agents to make his case. From there, he was flown 700 miles to San Diego, where he was ejected back into Mexico under Title 42. On the Mexican side, Zamora caught a bus back to Juárez and crossed again into El Paso. This time, he has successfully begun an asylum application. “Thanks to God, I have started the process,” he says. “I am waiting for my audience. I want to explain why I fled.”

This crisis has its root in the dramatic rise in those arriving at the border to claim asylum. During the Nineties and 2000s, the majority of those crossing the border without papers were Mexicans looking for work. The busiest corridor was the Sonora Desert, where the Border Patrol made the largest number of arrests, usually returning people to their homeland. Since 2014, however, the majority arriving are from across Latin America. Rather than trekking over the desert, they head to the Rio Grande, which is closer when you traverse Mexico from Guatemala. And an increasing number apply for asylum.

Dating from 1951, US asylum law states that “any alien who is physically present in the United States or who arrives in the United States… irrespective of such alien’s status, may apply for asylum”. This can be lost in some news coverage of the border, which frequently discards the nuance between economic migrants and asylum seekers, the latter of whom are purportedly fleeing for their lives and freedom. This line can already be blurred in the first place when people are running from both bullets and hunger.

Today, the influx of asylum seekers from Latin America is partly a consequence of a swing back to authoritarian governments in the region over the last decade. The most severe case is Venezuela, where Nicolás Maduro’s regime has jailed hundreds of political prisoners and where GDP plummeted by roughly three-quarters between 2014 and 2021, leaving millions malnourished. Since 2015, more than seven million people have fled the country, an exodus even greater than that from Syria. Cuba and Nicaragua also have authoritarian governments and correspondingly high numbers of asylum seekers.

The past decade has also seen a significant uptick in gang and cartel violence. These groups, from Mexico to Venezuela, don’t only traffic drugs but work hand-in-glove with national police to rig votes, steal oil, and help smuggle people across the border — including those running from the gangs themselves. Known as coyotes or polleros (chicken herders), people smugglers have networks that reach across the US and throughout Latin America. They move people over deserts, across rivers, around the border in boats, and under it through tunnels.

In the last decade, those heading north have also gradually become more aware of their right to claim asylum. The UN Refugee Agency has campaigned widely, handing out pamphlets on the road. Activist groups have also grown and helped organise migrant caravans of people marching northward. Smugglers themselves will also promote the fact that people can claim asylum, offering to take migrants over the border where they can hand themselves into Border Patrol. Overall, migrant smuggling in Mexico is now a huge business, making an estimated $14 billion a year.

Back in the US, when the asylum seekers finally get a day in court, most are turned away. This is because asylum laws favour those who are persecuted for being a religious or ethnic minority or for their political views, rather than those fleeing gangsters. According to one recent analysis, the rejection rate was 87% for Hondurans, 86% for Guatemalans, and 85% for Mexicans, while Venezuelans had a much higher success rate of 55%. “Venezuela and Nicaragua present more clear-cut cases of political persecution,” says Patel. But the rejections do not dissuade people from applying, especially when they can wait four years inside the United States for their hearing. Quite the opposite: this delay only encourages more people to come.

Meanwhile, despite Republican perceptions, the Biden administration is currently trying to make it more difficult for asylum seekers. It has, for instance, continued to liberally apply Title 42, with between 60,000 and 100,000 expelled under it every month in 2021 and 2022. And last month, the Department of Homeland Security proposed a new rule that would make “certain noncitizens” ineligible for asylum if they transited third countries before reaching the United States. This could be a game-changer, effectively stopping anyone except neighbouring Mexicans or Canadians from asking for asylum. But it could also get thrown out in court, with advocacy groups arguing it directly contravenes the 1951 law. The Trump administration attempted a similar measure in 2019 and a judge struck it down. “Biden is becoming Expeller-in-Chief,” says Rubén García, who manages a migrant hostel in El Paso.”He is out Trumping Trump.”

Perhaps the only way to fix this intractable crisis would be for politicians to have an honest debate. Do Americans want to honour the spirit of the Refugee Convention they approved in 1951 and make it function properly? Or do they want to change the law itself ? A choice needs to be made. The alternative — squeezing an already broken system — clearly isn’t working.

It is hard to make sense of such debates on the ground, though, far removed from the corridors of power. Outside a migrant hostel in the city of Tijuana, I meet Jose Luis Aguilar, a 27-year-old from El Salvador who fled his home with his wife and two children after he was shot by gang members. He was unsure how to apply for asylum and the hostel managers had stopped giving out information. “I am just trying to get by day by day,” he told me. “I thank God I survived and I pray we will find a way.”

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Ioan Grillo is a journalist based in Mexico and the author, most recently, of Blood Gun Money.

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