Recent polls indicate that immigration is a major concern for American voters in the upcoming presidential election. Many voters, however, are unclear about the division of responsibilities regarding immigration and naturalization, which primarily lies with Congress under the Constitution.
The president’s role is to enforce laws and safeguard borders, using the tools provided by Congress. Therefore, it is crucial for these tools to address several key issues: border security, misuse of asylum laws, identification and removal of criminal aliens, backlogged immigration courts, and the large unauthorized population in the country. Many of these individuals are law-abiding but lack available immigration relief.
The Importance of Immigration
At its core, immigration is a positive force. It fosters family unity, drives economic growth, promotes diversity, and provides humanitarian assistance. The U.S. has a rich history as a nation of immigrants.
Despite its benefits, the immigration system has become overly complicated and dysfunctional. As we await congressional action, we should focus on practical steps that an incoming administration can take.
Current Administration’s Use of Technology
The Biden-Harris administration has introduced CBP One, a U.S. Customs and Border Protection (CBP) smartphone app that allows individuals to request asylum at designated ports of entry. While this app aims to streamline the asylum application process at the southern border, it has faced criticism for being challenging to use. Concerns include the availability of appointment slots, occasional technical failures, and limited access for users without smartphones.
Some argue that the app effectively denies the right to seek asylum in the U.S., making its use potentially unlawful. However, the Immigration and Naturalization Act gives the attorney general the authority to set conditions for the asylum process, which does not conflict with the right to seek asylum. This law likely allows individuals who do not arrive at a designated entry point to be redirected to one for their asylum applications.
The Asylum Ban and Safe Third-Country Agreements
The current administration’s “asylum ban” presents challenges but could still function effectively alongside safe third-country agreements. These agreements help manage the flow of refugee claimants at shared borders. Generally, the ban restricts asylum seekers who have not applied for asylum while traveling through a third country or who did not secure an appointment to seek asylum at a southern border port of entry.
Without a safe third-country agreement, the first aspect of this ban may struggle to survive judicial review. However, the requirement for an appointment is likely to hold up in court.
In June, the Biden-Harris administration began enforcing the Immigration and Naturalization Act to suspend the entry of noncitizens who cross the southern border unlawfully. Critics claim this violates the right to seek asylum as outlined in both domestic and international law. However, unlawful entrants can—and should—be returned to seek asylum through CBP One.
Parameters of Asylum Law
U.S. and international laws permit establishing parameters around the right to seek asylum. An organized asylum process does not diminish this right.
While CBP One, the asylum ban, and the suspension of unlawful entrants have contributed to reducing unauthorized crossings, these measures should remain as executive tools to combat illegal migration, along with increased border agent presence and advanced technology.
Although CBP One has faced technical issues, the use of technology should not be abandoned. Just as there is a right to seek asylum, there is also a sovereign right to maintain an orderly and manageable process.
Strengthening Asylum Measures
To enhance the asylum ban, the U.S. should seek safe third-country agreements with southern neighbors. Current asylum law allows applicants to be sent to safe third countries, where they can seek protection.
It is essential to clarify what asylum protections entail. Asylum laws derive from the principle of non-refoulement, which prevents returning individuals to places where they may face persecution based on race, religion, nationality, political opinion, or membership in a specific social group.
For example, a threat based on race qualifies as a legitimate claim for asylum, while a threat over a debt does not meet the criteria for asylum protection.
Establishing Asylum Offices
Given that many border crossers are seeking asylum, setting up asylum offices at the border could alleviate pressure on immigration courts. Trained asylum officers could evaluate legitimate claims at designated entry points instead of sending them to court.
Additionally, establishing U.S. asylum offices in Mexico and Central America could enable applicants to present their claims closer to home. Those with valid claims could receive provisional approval, while those denied could decide whether to pursue their case at a U.S. port of entry.
This approach would help manage the influx at the southern border, reduce the backlog in immigration courts, and emphasize that seeking asylum is not a straightforward path to enter the U.S.
Collaboration with Congress
An incoming administration should collaborate with Congress to allocate resources for more border agents, improve technology for detecting unlawful crossings, enhance border fencing where possible, and secure cooperative agreements with neighboring countries to reduce illegal migration.
The immigration courts, overseen by the attorney general, may require restructuring. For instance, the attorney general could establish specialized dockets for asylum, criminal aliens, and cancellation of removal cases. Streamlining cases could improve efficiency and expedite the processing of criminal cases.
In conjunction with asylum offices, a dedicated asylum docket would fast-track claims and help alleviate the backlog in immigration courts.
Addressing Unauthorized Immigration
Addressing the large unauthorized population in the U.S. presents significant challenges. However, many agree that action must begin. A new administration might consider using prosecutorial discretion in initiating and terminating removal cases. Resources in Immigration and Customs Enforcement could be better focused on criminal aliens rather than worksite enforcement, prioritizing cases involving criminal activities.
The new leadership could also utilize a tool called a stay of removal for low-priority cases. Individuals ordered to be removed could be granted a stay, allowing them to apply for work authorization. By encouraging individuals unlawfully present to come forward, this could create pressure on Congress to pass immigration reform.
A Call for Congressional Action
Lastly, the next administration must understand the necessity of working with Congress. In their 2014 book, “A Conservative and Compassionate Approach to Immigration Reform,” authors David Strange and Alberto R. Gonzales suggest simple changes to the Immigration and Naturalization Act to address the millions unlawfully present while preparing for future pressures on the immigration system.
Many Americans have consistently ranked immigration reform as a top priority. However, neither presidential candidate has proposed a comprehensive policy for Congress to act upon.
While the challenges ahead are substantial and complex, these straightforward steps from the executive branch may serve as a practical approach until voters demand that Congress fulfill its responsibilities.
It is insufficient for members of Congress to shift blame or exploit this issue for political advantage. Ultimately, responsibility lies with Congress to address these immigration concerns.
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