tl;dr: This piece doesn’t make a human rights argument about asylum access, though it does acknowledge cruelty and human cost. Instead, the argument here is cold, analytical, and practical: the past 10 years’ numbers and experience show that trying to deter protection-seeking migrants just doesn’t work. All it does is push their numbers down temporarily.

---

As President Biden and candidate Trump head to the Texas-Mexico border, immigration opponents are blaming the President’s border policies for the horrific, tragic February 22 murder of a nursing student in Georgia. But the case of the alleged killer, a 26-year-old Venezuelan man named José Ibarra, shows the futility of trying to put asylum out of reach at the U.S.-Mexico border.

Title 42 was a “nuclear option” for denying asylum—yet it didn’t deter people from coming

Since 1980, U.S. law has clearly stated that any non-citizens on U.S. soil have the right to apply for asylum, regardless of how they arrived, if they fear for their lives or freedom upon return to their country for reasons of race, religion, nationality, membership in a particular social group, or political opinion.

Once here, they are entitled to due process, and even Donald Trump’s administration had to honor that, hundreds of thousands of times (though they constantly sought to cut corners).

That is presumably what José Ibarra sought to do when he arrived at the U.S.-Mexico border in El Paso in September 2022. But in fact, Ibarra came to the U.S.-Mexico border at a time when the U.S. government was going to extreme lengths to make asylum unavailable.

Between March 2020 and May 2023, the “Title 42” pandemic policy—begun by Donald Trump and continued by Joe Biden—used public health as a pretext for carrying out the toughest restriction on asylum seekers since 1980. Title 42 empowered U.S. border officials to expel—not even to properly process—all undocumented migrants they encountered.

If they said “I fear for my life if you expel me,” in most cases migrants still didn’t get hearings: they were expelled from the United States as quickly as possible. If they were Salvadoran, Guatemalan, or Honduran—and later Cuban, Haitian, Nicaraguan, or Venezuelan—Mexico agreed to take many of them back across the land border.

In September 2022, when Ibarra turned himself in to Border Patrol, Title 42 was in full effect. But “expelled as quickly as possible” was often complicated.

In September 2022 alone, 33,804 Venezuelans—fleeing authoritarianism, corrupt misrule, violence, social collapse, and cratering living standards—arrived at the border.

Data table

That month was an especially busy time for Border Patrol’s El Paso Sector (one of the agency’s nine U.S.-Mexico border sectors, comprised of far west Texas and New Mexico). Agents there encountered 49,030 migrants over those 30 days, 20,169 of them from Venezuela, including José Ibarra.

(Let’s recall, too, that the vast majority of those people were seeking to step on U.S. soil and turn themselves in to Border Patrol. They weren’t trying to get away. The presence of a border wall near the riverbank is irrelevant: they just want to set foot on the riverbank.)

Of those 20,169 Venezuelan migrants in El Paso that month, the Department of Homeland Security (DHS) used Title 42 to expel… 2.

Why so few? Because U.S. authorities had nowhere to “put” expelled citizens of Venezuela and many other countries. At the time, Mexico was accepting Title 42 expulsions of three non-Mexican nationalities, but not Venezuelans. (That came later, in October 2023, bringing a temporary drop in Venezuelan migration. But despite the threat of expulsion, by the last full month of Title 42—April 2023—the number of Venezuelan migrants had recovered to 34,633, at the time a record.)

In 2022—and again, now—Venezuela’s government, which has no diplomatic relations with the United States, was refusing deportations or expulsions by air. Those flights are very expensive anyway for a country thousands of miles away.

At that pandemic moment, but still today, the sheer number of arrivals at the border—often more than 200,000 per month, at a moment of more worldwide migration than at any time since World War II—often makes detaining asylum seekers impossible, for lack of space and budget. So then, and still now, U.S. authorities release many into the U.S. interior with a date to appear before ICE or immigration courts in their destination cities. (The vast majority show up for those appointments.)

This was the reality even during the draconian Title 42 period, when U.S. authorities did expel people—many of them asylum seekers—2,912,294 times. But even as Mexico took back land-border expulsions of many Mexican and Central American people with urgent protection needs, U.S. officials, unable to expel, released José Ibarra and many others into the United States.

Why cracking down on asylum doesn’t work

Let’s repeat: this is what was happening when it was U.S. government policy to expel as many asylum seekers as it could, as quickly as it could. Washington tried a massive crackdown on asylum, and it failed to deter people. This is what happened to Border Patrol’s migrant encounters during the Title 42 period:

Data table

Right now, though, curbing the ability to ask for asylum at the border is in vogue again. Language in a “border deal” negotiated by Senate Republicans and Democrats—defeated in early February because Republicans didn’t think it went far enough—would have switched on a Title 42-like expulsion authority whenever daily migrant encounters averaged more than 4,000 or 5,000 per day.

Late-February media reports indicate that, with legislation paralyzed, the Biden White House is considering taking an executive action that would put in place similar expulsion triggers.

It is unclear, though, how that could ever be legal. “We’re really busy right now” is not one of the exceptions to the right to seek asylum in U.S. law.

These attempts to “deter” asylum seekers by thwarting access to the U.S. asylum system are a dead end. It is a mistake to pursue them.

It’s a moral travesty

First, because they’re likely to kill innocent people. Consider these numbers:

In December 2023, CBP and Border Patrol issued “notices to appear” to 237,896 people. This doesn’t correspond to “asylum applicants,” but it’s somewhere in the ballpark.

TRAC Immigration data show that of asylum cases that reached a verdict in U.S. immigration court last year, 50 percent ended up with grants of asylum or some other form of protection in the United States. That’s 35,570 people who, according to our rigorous and adversarial immigration court system, would have faced a real risk of being killed, injured, tortured, or imprisoned if the U.S. government had sent them home.

Many other asylum cases don’t make it to a verdict. Cases get closed, people withdraw their applications or don’t show up, or they’re granted other forms of protection, among other outcomes. It’s messy.

In a November 2023 Appropriations Committee hearing, Sen. Lindsey Graham (R-South Carolina) asked DHS Secretary Alejandro Mayorkas point-blank: taken together, how many asylum cases get rejected or tossed out?

Graham: What’s the denial rate of asylum claims?

Mayorkas: Well, Senator, we’d have to break it down. The asylum system has an initial screening rate. As you know, the credible-

Graham: I think the final determination is about 90% of the claims are eventually denied. Am I in the ballpark?

Mayorkas: Senator, I believe that is inaccurate.

Graham: Okay. Well, what percentage of claims are-

Mayorkas: It also depends on the demographics.

Graham: Now, I’m asking you a simple question. You’re the head of DHS and you can’t tell me how many asylum claims are approved versus denied.

Mayorkas: Generally, generally speaking across the board on a macro basis, it’s approximately 75 percent.

A 75 percent denial rate sounds high. But let’s recall that December 2023 number above. At that rate, of the 237,896 people given “Notices to Appear” that month, there would be (237,896 people x 25% =) about 59,474 people, in one month alone, who would likely be in very grave danger if the U.S. government were just to send them back without a hearing.

And tens of thousands more might face other dangers, like organized crime threats, even though an immigration judge might decide that those threats don’t meet the strict, 20th-century requirements for asylum.

That’s a lot of people needing protection. Identifying them is a lot more robust than a search for a few needles in a haystack.

It’s a geographic impossibility

That’s 60,000 reasons, in a single month, not to block access to asylum. But second, more reasons become apparent when one considers where today’s migrants are coming from.

The Darién Gap, Nicaragua, and perhaps other future routes have made the U.S.-Mexico border much more accessible to people coming from very far away.

• In fiscal year 2009, 92 percent of all migrants apprehended at the U.S.-Mexico border were citizens of Mexico. 99 percent were citizens of Mexico, El Salvador, Guatemala, or Honduras. 1 percent came from elsewhere.
• By fiscal year 2019, just 20 percent of all migrants apprehended at the U.S.-Mexico border were citizens of Mexico. But 91 percent were still citizens of Mexico, El Salvador, Guatemala, or Honduras. 9 percent came from elsewhere.
• By fiscal year 2023, 28 percent of all migrants apprehended at the U.S.-Mexico border were citizens of Mexico. Only 50 percent were citizens of Mexico, El Salvador, Guatemala, or Honduras. 50 percent came from elsewhere. (2024 so far is almost exactly the same: 27 percent, 51 percent, and 49 percent from elsewhere.)

Look at the ever-shrinking share of blue (Mexico), green (Guatemala), brown (Honduras), and yellow (El Salvador) in this chart:

Data table

All other non-Caribbean deportation destinations are more than 1,000 miles away from the United States. Increasingly, they’re destinations on the other side of the world. Those are some long flights.

Worldwide, Immigration and Customs Enforcement’s (ICE) removal flights over the past year averaged 127 per month, about 41 of them to countries other than El Salvador, Guatemala, or Honduras.

With about 150 passengers per flight (it’s probably fewer), that would be 19,050 people removed by air each month over the past 12 months, a bit more than 6,000 of them to countries beyond northern Central America.

Over this period, Border Patrol has apprehended an average of 120,733 non-Mexican migrants per month. A lot more than 19,050.

Even if one can dismiss the cruelty of expelling someone who came here asking for protection, the fact is that aerial removals are too expensive to carry out massively. And the air industry is facing shortages of planes and pilots anyway.

Even if ICE somehow managed to double the frequency of its removal flights—a prohibitive cost—the U.S. capacity to deport people would perhaps rise to the 40,000s. With monthly migrant encounters remaining a multiple of that, most asylum seekers’ chances of quick expulsion or deportation would still remain small, especially if their overall numbers grow further.

Flying people costs a lot of money: picture regular airline airfare, plus charter flight contractors’ profits, plus the cost of guards and other security measures for passengers who often travel shackled. A flight to South America costs far more than $1,000 per passenger.

And this is only when the recipient government allows flights. Venezuela just shut down an aerial repatriation program after 15 flights between October and January, during which Caracas authorities detained some passengers after their arrival. China does not allow flights. One plane per month goes to Cuba, an average of two per month to Nicaragua. Flights to Russia are unthinkable.

Holding people in prolonged detention, too, costs a lot of money. ICE’s 2024 budget request reported a per-night cost of $162.50 for each adult detention bed in 2022.

“We should just send them back across the land border into Mexico,” some argue. But Mexico, a sovereign country with serious economic, governance, and security challenges, has to agree to that.

Mexico did take back millions of expulsions during the pandemic, though there was no official process to receive them at the border, and a likely majority turned around and sought to cross back into the United States shortly afterward. (Very, very few Venezuelans, for instance, gave up and went back to Caracas following expulsion into Mexico.)

Currently, Mexico accepts processed deportations–not expulsions—of a few thousand migrants each month from Cuba, Haiti, Nicaragua, and Venezuela under the Biden administration’s post-Title 42 “asylum transit ban” rule. Neither government shares data about these deportations very often, but a DHS official said that the Department deported 17,000 of those countries’ citizens to Mexico between mid-May and early October 2023.

Even if Mexico’s government were to agree to take a multiple of that—something that it refuses to do if the initiative resembles the Trump-era “Remain in Mexico” program for asylum seekers—the net effect on migration would be small.

During the Trump administration, starting in early 2019, the entire Remain in Mexico program sent 71,061 asylum seekers back to await court dates in Mexico. That is about two or three weeks’ worth of non-Mexican migration today.

The original “Remain in Mexico” program itself was losing its deterrent effect in early 2020, six or seven months after the Trump administration ramped it up: monthly migrant apprehensions had stopped decreasing, and were slowly rising, just before the pandemic hit.

What to do instead

Human rights arguments aside—and they often are put aside in these debates—trying to deter migrants by blocking asylum is futile, as it completely misunderstands the reasons why people are so desperate to come here.

At most, it can bring a short-term drop in migration, which quickly recovers.

What would a more effective response be, then, to manage the border and migration more effectively? The best response is to change lots of outdated laws, starting with residency requirements, temporary work permits, and access to a much larger refugee resettlement program.

People can apply for all of those from abroad, but they’re out of reach because of legal limits. It’s frankly unhinged to make people travel thousands of dangerous miles to set foot on U.S. soil because asylum is their only option—whether to stay alive, or whether to live in a place where hope exists. But that’s the option that U.S. law makes available.

Changing laws would be ideal, but it hasn’t meaningfully happened since the 1990s and it’s not going to happen in this election year. We’re stuck with the laws we have.

What, then, can the U.S. government do within today’s framework?

First, it can increase adjudication. A system with only 734 judges and 760 asylum officers (as of September 2023) is pathetically small, and the result is multiple years-long waits for asylum applicants to have their cases decided. During those years, they live and work in the United States, and start precarious new lives here, while the overall backlog grows.

Data table

The adjudication process should take as long as due process requires, which is rarely “years.” But making people wait until 2026 or later just for their initial hearings means making them live in constant uncertainty.

For some, though, the mere prospect of years here with a legal status and work permit may be attractive on its own, regardless of their cases’ outcomes. For those people, reducing that wait might reduce the incentive to make the journey in the first place.

Making the process faster doesn’t mean cutting corners on meaningful due process, which would violate U.S. law. It means moving much faster to build up a modern asylum system adequate for a world in which more than 1 of every 74 people worldwide—22 million in the Americas, only a fraction coming to the United States—is now on the move. That is the reality to which we need to adjust.

The wait for a decision should be faster, but it need not happen in expensive, often cruel detention conditions. Case management programs, a second big area needing investment, are much cheaper and link people to opportunities in the United States while they are living in U.S. communities. Grants to U.S. cities to help integrate people into local economies are also cheaper than detention.

If the asylum system can hand down fair decisions in, say, less than a year, some migrants may be less willing to turn themselves in at the border. But for the many in grave danger who will still need to access this speedier asylum system, DHS needs to invest far more in a third element, processing.

People who come to the border seeking protection shouldn’t ever feel compelled to seek a gap in the fence or ford the Rio Grande. They should be able to come to a land-border port of entry, be screened, and begin their asylum paperwork. And the wait to access a port of entry should not be many months, as it often is right now for people in northern Mexico using the “CBP One” app.

Ports of entry, usually with off-site processing facilities, need to take far more appointments than they are taking right now, to draw asylum seekers away from the dangerous places in between the ports where Border Patrol operates. That would free up agents, too, for traditional security duties.

Without changing the law, the Biden administration can also keep expanding alternative pathways that aren’t asylum. The existing choices aren’t ideal—they are nearly all temporary statuses—but humanitarian parole (if it survives court challenges), Temporary Protected Status, and those temporary work permits that don’t require changes in law, have room to expand, along with a few other small programs.

While adjudication, case management, processing, and other pathways don’t require new laws, they do need a budget. They require appropriations. Right now, though, DHS is still operating at funding levels that responded to the budget request that the Biden administration sent to Congress in the spring of 2022 (which Congress approved in December of that year). DHS continues to operate, zombie-like, at levels set in the 2023 appropriations law, though fiscal 2023 ended in September.

Some of these processing, adjudication, and other needs appeared in the supplemental budget request that the Biden administration sent to Congress in October 2023, but that has gone nowhere amid legislative gridlock.

The “border deal” or executive action limiting asylum fixes nothing—it can merely push numbers down for a few months

If the money is not coming, then more people will be let in to the United States and added to an already unsustainable asylum backlog, while U.S. communities get few new resources to integrate them.

As polls show the border and immigration to be respondents’ top current concern, White House operatives and centrist Democratic senators are not disguising their alarm about the kind of voter-triggering disorder that keeping the status quo, with no new budget, may bring. They are doubtlessly tempted to do anything in the short term that can at least push the numbers down for a few months.

That’s why they’re now flirting with normalizing the dangerous idea of expelling asylum seekers on “busy days.”

They know that, as happened with José Ibarra during TItle 42, even with some new authority it will be impossible for them to expel massive amounts of people. They can only hope that word of a “tough new policy” might reverberate through migrants’ and smugglers’ word-of-mouth networks, bringing a momentary drop in new arrivals at the border while all go into “wait and see” mode.

This has happened several times over the last 10 years—since a 2014 wave of children and families from Central America caught the Obama administration off guard—when the U.S. or Mexican governments announced tough new measures to deter migrants and asylum seekers. (For example: Mexico’s “Southern Border Plan,” Trump’s first executive orders, family separation, Remain in Mexico, Title 42 and its expansions, the Biden asylum rule, and others all brought short-lived reductions.)

Data table

Each time, after a few months, the number of migrants fell, then recovered and even increased. Each time, the new policy’s deterrent effect on protection-seeking migrants proved to be less severe than the threats and misery they were fleeing. (Thank goodness: no U.S. government policy should attempt to emulate that severity.)

The Senate “border deal,” or an executive action that echoes it, would be no different.

Out of political desperation or cynical calculation, administration political operatives may be content to push the border numbers down for a few months, using legally dubious measures, in the middle of a heated campaign. But they should not fool themselves, or the public, into believing that they’ve found a long-term solution by limiting asylum access. It will cause real human suffering, and then the numbers will bounce right back.