Confusion on refugee resettlement program continues—04-23-21

Immigration news, in context

This is the seventy-sixth edition of BORDER/LINES, a weekly newsletter by Felipe De La Hoz and Gaby Del Valle designed to get you up to speed on the big developments in immigration policy. Reach out with feedback, suggestions, tips, and ideas at BorderLines.News@protonmail.ch.

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This week’s edition:

  • In The Big Picture, we examine the Biden administration’s shifting position on refugee resettlement.

  • In Under the Radar, we look at a report documenting violence against asylum seekers expelled under Title 42.

  • In Next Destination, we scrutinize a border bill introduced by Senators Kyrsten Sinema and John Cornyn.

The Big Picture

The news: Last Friday afternoon, President Biden issued a memorandum maintaining the fiscal year refugee cap at the historically low number of 15,000, calling it “justified by humanitarian concerns” and in the “national interest.” After an immediate, widespread backlash, the White House seemed to walk it back, with White House Press Secretary Jen Psaki claiming that it had always been the intention of the president to revisit that number and issue an increased cap by May 15.

What’s happening?

As we’ve noted before, though the refugee and asylum programs are often conflated and have identical general criteria, they are actually separate programs that operate with their own distinct staffs and government infrastructure. The key distinction is that the refugee program is designed to process people abroad, who are typically designated refugees and referred to the U.S. by the United Nations, and who go through a lengthy application and vetting process before being granted authorization to arrive in the U.S. as already-recognized refugees. Asylum seekers, meanwhile, must begin their claims from inside the country, and (unless they’re granted asylum on an affirmative application filed after entering legally) are put into removal proceedings, in which they must fight for status.

There is no limit on the number of asylees allowed per year, as in theory any noncitizen present on U.S. soil is entitled to apply for it, and a successful claim necessarily permits the applicant to receive asylum status and remain in the U.S. Refugees, on the other hand, have annual caps because they’re resettled already with status, and the cap is unilaterally set by the president (in “consultation” with Congress, though this is just a formality). It’s worth noting that the cap is merely the maximum allowable number, and the government is under no legal obligation to actually hit that cap. 

The lack of public awareness about the distinction is always irksome, but particularly so now, as it appears that concern over the confusion of the programs is partly what’s driven Biden to refuse to raise the cap from its lowest-ever level even as his senior staff urges him to take that step. The New York Times reported this week that in early March, Secretary of State Anthony Blinken practically begged the president to sign a cap increase for the year. This was less than a month after Biden had already signed an executive order that, while having limited immediate impact, pledged to raise the refugee cap for the following fiscal year (presumably to the 125,000 that he had promised on the campaign trail) and build up the government’s capacity to vet and process refugees. He’d also sent a report to Congress setting a goal of 62,500 refugees for the ongoing fiscal year, which ends at the end of September.

Yet, according to the Times report, Biden treated these entreaties with annoyance. It’s no secret at this point that the largely manufactured drumbeat of border crisis is weighing on Biden, who is constantly concerned that public opinion on his handling of immigration will sour (despite the fact that, as we’ve said a thousand times, restrictionists are going to call him an open borders-loving Constitution-trampler no matter what).

As with the refusal to terminate the Title 42 order, the rationale used here is one of logistics and capacity, with Psaki telling the press that the challenge isn’t the cap itself but the ability to process the refugees. This isn’t a throwaway argument; while the programs are separate, resources allocated to the Office of Refugee Resettlement can be utilized for assisting, for example, unaccompanied migrant children arriving at the border, as well as refugee operations. Sometimes, refugee admissions staff can be detailed to asylum officer functions. Beyond the government staff, the refugee program is dependent on nongovernmental entities including nine large nonprofit resettlement agencies collectively known as the Voluntary Agencies, or Volags, and a large assortment of smaller, often local nonprofits that they partner with. These entities have often seen heavy contractions in the last few years as the steep drop in refugee resettlements slashed the available work and caused local offices to shutter.

The problem with this explanation is it’s a bit of a chicken and egg problem. The resettlement infrastructure is decimated because refugee admissions have been slashed so much. Government and nonprofit personnel have been reassigned or laid off because there weren’t refugees to process. Various private partners have already said they stand ready and willing to quickly expand operations to accommodate larger numbers of arrivals as soon as Biden’s signature dries on the order. Further, a good amount of potential refugees have already gone through the entire certification procedure and are merely waiting to be allowed to travel to the U.S. and begin their lives anew, as they were promised. In the aftermath of Biden’s announcement last week, there were reports of would-be refugees with plane tickets already in hand being told that they could no longer travel to the U.S.

This about-face is all the more puzzling given that the February executive order specifically instructed government personnel to build out capacity and prepare the system for increased refugee admissions, including by streamlining the vetting and giving the Office of Personnel Management broader authority to aggressively hire for refugee adjudication positions. At the time, it seemed like the administration was ready to make refugee resettlement a priority and allocate the resources to make it happen. The only thing that’s really changed since then is that the border crisis narrative has taken hold and apparently spooked Biden.

How we got here

Biden isn’t the first president to point to a supposed crisis at the U.S.-Mexico border to justify a dramatic lowering of the refugee admissions ceiling. When Trump set the refugee cap for fiscal 2020 at 18,000, he similarly claimed his administration had to lower refugee admissions to account for an increase in asylum seekers at the border—even though, as we noted above, the refugee and asylum programs operate independently of each other and most asylum seekers lose their cases anyway.

The Biden administration tried using a similar rationale to keep the cap for this fiscal year in place, despite the fact that it makes even less sense now than it did when Trump said it. Border apprehensions were on the rise in 2019, and although the Trump administration had taken several steps to prevent migrants from winning their cases—including the Remain in Mexico policy, asylum cooperative agreements with Central American countries, informal policies like “metering,” and a slew of legal maneuvers intended to make asylum more difficult to obtain—it was still legally required to let people in to file asylum claims. Thanks to the Title 42 order, which Biden refuses to lift, the U.S. could categorically turn away all adult asylum seekers at the border regardless of the danger they’re fleeing—and this is exactly what’s happening to around half the adults and families who arrive at the U.S.-Mexico border seeking protections. In other words, the claim that we can’t let in refugees because of a supposed surge at the border is nonsensical even when we are letting people in at the border; Title 42 makes it even more absurd.

There are some overlaps between the refugee and asylum programs. Both are supposed to adhere to the principle of non-refoulement, or non-return; this means states can’t send people back to countries where they face persecution due to their membership in certain protected categories. The U.S. is a signatory to the 1967 Protocol relating to the Status of Refugees, an International treaty that lays out the definition of and required treatment for refugees. At the height of the Cold War, the U.S. refugee program was a tool of soft power used against the USSR; taking in refugees from Soviet bloc countries made the U.S. look good to the international community. At the same time, though, the U.S. largely denied protections to people fleeing ally countries, such as El Salvador and Guatemala, where the U.S. was funding right-wing death squads and had fomented civil war. The refugee and asylum programs should ideally be apolitical ways of guaranteeing protections to people displaced by conflict and violence; this has never been entirely true.

The Refugee Act of 1980 systematized the way the U.S. handled refugee admissions, as well as the way refugees were resettled and integrated into the U.S. The annual admissions ceiling reached its highest point in fiscal 1980 and has generally been on the decline ever since, though there have been peaks and valleys. There’s been a clear shift in where refugees hail from in the decades since the Refugee Act was implemented. In the 1970s, most refugees resettled in the U.S. were from Asian countries, particularly those affected by the Vietnam War. Most asylum seekers at the border are from Latin America and the Caribbean, though there has been a marked increase in “extra-continental” migrants at the border in recent years, while most refugees today come from Africa, Asia, and the Middle East.

Because the refugee program requires candidates for resettlement to apply from outside the U.S. but also to have been victims of persecution in their country of origin, many refugees live in encampments around the world. According to the United Nations High Commissioner on Refugees, roughly 6 million people—more than one-fifth of the world’s refugee population—live in refugee camps, while about 78 percent of refugees live in cities. These are refugees who have yet to be fully resettled, meaning they’re essentially stateless until they’re granted protections in a safe country, if they ever are. Countries that receive refugees, including the U.S., accept a relatively small number of people each year compared to the overall refugee population. Since the process to apply for resettlement is a long one, people who are eligible for today have typically been waiting an average of about two years to resettle in the U.S. By lowering the annual admissions ceiling, the Trump administration effectively added months or years to the resettlement process, creating a bottleneck effect; by not raising the ceiling, the Biden administration is exacerbating the problem. In fact, hundreds of refugees who were slated to be resettled in the U.S. this year have had their flights pushed back or canceled altogether in recent months.

What’s next?

The administration might claim otherwise, but it’s pretty clear that, absent the widespread public outcry last week, it would have been content to leave the cap at 15,000 for the remainder of this fiscal year, and perhaps not felt much of a need to expand the cap next fiscal year to anything like what was originally promised. The somewhat surprising extent and breadth of the backlash boxed them in, to the point that now they have to issue a new number by May 15 (a date that has also caused grumbling among immigration advocates and legal providers, who wonder how long it takes to sign a piece of paper).

Will this number be 62,500? That seems unlikely given the trajectory of the refugee discourse thus far. Even if that does end up being the number it’s almost impossible to imagine that such a cap could be hit before the next fiscal year begins at the start of October. Which raises the point that, again, the cap is a ceiling. If the administration is concerned about processing capacity, it can make efforts to process as many people as quickly as it can and see where things end up. It doesn’t have to hit the ceiling it sets, which can theoretically be pretty much anything. It could set next fiscal year’s cap at 200,000 if it so chooses, and if it resettles 110,000, it resettles 110,000.

We have yet to really see the results of the directives toward improving the refugee processes and systems contained in the February executive order, but the pressure to increase the numbers could speed things along. Many of those broad ideas were good ones: the security vetting certainly could stand to be eased up, and overlapping deadlines often do leave would-be refugees in cycles of trying to gather the right documentation before other documentation expires.

The public outrage also illustrates that a vocal portion of Democratic voters are still paying attention to refugee resettlement and want to see the president’s promises kept. While the White House has been very sensitive to the perceived public relations dangers of being too welcoming or humane to humanitarian migrants, this serves as a reminder that, while immigration is often one of the first issues to fall by the wayside when Democrats are elected to higher office, the Trump era’s sadism ended up substantially increasing favorable opinions of immigrants. Many casual observers remain relatively ill-informed about the specifics of immigration policy, but they might viscerally care about humanitarian migrants in a way that they may not have before.

Under the Radar

Report finds expelled asylum seekers were subjected to violence

An alliance of human rights and migrant services organizations have released a report that documents incidents of violence against asylum seekers who were expelled under the Biden administration’s continuation of the Title 42 policy. Based on over a hundred interviews and the survey responses of an additional 1,200 asylum seekers, the report claims that there have been at least 492 documented attacks or kidnappings targeting expelled migrants since Biden was inaugurated in January.

Though the public perception is that all of these migrants are from Central America, the report documented 17 nationalities, including in the Caribbean, Africa, and the Middle East. Over 60 percent of surveyed Haitians, who have made up increasing numbers of asylum seekers and are easily recognizable in Mexico, reported that they had been the victim of a crime. While some of the people expelled are sent on flights back to their countries of origin, a large percentage are dumped unceremoniously back in Mexico.

In addition to often being extorted by smugglers who offer to take them across the border, these migrants are a frequent target of kidnappers who assume, often correctly, that they have family in the United States who will pay to have them released.

Next Destination

Sinema and Cornyn introduce bipartisan border bill

Democratic Arizona Senator Kyrsten Sinema and Texas Republican John Cornyn introduced a bill this week to address the so-called border crisis. 

The bill, called the Bipartisan Border Solutions Act, is a grab-bag of policies intended to garner support from both political parties—but some of its provisions could ultimately make it harder for asylum seekers to win their cases. For example, the bill would create prioritized dockets for asylum cases during “irregular migration influx events,” with the goal of disincentivizing those with “weak asylum claims from making the treacherous journey to the southwest border.” Previous attempts at expediting asylum cases proved to be disastrous for migrants. Migrant families whose cases were put on “rocket dockets” by the Trump administration in 2018 reported only having a few weeks to find lawyers and prepare their asylum cases, according to the American Immigration Council.

The bill would also set up four regional processing centers in Border Patrol sectors where migrant crossings are most common; create pilot programs for “fairer and more efficient” credible fear interviews for migrants; provide more translation services and legal programming for migrants (though it doesn’t seem as if it would guarantee free counsel); provide funding to hire more immigration judges, asylum officers, ICE Enforcement and Removal staff (the division of the agency that handles immigration arrests and deportations), and Border Patrol processing staff; and would strengthen the requirements for sponsors for unaccompanied migrant children.

Both Cornyn and Sinema are open to passing the bill as a standalone piece of legislation or as a more comprehensive legislative package, according to CBS News. Cornyn, however, has said it’s unlikely to pass as part of a broader piece of immigration reform. “"We've seen the difficulty of doing so-called comprehensive immigration reform,” he said. “So far, we haven't been successful in doing that all the time I've been in the Senate. So, my hope is we would start—we’d take this first step—and then we would build from there.”

The bill doesn’t include any legal protections or path to citizenship for undocumented immigrants already in the U.S., which could make it a non-starter for the more progressive wing of the Democrats. It also shows the degree to which more conservative and centrist Democrats—including Sinema and Texas Rep. Henry Cuellar, who co-introduced the bill in the house—have internalized the border crisis rhetoric.