One of the reasons that immigration has increased substantially in recent years is that immigrants are seeking asylum within the United States.
Making a claim of asylum requires being in the country, meaning that the process provides an incentive to cross the border from Mexico. Once the claim has been made, it triggers a legal process that can, in some cases, result in a years-long wait for a hearing before an immigration judge. Often, immigrants are released from custody by the Department of Homeland Security (DHS) to await those hearings in the United States.
There are various points at which this path can be diverted. Under a process introduced in 1996, those seeking asylum are given an initial screening to determine if their request is rooted in a credible fear — if, in other words, they are actually seeking asylum because of conditions in their place of origin.
If it is determined that they don’t have a credible fear, they can be removed from the country. Under the Trump administration, the government implemented a policy called “Remain in Mexico,” in which those who were determined to have a credible fear weren’t released into the United States to await a hearing but, instead, sent back to Mexico in the interim.
One challenge that exists is a lack of resources to adjudicate credible fear claims.
“Crucially, credible fear interviews REQUIRE an asylum officer to carry out,” Aaron Reichlin-Melnick, policy director of the American Immigration Council, explained in an email. “If there are not asylum officers available to carry out credible fear interviews, then DHS officials cannot order a migrant deported through expedited removal. They can either keep the migrant detained until such time as there is an asylum officer available (which may take weeks or months), or they can instead issue the migrant a notice to appear in court in front of an immigration judge, skipping the credible fear process” — and thereby relying on an eventual hearing before an immigration judge.
The policy being introduced by Biden intends to quickly remove those who cross the border illegally — that is, between established border checkpoints — if the number of people crossing illegally is at or above 2,500 per day. That level has been reached frequently in recent years — both during most months of Biden’s administration and for a period under Trump.
Customs and Border Protection releases data on the number of apprehensions made by the Border Patrol. While daily figures can fluctuate, the average number of apprehensions per month has been over 2,500 in 29 of the 40 months that Biden has been president. (Data for May 2024 are not yet available.)
Under Trump, there were four such months. Under George W. Bush, there were 54.
Part of the reason for the decline in Bush’s second term and the low levels under Barack Obama was an expansion of border barriers that pushed more immigrants to border checkpoints. It’s also worth noting that the population of Mexico has increased by nearly a third since 2000, while apprehensions increased by about 5 percent from 2000 to 2023. Larger populations in Mexico and Central America are a small reason that more people are seeking asylum in the United States.
DHS also makes bimonthly reports to Congress on the number of people undergoing credible fear interviews and reporting the results of those interviews. The gap between the number of people entering the United States and the number interviewed is stark: In April, there were about 129,000 people apprehended after crossing the border illegally but only about 18,000 new credible-fear cases recorded. About 4,300 immigrants were determined not to have a credible fear that month — about as many apprehensions as there were each day of April.
This goes back to Reichlin-Melnick’s point: The number of asylum officers available to conduct these interviews is limited, just as is the number of immigration judges able to hear cases.
“Without additional funding, the administration’s ability to close the border to illegal crossings may face many of the same limitations that have hampered previous efforts to deter migration by curbing asylum access,” The Washington Post’s Nick Miroff and Maria Sacchetti write about the new Biden policy. “U.S. border authorities lack detention space, deportation capacity and sufficient number of asylum officers to uphold the basic U.S. legal obligations to prevent someone from being sent home to face torture, death or other grievous harm.”
Once the 2,500-crossing limit is passed, the process will be limited — but those seeking asylum will still need to be vetted to ensure that they are not at risk if they are removed from the United States.
There is an additional change that would make this screening process faster. Instead of immigrants being asked a series of questions to determine whether they fear return to their home countries, the immigrant would need to “manifest or express a fear of return to their country or country of removal, a fear of persecution or torture, or an intention to apply for asylum,” as a DHS document explains. In other words, immigrants will need to express such a fear proactively. In practice, this yields fewer immigrants treated as asylum seekers.
As is often the case with a presidential effort to work around congressional inaction, Biden’s proposal has significant challenges that are hidden beneath the top-line rhetoric. Here, the most important is the same challenge that has existed for years: There are not enough resources to handle an influx of immigrants that’s driven, in part, on the strength of the economy. We then tend to get responses that address the politics more than the problem.
