Here’s How a Border Deal Could Affect People Seeking Asylum in the U.S.

An urgent bid by the Biden administration to send a fresh infusion of money to Ukraine for its war against Russia has stalled on Capitol Hill as congressional Republicans demand sweeping changes to the immigration system.

Bipartisan talks on Capitol Hill to resolve the impasse have focused on the U.S.-Mexico border — and whether the United States can keep using its current system for deciding who is allowed to enter the country and seek asylum.

It is a highly charged debate that touches on a bedrock principle that has long been at the center of American immigration policy: that the United States should be a refuge for people who were being persecuted or under threat in their home countries.

Here’s what is in play.

Why focus on asylum?

In recent years, a skyrocketing number of migrants have arrived at the southern U.S. border seeking asylum — whether or not they actually were eligible. The increasing number of arrivals during the Biden administration has fueled Republican attacks on how the asylum system works and led to demands for major changes.

Republicans, and a growing number of Democrats, say the system has grown dysfunctional because it effectively allows any migrant to enter the country, claim they fear for their life, and remain for years as their case makes its way through immigration court.

Immigration advocates and experts say that U.S. law allows any migrant crossing the border the right to seek asylum and have their claim be heard, and that attempts to bar or limit them are both illegal and immoral.

Who is supposed to get asylum?

Migrants are eligible for asylum if, according to the Department of Homeland Security, they are unable to return to their country because of “persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group or political opinion.”

In an initial asylum screening — known as a credible fear screening — migrants must show that they would be able to establish that fear of persecution or torture in front of a judge.

Who claims asylum now and what happens to them?

Migrants from across the world who arrive at the southern U.S. border often claim asylum after being picked up by Border Patrol agents. These migrants can be detained and taken for an initial asylum screening. But more commonly, because of the dwindling capacity to detain people at the border, they are released and put in the immigration court system to have their asylum claims determined there in a few years.

The Biden administration has acknowledged that the asylum claims of many migrants are not legitimate. In a regulation issued earlier this year, U.S. officials noted that while 83 percent of people claimed fear to prevent a quick deportation at the border from 2014 to 2019, just 15 percent of them were ultimately able to obtain asylum in immigration court.

“The fact that large numbers of migrants pass the credible fear screening, only to be denied relief or protection on the merits after a lengthy adjudicatory process, has high costs to the system in terms of resources and time,” the government regulation issued by the Biden administration said.

Immigration experts believe the statistics cited by the government can be misleading and are more complicated than they appear. But Republicans have seized on the discrepancy, arguing that it is grounds for stricter standards and more aggressive policies for detaining or expelling migrants.

How did the Trump administration treat asylum seekers?

The Trump administration was focused on limiting asylum access at the southern border. It attempted to do so in various ways, including blocking protections for those who crossed between ports of entry or for those who came through another country on the way to the United States. These policies were often stymied in federal court.

One Trump policy that survived various legal challenges forced migrants seeking asylum at the southern border to remain in Mexico for the duration of their immigration court proceedings. The policy was blasted by immigrant advocates and Democrats, including Jill Biden, who visited one of the camps that formed in Mexico as migrants waited for their hearings.

After the onset of the Covid pandemic, the Trump administration instituted a policy known as Title 42 to immediately turn back asylum-seekers without access to the same protections.

What changes has Biden made?

The Biden administration rolled back the “Remain in Mexico” program in 2021, allowing migrants who had been delayed there to enter the United States and seek asylum. The administration kept Title 42 in place until finally trying to wind it down last year. Because of legal challenges, it was not lifted until May.

But as arrivals swelled at the border, the administration instituted a new asylum policy that resembled Trump-era practices. The policy, which went into effect as Title 42 lifted, makes it more difficult for migrants who cross into the United States without authorization and do not seek protections in advance to claim asylum once they arrive. A federal judge struck down that policy in July, saying that it was “contrary to law,” but a federal appeals court said it could continue while the appeal moved forward.

What is under discussion in talks on Capitol Hill?

The talks on Capitol Hill have focused on the border and asylum processing.

The Biden administration and Democratic senators have signaled they are willing to toughen the initial asylum screening at the border. They have also indicated an openness to reinstituting a Title 42-like power to turn back migrants immediately and expanding detention capacity to hold more migrants.

Republicans have also sought to bring back the Remain in Mexico policy, a move that Democrats have resisted.

Would any of this make a difference?

It’s unclear. The number of migrants at the southern border dipped over the summer after Title 42 was lifted and the new Biden administration effort to limit asylum went into place. In recent months, however, the numbers of migrants arrested have increased. In September alone, there were more than 260,000 migrant apprehensions at the southern border, according to government figures.

A tougher version of the initial asylum screening is already available to government officials at the southern border, but the government does not appear to have enough detention capacity or asylum officers to handle the process in a comprehensive way.

Raising the initial asylum screening standard “could result in more people being returned, though how many more will depend on how the change is implemented and what resources are allocated,” said Kathleen Bush-Joseph, a policy analyst at the Migration Policy Institute.

She added that most of the migrants screened under the Biden administration’s new, more restrictive asylum policy “have been deemed in need of protection and allowed to enter the country to pursue their claims.”

Reviving a power to immediately turn back migrants at the border also is no guarantee that they would be deterred from crossing, as numbers were high even when Title 42 was in place over the last few years.