NY Times Opinion: Gov. DeSantis is responsible for our broken immigration system

Source: Hot Air

Author Dara Lind doesn’t quite come out and say what my headline does, but she does her best to imply that’s the case. The piece opens with her reflection on DeSantis decision to fly 48 migrants to Martha’s Vineyard and from that intuits that the GOP is pushing to end asylum laws entirely.

…even trollish stunts have consequences for policy debates. The broader the attacks by the Republican governors, the narrower the space of alternative policies they could support. By refusing to articulate what America ought to be doing on the U.S.-Mexico border, Mr. DeSantis is painting himself and his party into a corner — where the only acceptable position will be rejecting the principle of asylum entirely…

What’s at stake, though no one is willing to articulate it, is the idea of asylum itself: Does America still embrace its obligation under international law to provide sanctuary to at least some unauthorized immigrants? The answer is no longer obvious. By continuing to insist that the status quo is “open borders,” Mr. Abbott and Mr. DeSantis are sending the message that the asylum law the United States has had for 42 years is intolerable — without openly calling for its repeal.

That’s really her thesis, that Republicans want to end asylum laws completely. But along the way she does admit that the immigration hawks have a point. Speaking of the repeated efforts by successive administrations to convince migrants not to come to the US border, Lind writes:

The “don’t come” message is impotent because it gets mixed up with word of mouth: from migrants already in the United States, gossipy neighbors, opportunistic smugglers. The whisper network can convey when people are safe in the United States — the hawks are right about that.

For that one brief paragraph it seems as if she gets it. Our officials, including Biden when he was Vice President and Kamala Harris now, make trips to Central America to tell migrants to stay home, meanwhile the whispers and the coyotes are telling them something different. Unfortunately, she immediately bungles this insight completely.

In a way, that’s how it’s supposed to work. Migrants are receiving the message that the right to seek asylum is open to them, because it is…

The commitment to asylum is a message that needs to be sent, both to the international community and to would-be asylees themselves, who need to know they have somewhere to flee to safety.

There’s a really obvious problem here that, for some reason, Lind is choosing to overlook. She’s right about the “whisper network.” She’s also right that the US has an obligation to maintain an asylum system for those who truly need it. But in these paragraphs she’s conflated the two in a way that isn’t justified. Because most of the people applying for asylum now are not going to receive it. They’re not going to received it because a judge will determine they don’t have a legitimate case. There are lots of sources of information about asylum grant rates but I’m going to use this FactCheck from last year.

For example, the FY 2019 data broke down this way:

  • Grant rate: 15.31% (8,480)
  • Denial rate: 31.94% (17,692)
  • Other rate: 11.19% (6,197)
  • Administrative closure rate: 0.03% (18)
  • Percentage of No Asylum Application Filed: 41.53% (23,001)


The largest percentage in the EOIR table, however, is for cases in which someone is said to have not submitted an asylum application after a credible fear interview. That changes the grant rate significantly.

“It’s very strange to include in an asylum grant rate those who never applied for asylum, particularly where that group of non-applicants makes up over 40 percent of the overall group,” Jeffrey Chase, an immigration attorney and former immigration judge, told us in an email. “There is an obvious implication that those who didn’t apply aren’t real refugees, or gamed the system.”

He noted that if the rates had been calculated by considering only asylum claims that were filed and reached a conclusion of granted or denied, the grant rate for FY 2019 is 32.4%. That’s the way the rates were previously calculated and reported by EOIR, Chase said.

I don’t assume that all of those 41% of people who never file a real claim are gaming the system but some of them certainly are. In any case, the percentage of people who are eventually granted asylum depends on who you include in the denominator. If you include all of the people who passed their initial “credible fear” interview at the border then it’s just 15%. If you include only those who went on to formally apply for asylum it’s 32%. Either way, it’s a minority of people who started the process.

The reason why it’s a minority isn’t hard to discern if you watch a few interviews with migrants. They almost uniformly claim they are coming to the US border for a better job and a chance at a better life. They are, in other words, economic migrants (including some of the migrants sent to Martha’s Vineyard who said these same things). But they’ve learned somewhere along the way, from the same whisper network, that saying you want a job will only get you deported or removed from the country. So what they say instead is that they have a credible fear of being persecuted if forced to return home. And that has the effect of allowing them to stay.

How long is the wait for an asylum claim to go before a judge? Dara Lind doesn’t say exactly but a recent NY Times report put the average wait for a hearing at seven years! Seven years during which many of these migrants will have married (if they weren’t already) and had children who are US citizens.

And what happens to the majority of migrants whose asylum claims are ultimately rejected? ICE prioritizes the removal of violent felons and migrants caught near the border. So if you’ve been living in Indiana quietly for seven years when the judge rules your asylum claim is invalid, chances are you can just ignore him, maybe move to another town and nothing will ever happen. No one will come to get you. At the end of all of this waiting, the asylum system doesn’t really matter. Even the Biden administration knows that.

…the Biden administration is trying to tighten the asylum system in exactly the ways hawks had been asking for. Hundreds of thousands of migrants are being monitored with GPS-enabled ankle bracelets or cellphones to prevent them from absconding. A new regulation aimed at expediting the asylum process by sending those with weaker claims home within weeks was piloted this summer; nearly half of asylum claimants were rejected at the screening-interview stage, up from 15 percent under the old screening process…

The American people (and refugees around the world) at very least deserve something better than mixed messages about the fundamental commitment of asylum. It’s hard to reconcile the flippancy with which Governors Abbott and DeSantis are treating their migrant stunts with the global life-or-death gravity of the implications.

Again, I agree that the US needs to offer asylum to people who genuinely need it. The problem that Dara Lind doesn’t want to confront is that the current system is being gamed by the overwhelming majority of the people using it. It’s not quite “open borders” but people who a) probably weren’t eligible in the first place and b) won’t leave when their claims are rejected shouldn’t wind up in very nearly the same position as those who had legitimate claims. That’s a broken system and it’s not something southern governors can fix.

Republican governors aren’t demanding an end to the asylum system, they’re demanding an end to an overwhelmed system. The system is overwhelmed because so many people have learned how to game it. The solution is to fix it but if the broken system is the one progressives secretly prefer (because it lets a lot of people in), then eventually the people dealing with the outcome will turn against it.