What potential asylum changes could actually mean for migrants

Senators remain at an impasse over immigration policies that may determine the passage of President Joe Biden's funding request for Ukraine, Israel and Taiwan. Negotiators plan to stay in touch throughout the weekend, but a deal feels increasingly out of reach, even as the White House pushes senators to forge ahead.

Restricting the asylum system is a top priority for Republicans. West Wing Playbook called Ava Benach, an immigration lawyer of 25 years, to break down what the potential measures being discussed would actually mean for migrants. This conversation has been edited for length.

How would all of this affect asylum seekers? 

They’re definitely looking to make it harder to qualify for asylum. One is a rewriting of the ‘credible fear’ standard that immigrants go through when they’re first screened for asylum eligibility, to make it harder to pass that screening. 

The second thing, I’ve heard, is to restrict the government’s ability to ‘parole’ people into the United States, which is a mechanism that allows the entry of people otherwise ineligible to enter. 

And third, they are trying to put some teeth back into the Safe Third Country agreements that the Trump administration entered into, to force immigrants to demonstrate that they (first) sought asylum somewhere else on their journey to the United States.

What are those credible fear interviews like? 

These are conducted relatively quickly after entry. So you have people that have been journeying to the United States for days, weeks, months, crossing dangerous territories. They are exhausted, confused, terrified. And they have to recount the most traumatic experiences of their life to somebody through a translator — usually without legal assistance — over a video screen. Raising the standard will result in fewer people passing that and being given the opportunity to present that application for asylum.

The Trump administration’s Safe Third Country Agreements were struck down by the courts, and Biden’s so-called transit ban has also faced legal hurdles. Congress could really change the legal landscape.  

When you see lawsuits about immigration law, they’re almost always about actions by the executive and the interpretation by the executive. So if Congress puts it into statute, it becomes a much more legally sound policy. Congress has been deemed to have what’s called plenary power over immigration, meaning it can basically do anything as long as it’s not blatantly, discriminatory, or unconstitutional. 

There’s also a lot of concern about the parole component — I had one former administration official tell me this week that without this power, Biden would lose the central piece of his border management strategy. 

Parole has been a useful tool for the immigration agencies for decades, as a means to address crises and people in danger.

Parole gives the administration the opportunity to look at these folks and make decisions about their entry into the United States, whether they should be detained or whether they should be allowed to enter and go into the community. So the law still is that you can apply for asylum and if you don’t have that parole authority, the only choice you have is to detain, unless you have a “Remain in Mexico” sort of situation.

You’ve criticized the policies being discussed. No one is actually working on a complete overhaul of the immigration system — but in a world where they were, would this change your mind about the specific policies being floated?  

If you’re talking about additional immigrant visas and reduced backlogs, and an immigration system that’s responsive to the needs of American families and businesses — as long as we’re dreaming, I would say sure, restricting the ability to parole people into the United States makes sense where there’s an efficient and reasonable visa system. 

What do you think people are missing in this debate?

There is what I think is a misguided belief that they will be able to deter people from showing up at the border — from fleeing violent and dangerous and hopeless situations. And that they can be deterred by the prospect of not having legal status, of being detained. 

The knee-jerk approach, in my opinion, is always more harshness and more cruelty will solve the problem. But when you’re dealing with a situation where your kids’ lives are at risk, and it’s dangerous just to walk out your door, people are going to take some extreme measures despite the potential consequences.

I’ve said since I started practicing 25 years ago that the single biggest cause of illegal migration is the lack of opportunities for legal migration.

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