For weeks there has been a line of mostly male migrants rounding the block outside the closed St. Brigid school in the East Village of Manhattan. They’re waiting to enter a city-run “reticketing site” in search of new shelter. According to news outlet The City, officials are hoping migrants will accept an offer for a flight out of New York. Most, however, are just seeking shelter reassignment, because they’ve reached the initial 30-day shelter limit for adult migrants and need a new place to sleep. Many wait for hours, wearing an eclectic collection of what looks like donated winter gear. A migrant walks up and down the line selling warm drinks and cigarettes to men leaning against the church or propped up on top of their few pieces of luggage. When covering similar situations a year ago, I only ever heard Spanish. But as I walk down the sidewalk now, I hear dozens of languages from Latin America, Africa, Russia, Asia.
Jonathan, who didn’t offer his last name, is a 32-year-old lawyer from Venezuela and stands in the line wearing a red jacket. “I had problems [in my country] as a lawyer,” he says in Spanish. “If you’re against the government, you’ll have problems, they’ll come to your house.” Jonathan chose to come to New York because he has some family in the city and heard that migrants are given resources to apply for asylum — a sentiment echoed by other migrants in line. But when it comes to shelter, “it’s a little more difficult,” he says. “There aren’t enough places. . . . I have friends who are going back to Venezuela.” He recently slept on a church floor where he arrived at 1 a.m. and had to leave by 6 a.m. He’s hoping for more stability from the reticketing center. “At least they told me between today and tomorrow they could reassign me,” he says. “But nothing is sure.”
Jose Rafael, 42, who also didn’t offer his last name, is another Venezuelan, and he told me that the daily uncertainty is “a psychological type of exhaustion. . . . It’s a torture.” An older Colombian man next to him started to shed tears as he told me about having to wait seven hours in the cold just to be able to sleep on the floor of a church for one night. “This man is of advanced age, he shouldn’t be out here, look how he cries with a feeling of despair,” Jose Rafael says. But migrants seem to consider their suffering to be tempered by hope for what is to come. “Thank God for Biden, because that man has a noble heart because we all want the American dream,” says Jose Rafael. “For those who entered legally and those who entered illegally — we all want to know America. . . .We want to get our citizenship.”
But current policies at the border funnel migrants into a system where their long-term legal claim to “the American dream” is uncertain, and for many, unlikely. Under past presidents, people like the men in line in the East Village might never have made it that far, because many of them lacked a strong case for asylum. But under Biden, millions of migrants — in a move that has no precedent in recent history — have been released into the country under a haphazard presumption of asylum eligibility and led down a hazy legal pathway. Others have been admitted under different programs that lack any clear or permanent path to citizenship. In the meantime, many are forced to rely on an increasingly strained state as they face mounting court backlogs and struggle to obtain work permits. In the end, many won’t meet the high legal bar for asylum and will face deportation or a life in the shadows.
As Congress continues to negotiate measures for stricter border security — negotiators appear to be closing in on a deal that links aid to Ukraine to tighter border rules — the president and Congress will have to confront the reality that securing the border is only the first step toward quelling the immigration crisis. Dealing with the legal fallout from the Biden administration’s decision to release millions of migrants into the country will be the real challenge.
Kicking the legal can down the road
Faced with historic migration numbers and political pressure from open-border activists, the administration has released hundreds of thousands of migrants into the interior to await further legal processing. They are given notices to appear in immigration court, which help move migrants out of Customs and Border Patrol custody quickly, especially as detention space at the border is at capacity. According to the Transactional Records Access Clearinghouse at Syracuse University, such notices to appear “were rarely used at ports of entry until the Biden administration.”
In October and November alone, 253,435 migrants who arrived at the southern border were given notices to appear. Eventually an immigration judge will determine whether they should be deported or are eligible for asylum or another “form of relief from removal,” in the words of the Congressional Research Service.
The Biden administration is also using a provision called humanitarian parole to deal with the high numbers of immigrants. According to the American Immigration Council, “Humanitarian parole does not provide any permanent pathway to remain in the United States and can be revoked or not renewed should [the Department of Homeland Security] decide that it is no longer warranted or if the beneficiary violates the conditions of the parole.” It appears that some of the migrants granted appointments at border ports of entry through the CBP One app are given parole with a notice to appear. Last January, the Biden administration instituted the process for Cubans, Haitians, Nicaraguans, and Venezuelans and admitted at least 297,000 migrants with humanitarian parole through November.
As with asylum adjudication, the end result of these parole programs is hazy. For example, parole for migrants from those four countries will expire after two years, at which point, according to the government agency that administers the system, “there are a full range of existing lawful immigration pathways, including an extension of parole, immigrant and nonimmigrant visas, asylum, and Temporary Protected Status (TPS), that certain parolees may be eligible for in accordance with US laws.” But a different presidential administration could also end the program altogether.
In other words, measures like parole and notices to appear are just kicking the legal can down the road. “Instead of dealing with these problems directly and concretely and with some sense of finality, you essentially just keep putting it off,” says Gil Guerra, an immigration policy analyst at the Niskanen Center think tank in Washington, D.C. “It’s really starting to catch up to us.”
The most recent statistics available are from November, when the immigration court backlog reached a record-breaking 3 million pending cases, up from 2 million cases a year earlier. Some migrants may have to wait a decade for a court date. Although the Biden administration has hired more judges over the past three years, the Transactional Records Access Clearinghouse at Syracuse reports that “more judges and higher case closures per judge have still not been able to keep pace with the flow of incoming cases.”
The result is a self-perpetuating disaster. As more migrants are released, backlogs are rising and it’s taking longer to get a ruling on one’s legal status. On top of that, only migrants with humanitarian parole can immediately apply for a work permit. Those released with notices to appear on their own recognizance must first apply for asylum in immigration court and not until 150 days later can they apply for work authorization.
That is, if they know to do so. If your head is spinning with all these rules, you’re not alone — Homeland Security acknowledges that only “a small percentage of working-age individuals paroled after making an appointment through CBP One have applied for employment work authorizations.” Navigating the layers of rules is confusing, especially for those who don’t speak English well. Cities receiving migrants are struggling to locate translators for the various languages migrants do speak. Migrants I meet often ask me to translate their legal documents or to help guide them to their next government appointments or shelter location.
Without easy access to work permit approval from United States Citizenship and Immigration Services — which can also experience backlogs — migrants like Jose Rafael must fend for themselves as overburdened states and cities run out of resources. He showed me a recent notice that his work authorization application was being evaluated. He’s been in the United States for almost two years.
Even if he gets his work authorization — which will be temporary — his American dream is far from guaranteed. In the end, many migrants “will lose [their case for] asylum, either because they don’t have an attorney to represent them or they don’t have a strong case on the merits,” says Stephen Yale-Loehr, a professor of immigration law at Cornell Law School. Coming from countries with difficult political circumstances isn’t enough — asylum is granted based on persecution due to race, religion, nationality, membership in a “particular social group,” or political opinion. “It’s very hard to show that the persecution is well founded based on one of those five characteristics,” explains Yale-Loehr.
When the dust settles, migrants will generally fall into three categories: those who qualify for asylum, those who don’t and could face deportation, and those who have disappeared into the shadows. Guerra, of the Niskanen Center, believes there will be a “large population [of migrants] who may be precluded from working or who basically live in total and complete uncertainty.”
“That’s bad for our legal system, it’s bad for our economy, and it’s also bad for the migrants themselves,” Yale-Loehr says. He has underlined the need to fund more border patrol agents, more ICE agents for deportation, and more judges to help clear asylum backlogs.
In the short term, Biden should abandon policies that make the asylum system the easiest option for entry regardless of one’s legal claims. In the long term, Congress must reform the immigration system to incentivize the use of legal pathways.
Yale-Loehr and his colleagues recently wrote a paper expressing the imperative to “expand other legal avenues of migrants to the United States” beyond asylum. “We cannot cut off all avenues to asylum, but we also cannot continue to accept applications from all who arrive, especially those with highly unlikely claims,” they write. Guerra believes that offering more work visas and creating more temporary work programs could stem the tide of border crossings. He points out that this year there’s been a spike in Indian nationals coming to the southern border after struggling to obtain work visas. “They have sussed out that they have a better shot of going through the border,” Guerra says.
It’s the same costly calculation that migrants like Jose Rafael have made in hopes of a better life. “Here are people who come to work, here are people who want to overcome, here are people who want to pay their taxes, here are people who want to remake their life,” he says. But arriving in the United States is just the first step on another long, arduous journey. “We’re waiting for a miracle.”
Carine Hajjar is a Globe Opinion writer. She can be reached at email@example.com.