Today’s Immigration Crisis: A Broken Asylum System An Interview with Muzaffar Chishti

In 2023, a record-breaking year for immigration, the number of asylum seekers crossing the border nearly doubled from the previous year. Right now, the sheer numbers of people converging at the Mexico-U.S. border—more than 300,000 in December 2023 alone—has become a crisis in the minds of most Americans and a touchstone in the 2024 presidential election. In December 2023 —and again in January 2024—Muzaffar Chishti of the Migration Policy Institute sat down to discuss the border crisis with NLF Associate Editor Kitty Krupat. What follows is an edited excerpt of their conversations.

Kitty Krupat: As we approach the 2024 presidential elections, immigration appears to be a dominant issue—it may be the most dominant issue. What is your view on this?

Muzaffar Chishti: For many years now, immigration has been one of the prominent issues in presidential elections; but it has never been the dominant issue. For a while, even in this election year, immigration ranked along with the economy as one of the two major issues. But at this point, it is inching up as the most important issue. Based on poll results, it may determine the outcome of the election.

There are two reasons for that. One is that Donald Trump is all but the likely Republican nominee. That takes us back to 2016, the year Trump first got elected. In his campaign, Trump made immigration his defining issue . . . All I want is to build a wall; I want to get Mexico to pay for it; I want to keep out all the criminals and rapists. . . .

Trump had concluded that immigration was a winning issue. And to the surprise of many, he not only won the election on that platform, but he also kept his promise—ushering in some of the most mean-spirited, punitive immigration policies in recent history. It is no surprise that he is coming back with immigration policy as his calling card in the upcoming election. And he is going to weaponize it as much, if not more, than he did in 2016.

The second reason is that we have entered a new chapter in our immigration history, which I describe as the “Biden Border and Busing Crisis.” The crisis has two distinct dimensions. First, there is an unprecedented crisis of migrant arrivals at the border. Second, the border crisis has manifested itself in the states and cities of the country far from the border in a way that has, again, never happened before.

KK: Let’s first talk about the border. How would you characterize the crisis at the border?

MC: In the first three years of his administration, President Biden has faced an unprecedented crisis at the border, though it took him a long time to use the word “crisis.” According to the Department of Homeland Security (DHS), over 6.2 million migrants were encountered at the U.S. southern border between 2020 and 2023. In December 2023 alone, there were more than three hundred thousand encounters. That is more than the population of Pittsburgh. This is not normal by any standard, so this challenge has become a major issue in domestic politics and a defining issue for Biden. It has also been a gift for Trump.

KK: Beyond sheer numbers, what is different about the present challenge at the border?

MC: Other than the scale, the profile of migrants arriving today is posing a different kind of challenge.

Ten years ago, the border challenge would be described as large numbers of single Mexican men, trying to sneak into the United States to find a job. Our immigration laws, regulations, and resources were designed for that era. The definition of that era no longer holds true. More and more, immigrants are arriving as whole families, what the Border Patrol folks call family units. In fact, December 2023 marked the first month in the history of U.S. immigration when more Mexican families arrived at the border than single Mexican men. Dealing with family units, both in terms of their legal rights and their needs, is a different challenge.

And now, migrants are coming to the Southwest border from all parts of the world, not just from Mexico, Central America, and South America. They are arriving increasingly from Asia, Africa, and parts of Europe. The four major sending countries are Haiti, Cuba, Nicaragua, and Venezuela. These are countries with unstable regimes, with whom we have, at best, tenuous diplomatic relations. We cannot easily send migrants back to these countries, even if we wanted to.

Finally, while some migrants are leaving their home countries for political reasons, many are coming for economic reasons. And most importantly, they are not “sneaking in.” They are coming with their hands up, saying we are here to seek asylum.

KK: That implies that the asylum system itself is contributing to the crisis.

MC: Exactly. The original intent of the asylum system was to provide refuge for those who deserve it and deny it to those who do not. But the system has become dysfunctional. The sheer number of asylum seekers today creates an operational challenge. In the past, if you were a migrant and sought asylum, you would be screened at or near the border by an asylum officer who would assess if you had a “credible fear” of persecution back in your home country—a fear based on race, nationality, membership in a social group, or for espousing a particular political opinion. In effect, the question was: is your asylum claim credible enough to be pursued for final determination inside the country. If it was, you would be handed a notice to appear for a hearing before an immigration judge at a location of your choice, where a final determination of your asylum claim would be made. The location normally would be where you had some familial or other network connection. Typically, those who passed the screening would be met by representatives of a faith-based or other non-profit organization, which would provide shelter and food for a couple of nights; then the organization would help you arrange transportation to your location of choice, which is where you also would have your asylum hearing. However, in the present crisis, very few asylum seekers get a “credible fear” screening at the border. Instead, they are sent inside the country to pursue their asylum claims at a hearing in the immigration court system.

The court system where these hearings are held is drowning in caseload. Immigration courts are backlogged, with close to three million cases pending. Cases can thus linger in the system for as long as seven years. While their cases are pending, asylum applicants are entitled under the law to work and cannot be removed from the country. So, someone says look at me, I’m able to stay here for seven years, with the right to work. This message gets circulated widely through social media and smuggling networks. A backlogged court system thus acts as a magnet for others to  seek asylum. It is a huge pull factor, adding to the crisis in numbers.

KK: Now moving from the border, what is the crisis in the cities and states?

MC: This is what I call the “busing chapter” of our immigration history. In the spring of 2022, Texas Governor Greg Abbott made an extraordinary political move. He decided to bus migrants from the border to cities beyond the border—to New York, Philadelphia, Chicago, and Denver—all cities that he claimed identified themselves as “sanctuary cities,” a code term for immigrant-friendly cities. His stated position was: You sanctuary people, here’s a taste of what we deal with at the border. . . . It was the first time in our history that migrants were bused from the border to the interior of the country. That’s why I call it the Busing Chapter.

At first, the receiving cities were throwing out the red carpet. We are the Statue of Liberty City. . . . We are citizens of the world. . . . New York Mayor Eric Adams went to the Port Authority bus terminal to greet the first busload—as if to say I’m the anti-Abbott. People started calling the bus operation a criminal enterprise, kidnapping people against their will. Migrants are rational people; they recognized a good thing when they saw it. As the numbers started increasing, cities and states began to reckon with the fiscal cost of the welcome mat.

New York City became a special case. Based on a series of court-issued consent orders in the 1980s, New York City recognizes a universal right to shelter. Its origins lie in a provision of the state constitution. This laudable and progressive principle has become part of the ethos of the city. But it had never been used for migrants in this manner and on this scale before the busing chapter began. At first, for a few hundred people, it was okay. But then it became a shelter crisis. An overextended shelter capacity had to be supplemented by expensive hotel rooms. And the price tag
became hefty. The mayor issued a series of estimates: one billion, two billion, three billion, and then twelve billion dollars over three years. The actual numbers are disputed. But people saw migrants competing with others for scarce city resources. And all this was happening at a time when the city was just climbing out of the Covid crisis.

KK: And beyond New York?

MC: It has become a fiscal crisis for other states and cities, too. In the past, the secret sauce of immigration across the country was that migrants were seen as a net gain, fiscally. They came; provided their labor; filled jobs many Americans did not want to take; paid taxes; contributed to the social security system. At the same time, they did not get any benefits—mostly because they were not eligible for any. So, it was like all benefits and no costs. That got reversed in the current migrant crisis. People came, but they did not work—partly because they were not eligible to get work permits until six months after filing their asylum applications. At the same time, they were using scarce financial and social resources of municipalities. The fact this new wave of migration includes such a large percentage of families with children has made this especially true. Thus, it became all costs, and minimal benefits. That changed the perception of immigration as a net gain to the nation and to the states and cities where they were converging. People who had been relatively pro-immigrant started to change their tune. This opened the door to harsh anti-immigrant political rhetoric. And now, immigration is a major political issue, affecting the 2024 election. People are asking for change in our border policies—not just Republicans but Democrats, too.

KK: What changes can Biden pursue to address the border problem while preserving a fair and generous asylum system?

MC: Our asylum system has to be orderly and fair, and efficient at the same time. To this end, there are three important changes the Biden administration could make that do not require congressional approval. These are both legal and operational. Finding a way to limit the number of people who are admitted into the country is one. That does not mean we should abandon our values as a country committed to the principle of providing asylum. Asylum is a founding principle of our nation, and it is important for our leadership to maintain it in a world where we ask other countries to provide humanitarian protections. Nevertheless, we have to reform the asylum system in order to save it.

But in our current backlogged immigration court system, those who deserve asylum have to wait for years, and those who do not effectively game the system by clogging it. Biden could alleviate these problems by screening asylum seekers right at the border, assessing whether asylum seekers meet the “credible fear” standard for eligibility. A threshold determination at the border would trigger one level of appeal. After that appeal, those deemed clearly ineligible for asylum under the law would be screened out at the border and removed. Among other things, that would eliminate false hopes.

The whole process of determination could be completed within three weeks.

KK: How would people be housed and cared for during these three weeks at the border?

MC: This would be done at newly created “processing centers.” These centers would operate less like detention facilities and more like campuses, where relevant agencies of the government would operate collaboratively. These agencies would include Border Patrol, Immigration and Custom Service, Citizenship and Immigration Services, Health and Human Services, the immigration court system, FEMA [the Federal Emergency Management Agency], the Department of Defense, and the State Department. Legal service providers would be handy to provide legal services to migrants. Essentially, it would be “all of government” plus the private sector. There would be recreational facilities, even educational facilities, especially for kids.

Such facilities can be made comfortable for families to stay for three weeks or so. In a streamlined asylum procedure, that should be enough time to complete the credible fear determination.

KK: In this plan, as you have described it, those who do not pass the credible fear threshold would return to their home countries. What happens to those who do pass?

MC: That takes me to the second reform the Biden administration should make. If migrants pass the threshold test, their full asylum cases should then be heard not by immigration judges, but  by asylum officers. These are civil servants who are country experts. The proceedings before them are not adversarial as court proceedings are. Cases can be completed in months instead of years. The backlog in determining status would be alleviated, and I believe we will get a more fair and more efficient outcome. I think it will improve the integrity of the whole enterprise. It may also help to prevent disparities in the outcomes of asylum cases. In the present system, a judge in liberal New York is more likely to grant asylum than a judge in conservative Texas. Asylum officers can be trained and supervised more uniformly.

KK: Where do asylum seekers go once they pass a threshold screening at the border?

MC: That takes us to the third reform the Biden administration should pursue. Right now, immigrants who are admitted into the country decide where they want to go. That has contributed to the disproportionate burden placed on big cities like New York or Chicago.

We—as a country—should acknowledge that the new migrant flows at the border present an unprecedented national crisis. It is not a border versus interior crisis, or a Republican versus
Democratic crisis. It needs a national response. We should treat it akin to how we deal with refugees we admit to the country. As it does with respect to refugees, the federal government should take responsibility for deciding where asylum seekers go initially. That assignment process should not be arbitrary. Family comes first—if someone has relatives in Colorado, that is where they should go. If there is no family connection, then the decision to assign where migrants go should be based on factors like housing costs and employment opportunities. In many ways, this process would make the transition to a new life easier. Once people reach their assigned destination, they are on their own. If someone is unhappy in Colorado, they can go to Illinois, or any  place they choose, while they wait for a decision on their asylum application.

KK: What would it take to put this system into effect?

MC: Building border processing facilities—and doing it successfully—would require a robust infrastructure. Housing facilities, which are family friendly, are a critical piece of it. The administration would have to recruit and train a corps of new asylum officers—possibly as many as five thousand. Legal representation for asylum seekers is essential to a successful plan. Legal representation cannot be scaled up just with lawyers. Paraprofessionals will play a critical role. They will be needed at the border processing centers in the interviews to determine credible fear and then in submitting the formal asylum applications. They could also provide counsel on the viability of claims or appeals. Only when migrants have access to representation can we all have  faith in the integrity of the system.

KK: All this costs money, right?

MC: Right. Money is needed not only to implement the plan but also to reimburse states and localities for the costs they incur. The costs would be substantial and would require supplemental funding. And that only Congress can provide. Money sometimes is as important as policy change.

There was a significant bipartisan effort in the Senate to provide supplemental funding for border measures, along with some policy changes for border control and asylum reform. But it met a dead-end when former President Trump signaled to the Republican-controlled House not to support it. Raw political calculations trumped the need for real reform.

KK: What role can unions play in supporting the plan and in providing support to asylum seekers?

MC: So far, most unions have not been engaged in the present migrant crisis debate, but that does not mean they should not get involved. The “Busing Chapter” especially has highlighted important things—small and big—they can do, especially in large cities. It can be just as simple as helping to provide interim or short-term shelter in union halls or providing a meal and a place to rest. These are things religious organizations are doing today. Unions could chip in. It is easy for unions to do these things, and it is a very visible contribution.

Unions obviously cannot get work permits for migrants, but they can initiate training and apprenticeship programs, so that migrants are ready to enter the labor market when their work permits come through. And if unions do this in collaboration with one another and with some employers, that could force local governments into participating as well. This is important for labor as an institution. It is a great way to unite workers—to give them a taste of union solidarity and power. That can spread from community to community and can broaden a union’s base. These are the small things, but unions can also be a major force, especially in this election year.

The very big thing labor can do is to influence the Biden administration in its policy toward migrants. Given election politics in the present moment, Biden would rely on unions. They could say they strongly favor policy ideas like the ones we have summarized here.

KK: Unauthorized immigrants have the right to organize, correct? Has the Biden administration done anything specific to protect the unauthorized in this regard?

MC: There’s nothing in the law that says you must be authorized to be unionized. So, yes. On this point, Joe Biden gave immigrant workers and unions a great gift last year. He signed an Executive Order that protects any worker—regardless of immigration status—from retaliation by an employer. What is significantly new about this policy is that retaliation—if proven—allows a worker to apply for a work permit and protection against deportation. That is called Deferred Action status, similar to what DACA [Deferred Action for Childhood Arrivals] recipients currently have. It applies, for example, to an immigrant worker who got fired for bringing a wage claim against an employer or an OSHA [Occupational Safety and Health Administration] complaint or for signing a union petition. That is a big advance for immigrant workers and a great help to unions in their efforts to organize.

KK: How else would you summarize Biden’s record on immigration?

MC: His record on immigration is impressive. Unfortunately, it is all but eclipsed by the border crisis. But he deserves credit where it is due. Under his administration, legal immigration to the country has returned to a pre-Covid, pre-Trump normal of more than 1.2 million a year. Refugee admissions, which sank to a historic low during the Trump presidency, are inching up to the historic highs of the 1990s. Close to three million more immigrants have some form of legal status today, even though liminal. To me, the administration’s most major accomplishment is how it has reshaped interior immigration enforcement—the operation of ICE [Immigration and Customs Enforcement]. While Obama was known as the Deporter in Chief, Biden has become the opposite. During the Trump administration, ICE’s motto was every unauthorized person should be looking over their shoulder. That era is gone—at least for now. Today, if you are an unauthorized person and have not committed a crime, you can be reasonably sure that if you leave your home in the morning, you can come back at night and see your kids. That is where the rubber meets the road. To me, as someone who is concerned about what policies mean to real people, that is an existential difference.

Author Biographies

Muzaffar Chishti, a lawyer, is a senior fellow of the Migration Policy Institute and the director of MPI’s office at New York University. Prior to joining MPI, Chishti was the director of the  Immigration Project at the International Ladies Garment Workers Union, later UNITE.

Kitty Weiss Krupat, a life-long trade-unionist, is an associate editor of New Labor Forum. She formerly served as associate director of CUNY’s Murphy Institute and has been an immigration- clinic volunteer since 2016, providing assistance to asylum seekers in New York City.