America now has an asylum lottery.
For all the attention paid to the United States-Mexico border in the days before and after the end this month of Title 42, which allowed federal officials to summarily expel unauthorized border-crossers without letting them ask for asylum, few people (on the U.S. side, at least) seemed to notice the lottery’s creation. But it’s here.
The lottery system might sound a bit shocking: Surely there are fairer and more meritorious ways to determine who’s allowed to set foot on U.S. soil and invoke her legal right to apply for humanitarian protection, right?
What’s truly shocking, though, is that this is one of the fairer solutions available, given the mismatch between the number of people wishing to claim asylum for the past several years and the government’s capacity to receive them.
The U.S. government tells people, time and again, to come the “right way.” Thousands of people just over the border are listening: They surprised observers by not crossing in record numbers in the hours after the Title 42 order expired. The Biden administration has taken steps to help them comply, but neither this administration nor its predecessors have taken the prospect of expanding access to asylum at ports of entry — official border crossings — as seriously as the temptation to restrict asylum outside them.
The administration and Congress need to correct that imbalance. If access to asylum is going to be assigned at random, the U.S. government had better make sure it’s doing everything possible — especially expanding staffing and physical space at ports — to maximize the number of slots available. And it must work toward evaluating everyone’s asylum claims on the merits.
The lottery doesn’t determine who wins asylum; it chooses who’s allowed to apply for it. Hundreds of slots a day are assigned to asylum seekers waiting on the Mexican side of the border, who’ve signed up for the lottery using the CBP One app, run by Customs and Border Protection. The federal government claims that slots are awarded based on an algorithm that gives more weight to those who have been trying for an appointment the longest — but there is a large element of random selection, too. Those who are selected are given an appointment time 13 days in advance, at a port of entry. Those who aren’t selected have to register the next day and try again.
Under a regulation finalized May 10 by the Department of Homeland Security, people who have preregistered for appointments at ports — in other words, those who use the lottery — are the only ones who are allowed to seek asylum without facing other process hurdles. Everyone else has to meet a far higher standard to be allowed to file a full asylum application and face an immigration judge.
That includes both people who cross between ports of entry — committing the federal crime of unlawful entry — and people who present themselves at ports of entry to ask for asylum but lack an appointment. The latter are not committing any federal crime. But under the regulation, unless they can demonstrate that they were persistently unable to use the CBP One app — and not speaking one of the three languages currently offered by the app isn’t enough to meet that standard — they are presumed ineligible for asylum. The only way for an adult, or family, to avoid that presumption entirely is the lottery.
As arbitrary as this is, people who work with asylum seekers on both sides of the border see it as less arbitrary than the first-come-first-served appointment system that was in place for the first few months of this year. That system led to a mad dash every 24 hours as people used everything from clicker apps to cartel-rented phones to grab one of the few hundred available slots. The Biden administration has now both expanded the number of appointments available — about 1,000 per day, across the border — and instituted the lottery system, which gives people 23 hours to register and an additional 23 to confirm their booking if selected.
If those 1,000 appointments are filled every day, the lottery will represent the federal government’s biggest commitment to date to processing asylum seekers without forcing them to break the law first. If you assume that the share of “inadmissibles” — people who arrive at a port of entry without valid papers — who are asylum seekers has remained constant over time, the Obama administration, at its peak, processed around 500 a day. And under the Trump administration, even as people who entered between ports of entry were subject to ever-escalating penalties, an official policy of “queue management” limited the number of people who were given physical access to the port, thus preventing them from setting foot on U.S. soil and invoking their asylum rights (or, in some cases, physically pushing them off U.S. soil in order to prevent them from doing so).
But the increase is still inadequate in the face of the number of people trying to come. The desire to comply with U.S. law doesn’t keep someone safe and fed in northern Mexico indefinitely, and as frustrations rose with the first-come-first-served system this spring, so did tensions in border towns.
Some immigration hawks see processing asylum seekers at ports as “pre-legalization,” because they see asylum seekers without papers as “illegal” no matter how they come. But for anyone who says that people should simply “seek asylum legally” — or anyone concerned with Border Patrol agents being diverted from anti-trafficking operations to do immigration-court paperwork — there’s a clear common-sense distinction between presenting oneself at an official border crossing, to be fingerprinted and checked as any other traveler entering the United States, and entering without detection.
Increasing port capacity is a genuinely thorny problem. Customs and Border Protection officers have to screen both vehicles and people to identify illegal smuggling, customs issues and immigration violations — and they have to do it efficiently enough that the $1.8 billion-a-day U.S.-Mexico cross-border trade isn’t disrupted. It takes people, and it takes physical space. Both cost money.
The Biden administration’s increase in appointments indicates that it has built up capacity to some extent. A proposal from Senator Dick Durbin to fund border infrastructure, which includes $51 million to hire permanent staff members at ports of entry, would help.
But imagine a world in which the thousands of military and civilian personnel that were mustered to the border in anticipation of a “surge” of illegal crossings — a surge that didn’t materialize — were instead mobilized to meet the people who we already know are waiting for their chance to follow the law.
Dara Lind is a senior fellow at the American Immigration Council.
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