ABA Releases Primer on Immigration Enforcement at the Border

WASHINGTON — Despite the inflammatory rhetoric of some lawmakers and the media reports that often parrot it, the surge of asylum seekers at the southern border of the U.S. is not a “security threat,” but instead an understandable flow of refugees that must be addressed as such.

That’s the conclusion of the American Bar Association Commission on Immigration which on Wednesday released a “primer” on immigration enforcement at the U.S. border.

In recent years, the primer’s introduction notes, “the discourse surrounding the southern border has focused on the large numbers of individuals seeking to enter the United States without documentation (either at a port of entry or by evading inspection), often with the intention of seeking asylum.

“Unfortunately, the rhetoric has suggested that increased numbers of asylum seekers at the southern border represent a crisis and … border policies have largely focused on expedited removal practices and exclusion from the United States,” it continues.

The 28-page handbook explains the various methods used by the federal government to enforce immigration law at the U.S. southern border, with links to applicable laws, policies, court decisions and recent developments.

It includes a review of current policies, such as Title 42, credible fear interviews and the family group dedicated docket, as well as prior enforcement policies, such as metering, the third country asylum rule and Remain in Mexico (the Migrant Protection Protocols). 

The ABA said the reference book will be updated throughout the year, as policy changes and changing realities at the border dictate.

Driving the creation of the manual is the organization’s belief that “it is important for practitioners and the public alike to understand the various border enforcement mechanisms developed in recent years since they impact the legal trajectory for migrants arriving at the southern border, especially asylum seekers.”

According to the Department of Homeland Security, in fiscal year 2022, Customs and Border Protection personnel had over 2 million “encounters” with migrants at or near the U.S.-Mexico border who lacked entry documents.

In the preceding year, FY 2021, there were 1,734,686 border encounters, the department said.

But the ABA notes the number of recent border encounters are far from unprecedented. 

In fact, 20 years ago, in FY 2000, there were 1,676,438 apprehensions, and the ABA’s Commission on Immigration believes that number significantly underestimates the actual number of border crossers because apprehension rates were much lower at the time. 

Customs and Border Protection estimates that more than 2 million individuals crossed the border undetected that same year.

“There are other important elements that put the recently reported numbers of border arrivals into context,” the primer says. “As noted above, a much greater proportion of arrivals are detected and apprehended now so the reported numbers are unsurprisingly larger than they were several decades ago. 

“In addition, the government statistics now include arrivals at ports of entry, which were not included in prior statistics,” it continues. “Furthermore, restrictions on visa issuance and airline travel to the United States, particularly since 1997, have forced asylum seekers to arrive at the southern border to seek entry by land. 

“Recent data also suggests that Title 42 expulsions, a more recent enforcement mechanism purportedly implemented to control the spread of COVID-19, have led to repeat encounters of the same individuals in the last year,” the report says. 

“In other words, the actual numbers of individuals arriving at the border are likely much lower than the government-provided statistics on ‘encounters’ and may even represent fewer arrivals than several decades ago,” it adds.

Even if this is so, the commission, and specifically members Denise Gilman, Melissa Crow and Deena Sharuk, who made major contributions to the primer, said it is important that the nation recognize that worldwide migration is on the rise in the 21st century.

“The United States cannot isolate itself from these trends,” the report says. “And given these patterns, large-scale arrivals at the U.S. southern border are to be expected and should be anticipated, planned for, and managed humanely.”

The authors of the primer go on to note that the demographics of those arriving at the southern border in recent years belie the security threat rhetoric.

“Many are asylum-seeking adults, children and families fleeing countries where pervasive human rights abuses are taking place,” the primer says. “Of the encounters in 2021, 454,817 were with family members traveling together, 128,846 were unaccompanied migrant children, and 129,065 were migrant children accompanied by an adult.

“Significant numbers of migrants arrived from the Northern Triangle — specifically El Salvador, Guatemala and Honduras, which the United States has recognized as an exceptionally dangerous region,” it continues. “Increased numbers of migrants are also arriving from Cuba, Haiti, Nicaragua, and Venezuela, where political and economic instability prevail and the human rights situations are recognized as dire.”

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