Biden’s ‘Summit of the Americas’ commitments on immigration more show than substance

Former President Bill Clinton established the Summit of the Americas in 1994, to bring all of the countries in the Western Hemisphere — except Cuba — together for discussions on trade, immigration, and democracy. President Joe Biden hosted the event this year. 

The participants recorded their immigration agreements in the Los Angeles Declaration on Migration and Protection. It represents a regional partnership to address historic migration flows affecting most of the countries in the region. 

The declaration was signed by 20 countries in the region that are committed to protecting the safety and dignity of all migrants, refugees, and asylum seekers, and respecting their human rights and fundamental freedoms. They intend to cooperate to facilitate safe, orderly, humane, and regular migration, consistent with national legislation, the principle of non-refoulement, and their respective obligations under international law.

But will they keep their commitments?

The last line in the declaration acknowledges that its commitments are not legally binding.

Yael Schacher, deputy director of Refugees International, says, “summits have traditionally been a parade of promises that are never fulfilled.”

According to Georgetown Law immigration professor, Paul Schmidt, the declaration is just “more empty rhetoric.”

Highlights

International financial assistance may be needed by the countries the migrants come from and the countries that host large numbers of them after they have left their own countries.

A fact sheet summarizes financial contribution commitments. For instance, the United States commits to making a contribution of an additional $25 million to the Global Concessional Financing Facility, which assists Latin American countries with programs for providing refuge to displaced migrant and refugee populations.

The United States also commits to contributing $314 million in additional funding for humanitarian and development assistance for refugees and other vulnerable migrants.

The United States will establish a $65 million pilot program to support U.S. farmers hiring temporary agricultural workers under the H-2A program.

And the United States commits to expanding its efforts to address the root causes of irregular migration throughout the hemisphere. The Biden administration previously had proposed allocating $4 billion to Central America over four years, including $860.6 million in fiscal 2022.

Canada commits to investing $26.9 million in additional funding for migration-and protection-related capacity in the Americas.

The declaration also commits to conducting migrant removals in a manner that is consistent with international human rights and refugee laws, that provides safeguards to prevent refoulement, and that promotes the return of children to safe conditions.

It commits to providing coordinated emergency and humanitarian assistance in situations of mass migration and refugee movements. This includes information sharing, enhancing early warning systems, and defining a set of triggers that will activate a coordinated response.

The declarants say they will work together to improve access to public and private services for all migrants, refugees, and stateless persons — and to expand access to regular pathways for migrants and refugees.

The United States also promises to resettle 20,000 refugees from the Americas during fiscal 2023 and 2024, and to continue a process begun in May to expedite the processing of asylum applications from migrants who establish a credible fear of persecution in expedited removal proceedings.

Problems

According to Schmidt, “[i]f you ‘add up’ all of the numbers and commitments from all the countries contained in the ‘Fact Sheet,’ it wouldn’t even come close to solving the current flow at our Southern Border, let alone make a dent in the Hemisphere-wide movement of individuals.”

Schmidt, a former immigration judge at the U.S. Immigration Court in Arlington, Va., acknowledges that dealing with “root causes” is a great idea — but he observes that many of the sending countries, such as El Salvador, Guatemala, Honduras, Haiti, and Venezuela, are functionally failed states. The elimination of root causes in these countries could take decades.

Theresa Cardinal Brown, at the Bipartisan Policy Center, has observed that, “Our immigration systems are already overtaxed and overburdened — everything from border operations, asylum and legal visa adjudications, to immigration courts, to visa offices abroad, all have serious, record-level backlogs and no end in sight.”

This is particularly true of our system for processing asylum applications. Biden is addressing this problem with a new asylum process that assigns asylum applications to USCIS asylum officers to be adjudicated in non-adversarial interviews instead of by immigration judges in adversarial removal proceedings. It is not apparent how USCIS will be able to handle this new responsibility. USCIS Ombudsman Phyllis Coven says that USCIS has a backlog of nearly 5.2 million cases and 8.5 million pending cases that are not in the backlog yet because they aren’t ready for adjudication — but they will be added to the backlog when they are ready.

USCIS is struggling to hire more staff, but it takes time to find, hire, process, and train the people they need. In fiscal 2020, the average time to get a new hire ready for adjudications was 97 to 118 days.

Leaving these cases with the immigration court isn’t a solution either. As of the end of May, it had a backlog of more than 1.8 million cases. The average wait for a hearing was 840 days.

Lastly, the Title 42 order will be terminated eventually, which is expected to greatly increase the number of asylum seekers.

Unintended consequences

The commitments in the declaration are focused primarily on providing care and assistance for asylum seekers as opposed to discouraging applicants who do not have legitimate persecution claims. This may have the unintended consequence of encouraging more migrants to come with applications that are going to be denied, and the success rate for asylum applications is low already. 

In fiscal 2021, the immigration court only granted 7,359 asylum applications (16.01 percent).

How many asylum seekers will remain in the United States indefinitely without ever having an opportunity to have their applications adjudicated, either by an immigration judge or an asylum officer? 

Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow him at https://www.blogger.com/blog/posts/2306123393080132994