Along the U.S. border with Mexico, they multiply by the day: immigrant children from Mexico and Central America, many separated from the families that brought them here. According to the Associated Press, in March, the number of unaccompanied children at the border reached 19,000, with many being detained in hundreds of overcrowded migrant detention centers, military bases and converted jail facilities in states like Texas and California.
The situation became so dire that President Joe Biden deployed representatives from the Federal Emergency Management Agency (FEMA) to the border to assist with the overcrowded conditions. Unraveling this issue has already been one of the more difficult challenges of the new president’s administration, and it seems likely to get worse before it improves.
None of this is surprising to Jenna Loyd, a professor of geography who studies the politics and social effects of U.S migration policies. She has seen this scenario play out countless times, not just with asylum seekers on the United States’ southern border, but also with those from countries like Haiti, Cuba, Iraq, and Iran. She wrote about the topic in Boats, Borders and Bases: Race, the Cold War and Rise of Migration Detention in the United States, the 2018 book she co-authored with Alison Mountz, a professor at Wilfrid Laurier University in Waterloo, Ontario. The problem, she says, is part and parcel of the current policy.
“Children are not supposed to be held at jail-like areas, or, for that matter, by Homeland Security,” Loyd says. “The charge for the Office of Refugee Resettlement is to reunite the children with their family members, but the system has become a system of detention. Rather than processing asylum claims quickly or using the mechanism of temporary humanitarian status to manage the situation, the default response has become detention.”
The terms “refugee” and “asylum-seeker” tend to get conflated in discussions about border issues. While anyone has the right to ask for legal asylum under international law, those seeking asylum in the United States must ask for it either while in the United States or at the border, and there’s a different process involved.
As Loyd explains, detention-first is a recent development. The concept of “asylum seeker” was defined in U.S. law for the first time in the 1980 Refugee Act to mean individuals who faced threats of violence and/or political and personal persecution if they returned to their country of origin.
But beginning in 1980, the United States has sought to put up roadblocks to individuals who asked for asylum, including detaining them while their requests were evaluated—largely in response to critics who viewed asylum as an end run around the legal immigration process. This was especially true of asylum-seekers coming from countries that were viewed as U.S. allies, as granting asylum to these individuals could raise uncomfortable questions about U.S. foreign policies. For instance, Loyd points out, asylum seekers fleeing the Communist regime in Cuba were more likely to be welcomed than those fleeing Haiti.
“The fact that detention became a part of deterrence in 1980 is a big deal,” says Loyd. “The harmful nature of detention is thought of as a deterrent to people seeking asylum. It’s a form of incarceration.”
Political crises and wars in several countries have led to increases in refugees and asylum seekers from those countries. In the last decade, the problem of a large detention system has only grown. In its early months, the Biden Administration has struggled to implement a speedy solution to resolve the ever-growing numbers of would-be asylum seekers being detained.
Experts like Loyd are pondering solutions to the problem. Loyd believes that increasing the number of asylum agents (individuals who can help refugees work on their cases) could help to reduce the number of refugees in detention centers. She would also like to see migrant laws changed to allow asylum seekers the right to an attorney. Not surprisingly, immigrants with access to legal advice tend to navigate the system more smoothly. And finally, she believes the formation of an asylum-focused judiciary independent from the Department of Justice or the executive branch is critical.
“The executive branch can determine a lot of what takes place in this process,” says Loyd. “Creating an independent judiciary would make a lot of sense.”
Loyd knows that the answer will not be a simple one, but she remains hopeful.
“Seeking asylum is a right that governments should uphold rather than trying to prevent it through detention and arrangements with other countries,” she says. “Resolving migration crises will also mean reckoning with foreign and economic policy decisions that have contributed to wars, displacement and economic dislocation. The bottom line is that these policies have had grave impacts on people.”