On a recent gray morning, a group of Haitian migrants chatted idly on a quiet corner in downtown Tijuana, near the U.S. border, speaking French and eating Creole and exchanging cellphone chargers to use later in a nearby Starbucks.
Among them was Rene Raphael, a 28-year-old former medical student.
Like most of the roughly 4,000 Haitians now staying in shelters in Tijuana, Raphael has spent the past few years as a nomad. First, he fled Haiti, which suffered a devastating earthquake in 2010, for Brazil, where the country’s pre-Olympic construction boom provided work. When the Rio Games ended last summer, and when Brazil’s economy cratered, Raphael and his pregnant wife made a harrowing, two-continent trek north to the U.S. Mexico border.
Their goal? Asylum.
Their hurdle? President Donald Trump.
Legal or loophole?
Little noticed in his flurry of immigration-related executive orders, Trump has pushed to change the way the United States handles asylum, an international designation that’s become trendy of late among people trying to enter the United States.
Traditionally, asylum is granted (or not) to people who fear they’ll be persecuted in their home country because of race or politics or religion. Also, by tradition, many asylum seekers in the United States have landed in Southern California, particularly in Los Angeles and Orange counties, according to immigration experts.
But over the past two years, the asylum process has changed. Instead of a rarely used invocation for help, it’s become a term tossed out by thousands of would-be Americans every month.
Last year, U.S. Citizenship and Immigration Services, which deals with asylum claims, handled 94,048 cases, nearly double the 48,042 cases the agency handled in 2015 and more than 16 times the 5,523 cases in 2009.
Trump is moving to end that. In the same executive order that calls for building a wall along the U.S./Mexico border, Trump also declared his intent to make it possible for asylum claims to be handled at the border, changing a process that’s led to a few thousand new undocumented immigrants.
Critics say Trump’s plans on asylum upend international norms, which include fair hearings for people seeking asylum. Supporters say it closes a loophole that’s been abused.
Border agents, many of whom support the new rules, say Trump’s quick-hit plan has turned an already hectic border entry into something closer to pure chaos.
Joining the normal wave of Mexicans and South Americans gathering at the border to cross into the United States, legally or otherwise, there are now people who claim to be from Nepal, China, Ghana, and, like Raphael, from Haiti.
Rather than jumping the border fence or dodging immigration agents, many of these migrants are simply turning themselves over to border officials in the hopes of declaring asylum in the U.S.
Their arrival has overwhelmed American immigration officials, and presented new security issues at the same time that the Trump administration is attempting to beef up all forms of enforcement along the U.S.-Mexico border.
“The challenges that we’re facing now, with respect to the flow of people crossing the border, are very different from the challenges that we’ve faced in the past,” said David Aguilar, a former acting commissioner of U.S. Customs and Border Patrol who served under presidents George W. Bush and Barack Obama.
“Asylum seekers have very different needs,” he said. “The requirements for dealing with them are different, and therefore the workload is different.”
And every seeker’s story is personal.
Though Raphael’s wife eventually gained entry to stay with relatives in Miami, Raphael remains in Tijuana, like thousands of others at the border, in limbo.
“To tell you the truth, I don’t know what I’m doing here,” Raphael said. “I don’t have a future in Mexico. I have nothing, I don’t have a job – I just stay alone, watching TV, buying food.”
Chaotic system
Even before Trump issued his executive orders on immigration enforcement, the flood of asylum seekers was straining resources at the border in Tijuana. The result, according to migrant lawyers and advocates, is a system rife with abuses.
“The procedures, the policies have changed almost every other week,” said Father Patrick Murphy, who runs the Casa del Migrante Tijuana, a shelter that has housed more than 2,000 asylum seekers since last May.
“You try to adapt, to set things up, and then boom, the policy changes again. So it’s been a challenging nine months.”
At the border crossing between Tijuana and San Diego, where Border Patrol agents are equipped to process about 100 asylum cases each day, U.S. immigration officials responded to the flood of asylum seekers last spring by referring the new arrivals to Mexican authorities, who would schedule appointments with border agents. But Mexican immigration agents were ill-equipped to handle the influx, and often turned people down – something they’re forbidden to do under international law – according to migrant advocates.
A complaint filed with the Department of Homeland Security last month by immigration rights groups protests what they claim has been a “systemic denial of entry to asylum seekers” at southern border crossings, including the San Ysidro port of entry near San Diego.
“The main problem here is that (Border Patrol) has zero authority to make determinations about who gets to enter asylum proceedings,” said Ian Philobaum of the Innovation Law Lab, which works with immigration lawyers.
“But border agents are telling people that they can’t apply for asylum, that they have to go back to the Mexican authorities.”
With Trump in office, Philobaum said, migrant advocates fear that border agents will be further emboldened to turn away asylum seekers and push them to return to Mexico, regardless of their country of origin.
Border officials says the agency’s policies on asylum have not changed. But it is clear that the influx in asylum seekers has strained the U.S. immigration system, stretching the resources of border patrol agents, asylum officers, immigration court judges and detention facilities run by Immigration and Customs Enforcement (ICE).
Unlike migrants who are caught crossing the border illegally, those who claim that they fear returning to their home countries are, by law, afforded an interview with immigration officials, who determine if that fear is enough to warrant asylum in the U.S.
If a migrant’s fear is deemed “credible,” his or her case then makes it way through U.S. immigration courts, a process that can take as long as three years.
In recent years, that process has become swamped.
“It is a tremendous workload increase that takes away from enforcement efforts,” said Aguilar, who now works as a principal for the Washington, D.C.-based security firm Global Security Innovation Strategies. “The whole system gets impacted.”
As asylum claims are processed, migrants are detained by border agents in detention centers run by Immigration and Customs Enforcement. But because of the overwhelming number of claims, many are being turned out on parole, a practice that critics argue encourages other migrants to declare asylum.
“Right now, the system is not working efficiently because it is so overwhelmed,” Aguilar said.
“And unfortunately that creates an even greater draw for people seeking asylum, and an even greater flow of people at the border.”
Cracking down
Trump has promised to crack down on what he terms “asylum fraud,” part of his broad plans to stem both illegal and legal immigration into the U.S.
His executive order calls on the Department of Homeland Security to build new detention centers along the border, and to relocate asylum officers and immigration judges to those facilities to speed up the processing of asylum claims.
The order also directs the agency to review its policies for granting “credible fear” interviews and asylum claims. Many believe this suggests the administration will take a narrow view of what qualifies migrants for asylum.
Proponents of stricter immigration enforcement welcome that.
“The order focuses a lot of attention on the broken border process, and it goes way beyond the wall,” said Dan Cadman, a policy fellow at the Center for Immigration Studies, a Washington think tank that supports restricting immigration.
“This is setting up multiple defenses to (reduce) the lure of declaring asylum at the border,” Cadman added. “It returns the asylum and refugee process back to what it was meant to be, which is a benefit of last resort.”
Some of the policies outlined in the executive order – including the construction of additional detention facilities and the hiring of new immigration judges – will take time to implement and require funding from Congress.
Already, though, border patrol agents have noticed a shift in the way the agency operates, including how it handles those seeking asylum, said Christopher Harris, legislative and political action coordinator for the National Border Patrol Council Local 1613, the union that represents border patrol agents in San Diego.
Harris declined to provide details on any specific policy changes the agency has implemented, but he said that morale among agents has increased since Trump signed the executive orders on immigration last month.
“Before, we were just letting people go,” he said. “Now, that’s changing, and it’s changing for the better. People have hope that the system will run the way it’s meant to be run.”
Immigration advocates concur that additional resources are needed to process asylum claims at the border. But they also worry that quicker processing of asylum claims, combined with a narrower view of what qualifies migrants to gain asylum, could result in asylum seekers being denied access to due process.
“Expedited processing is good, in the sense that it makes the process more efficient. But it could also dramatically reduce the chances that an individual will actually win asylum,” said Faye Hipsman, a policy analyst and California program director at the Migration Policy Institute.
And in the absence of concrete policy changes – and additional resources for asylum officers and immigration judges – lawyers fear that border patrol agents will take it upon themselves to interpret Trump’s executive order.
“There’s a lack of guidance and clarity in between policy and implementation” of the executive orders, said Royce Murray, policy director at the American Immigration Council. “Given the combination of that ambiguity and the sentiment conveyed in the executive orders, it makes sense that the situation at the border will be more chaotic.”
“It could be a free-for-all,” he added.
In the meantime, migrants continue to arrive in Tijuana.
According to Murphy, a group of immigrants, mostly from North Africa, recently appeared at the Casa del Migrante shelter.
“I think this is just the beginning,” he said.
“I joke that they came here for the American dream, but they might have to settle for the Mexican dream.”
