Messy Numbers in Asylum Ban Ruling Add Confusion, Reflect Deeper Questions about Migrant Protection and the Use of Data in Law

The Biden administration’s Circumvention of Lawful Pathways (CLP) policy was struck down this week by Judge Tigar in the Northern District of California. This policy, characterized by many as an “asylum ban”, layered on restrictions to seeking asylum that the judge found to contradict Congress’s clear intent of the law. I discussed the most essential point of this ruling earlier this week.

Today I want to discuss what might appear, at first glance, to be a marginal point in Judge Tigar’s ruling about whether migrants have access to asylum in other Latin American countries. This post specifically concerns how Tigar uses data to make the case that migrants do not have access to asylum in places like the small coastal country of Belize. But as I hope to show, Tigar introduces what I think is a fair amount of confusion, confusion that does not originate with him but is symptomatic of a much larger and thornier question of how we think about and evaluate access to asylum.

A short reminder of what we’re talking about. The Biden administration’s Circumvention of Lawful Pathways (CLP), like the Trump administration’s nearly identical policy before it, incorporated new exclusions for migrants who pass through third countries or “transit countries” (i.e., not their home country and not the United States) without requesting asylum there first. This is the “transit ban” part of the policy.

The underlying principle of this part of the policy is not all that complex, nor is it unique to the United States. To put it succinctly, if migrants are seeking protection, they should do so in the first safe place they arrive rather than go somewhere they prefer. I’m not entirely unsympathetic to a certain good-faith version of this principle. I believe, for instance, that Mexico should have a functioning asylum and refugee system and I do believe that no one country will ever be able to provide adequate asylum protections alone. 

One problem with this principle, however, is that it is usually applied selectively as a way of offloading responsibility for asylum seekers onto less-well-off countries close to zones of geopolitical, economic, and environmental instability. The data on which nations are hosting refugees already clearly show that countries near zones of conflict host far more refugees relative to their population than countries in the Global North. See my previous discussion of this below.¹

Refugees Make Up Less than Half a Percent of US Population, 54th in the World

Another problem with this principle is that it also raises a thorny question of how we know which countries have meaningful access to asylum. Determining which countries have access to asylum (as an empirical matter) and which countries should be pressured to expand their access to asylum (as a policy matter) is not entirely straightforward. Moreover, governments have an incentive to represent countries as safe (regardless of the facts on the ground) while immigrant rights and human rights advocates typically have a lower threshold of acceptability when determining the safety of a country. 

With that in mind, let’s return to Judge Tigar’s decision. DHS’s original rule mentions Belize as one of the countries that have provided or expanded some kinds of asylum and refugee programs. This claim is part of DHS’s argument to say, “Look, countries in the region are getting better, so migrants can go there to request asylum, too.” Hence the additional hurdle for migrants who transit through countries without stopping. 

Photo by Ricardo Viana on Unsplash

Tigar doesn’t buy this argument. He says, “Seeking protection in a transit country is … infeasible for many asylum seekers subject to the [CLP] Rule” (p.25, see my previous post for a copy of the ruling). Since the DHS only mentions Belize, Mexico, and Colombia specifically, the judge only comments on those countries. (It seems to me that DHS was using these as illustrative examples rather than a conclusive list, but anyway.) 

Tigar singles out Belize in particular and makes the following observation to support his rationale. He says, “Belize has a limited asylum system: the country has only ever received 4,104 applications for asylum and granted just 74 of those applications.” He also says that Colombia’s asylum system has limited capacity and a significant backlog.“ And for Mexico, he says, ”Mexico’s refugee agency is underfunded and unable to keep up with demand“, noting that ”the agency’s new budget ‘was not commensurate with the growth in refugee claims’“ and is ”in a situation of near-breakdown."

Okay, that’s a lot. But let’s parse it, starting with Belize.

The judge says that Belize has received a total of 4,104 asylum applications and denied all but 74 of them (a 1.8% grant rate). The judge describes this as contributing to the record that Belize is “not a viable option for many migrants”, but the logical connection between the fact and the claim is quite tenuous. If Belize has received so few asylum applications, one could just as well argue that it is more capable of, and also more responsible for, accepting more applications, not less. 

Moreover, I simply do not find the use of data in the judge’s decision to be all that robust. According to the UNHCR, Belize received just 148 asylum applications in 2022. I don’t know how many asylum cases are still pending in Belize, but let’s assume for the sake of comparison that all 148 cases are still pending. Since we are thinking about the principle of shared responsibility, let’s be sure to put these numbers in a fair comparative context. For a country of 400,000 people, this comes out to 37 pending asylum applications per 100,000 residents.²

By contrast, there are roughly 1.5 million pending asylum cases in the United States right now if you count affirmative cases at USCIS and defensive cases in the immigration courts. The United States has about 330 million people. This means there are currently about 455 pending asylum cases per 100,000 residents in the United States. That’s more than 12 times the rate of Belize. You might disagree, but I certainly think that this kind of apples-to-apples comparison is needed when comparing two systems so that we can make sense of what the numbers mean.

This context doesn’t undermine the judge’s logic, however, because Tigar seems to say that having fewer asylum cases is an indication of an infeasible asylum system. So let’s look at Colombia. Colombia, the judge says, “has a limited asylum system and a significant backlog.” I have no idea if this is true or not, but let’s suppose it is. In the case of Colombia, therefore, having more cases seems to be an indication of infeasibility. Again, by comparison, the United States similarly has an enormous backlog of 1.5 million asylum cases while the courts alone have 2.4 million total pending cases, both of which are factors that actually support, rather than challenge, the Biden administration’s position.

Finally, there’s Mexico. Mexico’s system is apparently “underfunded” and “near-breakdown”, both claims that immigrant rights advocates have said about the U.S. system. In fact, just recently the Migration Policy Institute (MPI) held a robust discussion about the “immigration courts in crisis” that followed a report titled “At the Breaking Point.” The report, among many other things, emphasizes the comparatively small increase in the immigration court’s budget relative to enforcement agencies. So it’s not clear to me how “underfunding” and “near-breakdown” provide any indication of whether the asylum system in a given country is robust in either relative or absolute terms. 

I want to be clear that I’m not taking a position on, nor am I qualified to take a position on, the robustness of Belize’s or Colombia’s or Mexico’s asylum systems. It’s altogether likely that the larger point of their inadequacy is accurate, and that DHS is presenting an overly rosy picture of these systems in order to justify restrictive policies.

From my reading, the first part of Tigar’s decision, in which he establishes the unlawfulness of imposing artificial restrictions on asylum seekers at the border over and above what Congress clearly said, is cogent and straightforward. The second part of Tigar’s decision, however, seems to struggle with internal inconsistencies and an inadequate contextualization of data, even if the overall conclusion is ultimately defensible. To his credit, Judge Tigar cites numerous reports about violence, including gender-based violence, which contradict the government’s argument that Mexico and other countries are safe for migrants. I’m focusing on the quantitative arguments in the decision, but he does provide other evidence, too.

I was happy to see Tigar reference these data, but the way the data are used is not adequate–no more or less adequate than how DHS uses the data, let’s be clear! Tigar’s decision is not intentionally misleading, that’s not at all what I’m suggesting; it’s just more confusing than clarifying. And the confusion could have real consequences because there is no meaningful distinction (as far as I can tell) in the text of his decision between the problems with asylum systems in Latin America and the asylum system in the United States. In fact, most of the judge’s logic precisely mirrors DHS’s underlying arguments for imposing new restrictions to asylum. 

I don’t know how this is going to play out legally. But I do feel strongly that the court really hasn’t addressed some of the most important questions in the case related to whether asylum seekers can meaningfully access asylum elsewhere, and in some important ways, the use of data in the decision adds confusion. But that confusion doesn’t really come from Judge Tigar, it also reflects both DHS’s motivated reasoning as well as more generalized questions about how to evaluate access to asylum in Latin America in ways that advance migrant protection rather than simply provide cover for restrictive U.S. policies.

I will be curious to see if and how these questions remerge going forward, and curious to hear from you about whether you agree with this reading or whether I’ve overlooked something. Let me know what you think below.

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1. One of the exciting things about approaching my 200th post (!!!) in this newsletter is that if you’re looking for more information about a topic from one post, I’ve often covered it elsewhere — and when I have, I link to it, sort of like our own little immigration Wikipedia. This is also a great reason to subscribe, by the way.

2. You might be thinking (and quite rightly) that the comparison above between the U.S. and a country like Belize is not exactly a fair one. Belize was literally a colony of the British empire until 1981, for Pete's sake, and has an extraordinarily high rate of poverty. If you believe, as I do, that colonized nations and nations with severe poverty do not bear anywhere near the same responsibility for the global drivers of migration (such as colonialism, capitalism, and climate change), then we can agree that the numbers above aren’t really the point: an ethics of responsibility is truly the point. For both its historical role in the hemisphere as well as its relative privilege, the U.S. bears a higher responsibility regardless of backlogs and grant rates and all that. This argument certainly takes into account historical relations of power as the basis for conceptualizing humanitarian responsibility, but this argument is not on the table and probably never will be. So we're stuck with a challenging epistemological question about how to articulate defensible claims about the relative security of asylum seekers in court where the types of claims that can be made are already artificially and systematically curtailed to begin with.