March 2023

Marshall Fitz
7 min readApr 3, 2023

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Once again, this month brought into sharp relief the tragic human costs of our broken immigration system: at least 39 migrants died in a fire at an immigrant detention facility on the Mexican side of the U.S.-Mexico border, while historic numbers of people are forced to traverse deadly routes in search of humanitarian protection. The brazenly heartless response by congressional Republicans who have demonized migrants and weaponized border challenges for political gain highlights how far we are from legislative solutions. Against that backdrop, our colleagues have provided a roadmap of administrative policy recommendations that should be adopted while Congress dithers. More on that and other developments in this month’s update.

More migrants are on the move — and dying — than ever, while the U.S. and Canada make it harder to seek asylum

As highlighted in our October 2022 update, last year saw record levels of human displacement across the globe. Unfortunately, but unsurprisingly, the various and overlapping forces driving people to move — from climate change to food and economic insecurity to armed conflict to political instability — have not abated. Nowhere is this acceleration more painfully evidenced than the rising numbers of migrants crossing the notoriously treacherous Darien Gap.

Linking Colombia and Panama, the Darien Gap was once considered a no man’s land, a nearly impenetrable, deadly jungle 100 miles long and 30 miles wide that deterred “over-land” migration from South to Central America. In 2019, around 24,000 desperate migrants from over 50 nationalities traveled this route. Last year, a record of nearly 250,000 people made the dangerous journey, more than the prior 10 years combined. Unfortunately, that record will be shattered once again this year: in just the first three months of 2023, more than 86,000 migrants have already made that journey, six times more than in the same three-month period in 2022. Desperation, hopelessness, and the absence of legal migration pathways have caused a fundamental breach in this once impassable barrier.

Darién, Panama. Credit: Harvey Barrison. Creative Commons License. Flickr

Unfortunately, the harrowing journey for many migrants does not end once the Darien Gap recedes. The majority of people who brave the Darien are en route to the U.S., meaning many of them will face another perilous crossing when they reach the U.S.-Mexico border. The bodies of more than 890 migrants, a record number, were recovered by U.S. authorities along the border in the 2022 fiscal year that ended Sept. 30, a 58% increase over 2021.

The Biden administration has initiated efforts to address some of the root causes for these historic flows with innovative solutions. Those long-term initiatives are critical but will not alter the migration flows in the near term. Indeed, the number of people on the move throughout the hemisphere has reached such a level that some of the humanitarian challenges have spilled over to our northern border with Canada.

While seemingly trivial compared to the pressures at our southern border, asylum seekers have been crossing both directions between Canada and the U.S., leading the two countries to amend their 2004 Safe Third Country Act (STCA) to allow both countries to turn away asylum seekers. The original agreement required migrants to make an asylum claim in the first “safe” country they reached, whether it is the U.S. or Canada, and it allowed either nation to turn migrants away at official points of entry — but not at unofficial crossing points, like Roxham Road. The agreement announced on March 24 by President Biden and Canadian Prime Minister Justin Trudeau eliminates that distinction, extending the treaty to include the entire border, including internal waterways. As part of the deal, Canada has agreed to welcome 15,000 refugees from the Western Hemisphere.

There are no silver bullet solutions. Short term bilateral strategies to deter migrants and asylum seekers may — or may not — alleviate domestic political pressure. But we know they deny agency, subvert the guarantee of humanitarian protection, and are ineffective since they only push people to more dangerous routes. During this time of historic human displacement, we need innovative, collaborative migration management strategies to spur a paradigm shift, not nativist retrenchment that treats migrants as a threat.

Managing migration in a safe, orderly way presents a powerful economic opportunity — the only real question is whether we will seize it or cling to politically driven, self-defeating policies.

Proposed asylum regulation faces strong principled and practical headwinds

The 30-day public comment period for the Biden administration’s proposed asylum regulation closed on March 27. We highlighted in our February 2023 update our concerns that the rule as drafted will effectively bar most people from applying for asylum at our southern border. Over the past month, the chorus of opposition to the rule has extended to include members of Congress, multilateral international organizations, and civil society organizations from across the spectrum.

Notably, serious concern has also emerged from the region where the impacts of the rule would be most acutely felt. In fact, former heads of state whose countries have been critical to managing migration throughout the hemisphere have articulated deep reservations: Climate Migration Council member and former President of Costa Rica Carlos Alvarado Quesada says he is “deeply troubled” by the proposal and former President of Colombia Juan Manuel Santos says that “a historic opportunity to better manage migration in the Western Hemisphere may be slipping away.”

The government’s primary defense of these proposed restrictions on access to asylum is that a mobile app will allow migrants to schedule appointments to apply for asylum at a port of entry. Attempts to establish a safe, legal, orderly process for people to seek protection is a worthy one, but effective and meaningful access — and in turn real safety — cannot be sacrificed at the altar of orderly processing. The CBP One app, and the operational infrastructure behind it, fundamentally fails that test.

The app, which has been available for people seeking appointments to apply for exemptions to the ongoing Title 42 border restrictions was expanded to cover asylum seekers in January and has already shown profound technical and operational limitations, including: appointments that fill up within minutes each day, treating family members separately instead of as a unit, and the app’s facial-capture feature having difficulty recognizing people with darker skin who attempt to submit required photos. Accessibility challenges based on smartphone and WiFi availability, in addition to language barriers, continue to persist. Moreover, and crucially, while CBP insists that the app streamlines the experience, may reduce wait times, and permits a safe and orderly process, it actually encourages migrants from across the region to travel to Mexico, putting them at risk of smuggling, because the app can only be accessed in Northern Mexico.

Technological innovation will be imperative as we seek to build a safe, legal, orderly system for managing migration and the border. To advance that objective, however, such technologies obviously must be functional and reliable. Of course, they also must be deployed in service of policies that reinforce our moral and legal obligations to guarantee access to international protection for those who qualify. And they must be backstopped by operational and system infrastructure that guarantees the policies will be implemented as designed. As currently designed and deployed, the CBP One app fails on each of these fronts.

The tragedy of a failed system where desperate people are thrust into confusing, precarious situations was on crushing display on the night of March 27. The fire that erupted at an immigration detention center in Ciudad Juarez, just across the border from El Paso, left 39 people dead and 27 in critical condition. The cause of the fire, the criminally negligent response of the officials, and the circumstances behind the migrants’ detention are all under investigation. Regardless of how these tragic storylines unfold, this horror is conclusive evidence of the need for a new approach. We can and must do better.

Policy recommendations the Biden administration can advance without Congress

The Biden administration has ambitious goals to address many of our immigration system’s flaws and failings. Unfortunately, Congress has abandoned its role and responsibility as a co-equal partner in reforming our immigration laws. In the face of this congressional paralysis, our colleagues at the Immigration Hub worked with other partners to develop a concrete set of policy recommendations that the Administration can adopt without Congressional support to strengthen our immigration system.

These common sense, actionable recommendations are long overdue. Making the system fairer and more functional is good policy and good politics. It is also the right thing to do for millions of families and communities that have struggled under the weight of a broken system for decades. Adopting these humane and responsible measures ahead of the 2024 presidential election will help fulfill President Biden’s commitment to build a better system and will be one of the important legacies of his first term in office.

We are heartbroken over the loss of life at the Ciudad Juarez immigrant detention center and dismayed by the failure of national leaders to situate this tragedy in its larger context. If we don’t reconsider our approach to these larger migration dynamics and change course quickly, we can be certain that this will not be the last — or largest — such catastrophe.

If you would like to help, consider donating to the Mexican organization Institute for Women in Migration (IMUMI) (see Donate button on their website), which works closely with Mexican organizations on the Mexican side of the Mexico-US border and is helping distribute donations for local humanitarian, legal, coordination and advocacy efforts that will be crucial to the ongoing support of the survivors. Separately, our friends at Haitian Bridge Alliance are fundraising to support humanitarian, legal, and medical services. Donations will be split between Las Americas, Hope Border Institute, and Diocesan Migrant and Refugee Services, three local organizations in El Paso who are on the front lines of this tragedy.

In solidarity,

Marshall Fitz
Managing Director of Immigration

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Marshall Fitz

Managing Director of Immigration at the Emerson Collective. Advocate for humanity, sports junky, 1/2-assed Buddhist, proud papa and spouse. Views obv my own.