Opinion - Congress must modernize asylum policy before the justices upend it

An immigration case currently in front of the Supreme Court may unintentionally nudge asylum policy toward more illegal crossings.

In one of several important immigration-related cases, the Supreme Court heard oral arguments in March in Mullins v. Al Otro Lado , about whether the U.S. government can prevent people seeking asylum from crossing into the U.S. at ports of entry. Traditionally, asylum seekers have been allowed into the country to file their petitions from U.S. soil.

The decision will likely affect whether more people will try to cross into the U.S. between ports of entry. But fortunately, the U.S. doesn’t need the Supreme Court to build a modern immigration approach that considers both security and human dignity. The ultimate power to decide how we should manage asylum at the border resides in Congress, not with the various and at times contradictory decisions by courts or changes in the Oval Office.

Known as a “metering” case, Mullins v. Al Otro Lado addresses a policy initiated by the Obama administration in 2016 and continued in the first Trump administration of limiting the number of people who can seek asylum each day at ports of entry. Although it is not in effect now, the current Trump administration wants the option to reinstate the policy if large numbers of asylum-seekers should again arrive at the border.

While we wait for the Supreme Court ruling later this year, we can get a sense of the justices’ thinking from their questions and comments during oral arguments. They focused on whether the law’s requirement that the migrant must “arrive” in the U.S. to request asylum means that they must be physically on U.S. soil.

If the Supreme Court says they must, and the government won’t let them in, that would likely create two undesirable outcomes: Thousands of migrants will be forced to wait in makeshift refugee camps in Mexico, and many will decide to pay human smugglers to help them cross the border between ports of entry, ensuring they are on U.S. soil to make their asylum request.

This would again create chaos and instability, but Congress could avoid all that with a stronger approach to managing regional migration.

Most migrants at the border are subject to expedited removal — a faster deportation process for recent arrivals designed to deter crossings. Congress created expedited removal in 1996, with an exception to allow asylum applications. Initially only used at ports of entry, expedited removal and the asylum exception were expanded in 2005 to apply between ports of entry, too.

This change didn’t fundamentally alter border operations for several years. When the demographics of border arrivals changed to families and children in 2013, that exception rapidly overwhelmed the process. By 2024, hundreds of thousands of migrants per month were requesting asylum. While the border is quiet now, future policy changes or regional crises could change that, forcing the U.S. to once again manage modern migration challenges with outdated policy and process.

It’s difficult to maintain facilities or surge capacity throughout the immigration system to address large increases in migration, a major reason that current border asylum rules are not sustainable. Three different Cabinet departments manage parts of the asylum process for different populations, and each has a separate appropriations committee and annual bill in Congress.

In an era of persistent deficits, Congress doesn’t generally spend money on unneeded facilities or personnel. And coordinating these resources across departments doesn’t happen.

The United States is still under international treaty obligation to preserve protection for genuine refugees, but it can create orderly processes, particularly for border arrivals. As a recent article for the George W. Bush Institute argued, immigration policy is increasingly entwined with foreign policy. The executive branch, primarily through the Department of State and Department of Homeland Security, should engage with neighboring countries to manage migrants who enter or pass through their territories with the intent to seek asylum. These agencies can work with our regional allies to:

• Revise refugee processes in contiguous and other countries in the hemisphere;

• Develop screening and application processes before migrants reach the border;

• Revise the process for encountering asylum-seekers who arrive at the border; and

• Update the process for deciding asylum applications for those who are granted access to it at the border.

While these recommendations would be a good start, legislation regarding asylum at the border must also be updated — a responsibility that is wholly on Congress.

While no new legislation has been enacted, several bills introduced recently have laid the foundation for such changes: creating limits on asylum availability to those who cross illegally, investing in screening processes without requiring people to come to the border, increasing refugee processing in the hemisphere for those who qualify, and creating more speedy asylum decisions for those who apply at the land borders.

How we address these issues will determine whether the U.S. can maintain its status as a beacon of safety for those suffering from persecution while maintaining a secure border. We believe it can and should be done.

Theresa Brown is an immigration fellow at the George W. Bush Institute, where Laura Collins is the director of immigration policy.

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