Erin Barbato on the Legal Status of Migrants Entering the US

Frederica Freyberg:
The crush of people crossing the border is described as a humanitarian crisis. Meanwhile, three million pending asylum cases before U.S. immigration courts means migrants gaining entry at the border wait years for their hearings, all the while living and, after a time, legally working in the U.S. Erin Barbato is the director of the Immigrant Justice Clinic at the University of Wisconsin Law School. She recently visited the border and she joins us now. Thanks a lot for being here.

Erin Barbato:
Thanks for having me.

Frederica Freyberg:
So I understand that you were in Tijuana.

Erin Barbato:
Yes, I was in Tijuana in December to take a close look at what is actually happening on the border and the policies that are in place there right now through the Department of Homeland Security and really looking at how people can access our asylum system and the new policies that are in place.

Frederica Freyberg:
What did you see at the border?

Erin Barbato:
So we visited a number of shelters that were housing people who are in transit attempting to seek refuge in the U.S. And in order to do so right now, they need to apply for an appointment with an app, a CBP One app. And many of the people we met with have been waiting for months in order to access that appointment, but it’s — our government is encouraging people to go through a regular route to enter the U.S. to seek protection, but it is causing a lot of people to wait very long in Mexico before they can even access our asylum system.

Frederica Freyberg:
Why are so many millions of people wanting to gain entry into the U.S.?

Erin Barbato:
I mean, that’s a good question. I think when you look at it, we live in a great country and people are suffering all over the world and so if we were living in a country where no one wanted to come, that would probably be an issue, but we’re living in a country where we do have opportunity for people. And peoples’ lives are in danger in certain countries. Not everybody coming will qualify for asylum but many of them do.

Frederica Freyberg:
What policies have changed allowing this more recent crush?

Erin Barbato:
I’m not sure if the policies have changed. It’s difficult in the past few years compare numbers considering that the border was closed under Title 42 for so long and now that the border is — it’s not open, but it’s functioning under what’s called Title 8, which is a law that governs our asylum process allowing people to seek asylum at our southern border which they can’t really do right now unless they have a CBP One app appointment. One other change that potentially has some validity in helping people access the asylum system in a more regular manner is the opening of these [Spanish word] mobile offices in Colombia, Guatemala and Costa Rica, and will allow certain people with strong cases to apply for refugee status there and then fly to the U.S. And so it could take some pressure off the border as well as our asylum system.

Frederica Freyberg:
Meanwhile, there’s so much discussion around this and the numbers of people crossing into the United States. What happens if, through some executive or legislative action, the borders close? Is that even possible?

Erin Barbato:
It seems that it is possibly, potentially whether our president has the ability under the laws to close the border I think is a question that will be litigated in court. Our laws say that people have the right to seek asylum in the U.S. as well as to enter the border if they have an employment-based visa or even a visitor visa to visit a family. So it could have really harsh consequences on separating families and also putting more people in danger, but that may happen.

Frederica Freyberg:
Short of closing the border, does it seem likely that highly restrictive laws will be put in place at this time?

Erin Barbato:
I know that they’ve been discussed. I’m not sure that they’ve ever worked before. More deterrents, more enforcement doesn’t seem to deter people to necessarily come from the U.S. and I think there might be a better way to look at a more humanitarian solution.

Frederica Freyberg:
Why do people wait so long to have their cases heard?

Erin Barbato:
The backlog within our administrative law system in the immigration courts is — it’s very long. And so people, even with the strongest asylum cases, are waiting years in order to access the benefits that they are entitled to under our laws, and so it makes the system very difficult to manage. People may miss their court hearings because the court hearings get changed all of the time and people don’t have an attorney when they’re in the process unless they can afford one or find a pro bono one. It’s a very difficult system to navigate and it’s not going quickly for people who are eligible.

Frederica Freyberg:
Once they get to that hearing, how likely is it that people seeking asylum will be granted it?

Erin Barbato:
You know, the percentages differ where you’re in the U.S. The numbers — the judges’ percentages of approvals are available across the country. So it’s hard to say exactly, but it’s difficult. It’s not — the percentages are not high for the people that receive asylum. If you’re represented by an attorney, you’re more likely to receive asylum because they know what the law is, what the judge is looking for based on your story, but it’s a very complicated, difficult process and people do not just — aren’t just given papers. It takes years. It takes months to prepare. It’s a very difficult process.

Frederica Freyberg:
Meanwhile, people who are awaiting that hearing, they can get authorization to work legally?

Erin Barbato:
Yes. Normally, depending on what process they’re going through, but you have to wait a number of months, six months to a year normally, to obtain a work permit to work in the U.S. Once you have that you’re here with authorization. You can work. You can get a driver’s license. You can get a social security number, but you’re not here permanently. You can’t leave the U.S. You don’t have access to public benefits. You are here temporarily and maybe it’s for years waiting to access the asylum system, but the work permit does allow people to participate in society and support themselves.

Frederica Freyberg:
All right. We need to leave it there. Erin Barbato, thanks very much.

Erin Barbato:
Thanks so much for having me.