On Mondays and Thursdays in San Antonio’s immigration court, migrants line a narrow hallway, waiting for pro bono legal assistance to help them navigate a confusing and constantly changing immigration system.
Most in line say they crossed the border seeking work to support their families in countries impacted by political chaos and economic collapse. But the existing asylum process makes that difficult.
In interviews with migrants and immigration attorneys, many described how confusion and pandemic-era delays leave asylum-seekers with no other choice but to seek work illegally to support themselves while their cases wind through the system. It’s a decision that can put them at risk for exploitation.
Data shows the majority will be denied asylum.
“Because of the backlog of the immigration courts, it will be literally years before they are notified to show up,” U.S. Sen. John Cornyn (R-Texas) told members of Congress in a January speech. “If [asylum-seekers] do show up [in court], 90% of them will be unsuccessful in obtaining asylum.”
Yet they keep coming. According to recent data from U.S. Customs and Border Protection, 1.3 million people crossed the Texas border in fiscal year 2022, which began in October 2021. It was a million a year before.
Many migrants already in the country are working to navigate the system as it exists, through a process called “defensive asylum.”
Upon unauthorized arrival at a border point of entry, a migrant becomes a defendant in a deportation case brought by the U.S. Department of Homeland Security. They must then prove fear of violence, danger or persecution in their home country to be granted asylum.
Three months after a Venezuelan migrant who identified himself as Jose Moreno applied for asylum, a federal judge in San Antonio set his next hearing for March 5, 2024, and urged him to get an attorney.
Under the existing rules, the soonest Moreno can apply for a work permit is 150 days, or about five months after he filed for asylum. For now, Moreno drives for Uber using false identification 12 hours a day to support his five children back home.
Moreno didn’t understand how complicated it would be to support his family, including taking on the risk of working illegally.
“Everything is difficult, from the point that a person enters this country,” Moreno said. “Because one comes with another vision — that here, they’ll be able to accomplish things. That here, everything is easy.”
How defensive asylum works
Due to a backlog in cases made worse by the coronavirus pandemic, the already lengthy defensive asylum process takes years. A case that began in 2019 may not go to trial until 2024 or 2025, said Erica Schommer, a clinical professor of law at St. Mary’s University.
The San Antonio Immigration Court has a backlog of 64,220 immigration cases for fiscal year 2023, according to Syracuse University’s Transactional Records Access Clearinghouse (TRAC), a nonprofit that gathers immigration data. The average wait time for a hearing is 771 days — more than two years.
Being granted asylum depends not only on the details of a migrant’s story, but also on whether they are able to hire an attorney, which immigration court they’re in and which judge adjudicates their case.
“In Texas, the determining factor is that you’re in the 5th Circuit,” Schommer said. “Someone who had the exact same thing happen to them, or something very similar happened … [it’s] harder to get asylum in Texas than they could, for example, in California.”
San Antonio’s immigration court is within the conservative 5th U.S. Circuit Court of Appeals, which statistically approves fewer asylum claims than other circuits. The San Antonio Immigration Court granted about 25% of asylum claims during fiscal year 2023, according to statistics from the Executive Office for Immigration Review — slightly off from Cornyn’s national estimate.
“There’s this perception that you can just come here and apply for asylum and it’s extremely easy,” Schommer said. “It’s not easy. Even with a lawyer who knows the law very well … it’s never easy to win asylum because there are so many factors that are outside of our control.”
Still, despite the long odds, nonprofits like American Gateways and Catholic Charities’ Caritas Legal Services provide migrants with critical legal advice and direction.
In a room across the hall from the immigration courtrooms, legal assistants from American Gateways brief asylum-seekers who do not have an attorney on the defensive asylum process and what to expect during hearings. Caritas works with migrants at San Antonio’s migrant resource center, now run by Catholic Charities.
And while their chances of success increase if they do so, most migrants can’t afford to hire an attorney. Moreno interviewed three attorneys who offered to take his case for between $15,000 and $17,000, but since he sends half his earnings back to Venezuela, that figure was out of reach.
Moreno still doesn’t have an attorney.
Depending on a sponsor to support them financially through the process isn’t always an option for asylum-seekers, either.
While they wait for their asylum cases to wind through the system, migrants often send money back to their families while paying for their own housing, food and necessities — not that different from the monthly needs of the 64% of Americans who live paycheck-to-paycheck.
Until they are granted a work permit, they are unable to earn money legally.
The work-permit clock
The required delay between filing for asylum and applying for a work permit is by design.
Lawmakers have had longstanding concerns that migrants are using the drawn-out asylum process to buy time to work in the U.S., said Robert Painter, legal director for American Gateways.
The 150-day work-permit clock begins after a migrant has filed for asylum in immigration court. Even after applying for the work permit, they can’t legally make money in the U.S. until the permit is granted — at the soonest 30 days after applying for the work permit and 180 days after applying for asylum.
“Work authorization for asylum-seekers is critical for supporting themselves and their families, and also for obtaining representation,” said Painter.
And while many migrants, especially from countries like Venezuela and Nicaragua, often have strong asylum claims based on fear, some say they would leap at the chance to seek economic asylum if such an option were available, allowing them to work legally and send money home.
While the current system remains in place, getting that clock started is the reason American Gateways and Caritas Legal Services advise migrants file for asylum as quickly as possible.
But Marie Garcia, director of Caritas Legal Services, said that doesn’t always happen. Migrants arrive with more pressing worries, like contacting their hosts to let them know they’ve made it or reuniting with family members.
Many arrive in the U.S. already thousands of dollars in debt after paying a coyote to get them to the border. Most are impoverished, having left their home countries because they cannot support their families. Due to their immediate situation, migrants say they cannot wait for a work permit.
But working under the table means an increased risk of exploitation, including being vulnerable to wage theft, working long hours, doing dangerous work and fearing retaliation if they report the abuse.
Alexander Perez, a migrant from Venezuela who stayed at the migrant resource center, found work almost every day in San Antonio. Even though he knew it was not permitted within the asylum process, he sought it anyway because he had been sleeping on the streets. Each day, he joined a line of migrants outside as trucks pulled up, their drivers offering day work like construction, painting and landscaping for cash.
“There’s a lot of work here. But because we come for refuge, they don’t let us work. It’s a law that’s for us, but against us,” Perez explained in an interview last year with the San Antonio Report.
Perez, Moreno and other migrants said they have experienced working long hours without breaks and are aware they run the risk of being short-changed at the end of a workday.
“We come to work, we don’t come to ask for anything or beg. This is a country where there’s jobs everywhere. There’s so much opportunity, but we stop working while we’re doing our process,” Perez said. “We need attorneys, but if we don’t have money, how do we pay for that?”
After a group of migrants was flown to Martha’s Vineyard in September 2022, staff at the migrant resource center began advising migrants not to accept rides, jobs or any other assistance from strangers outside the center — and to report any concerns to the staff. They also posted signs providing the National Human Trafficking hotline number.
Need for labor
The U.S. is missing 2.46 million workers, according to the U.S. Chamber of Commerce. In March, the chamber reported 11 million open jobs and 5.7 million unemployed workers. Texas has 81 available workers for every 100 open jobs.
In San Antonio, 67% of Texas restaurant owners report they don’t have enough employees to meet existing demands, said Kelsey Streufert, chief public affairs officer for the Texas Restaurant Association.
“There’s absolutely a need for more workers in restaurants across the state, including our high-growth areas like San Antonio. That tends to be where we see the most ‘help wanted’ signs,” she said.
Kelsey said reforms to expedite the process for immigrants to lawfully work in the U.S. would benefit restaurants and the economy.
“Our labor force in general is aging,” she said. “Texas is growing tremendously. We add about 1,000 people to our state every day. Immigrants and asylum seekers are eager to help, are eager to jump in, do their part, pay taxes and help make Texas even stronger.”
A changing landscape
Any form of asylum may soon be even harder to obtain. An administrative rule proposed by President Joe Biden’s administration would penalize asylum-seekers who cross the border without permission and fail to apply for protection in other nations before entering the U.S.
As soon as May and ahead of the end of Title 42, any migrant from any country who attempts to enter the U.S. without authorization could automatically be ineligible for asylum.
At the San Antonio resource center, most migrants arrive after selling everything back home, including their cars and houses. Some don’t have internet access or a smartphone, making applying for asylum from their home countries almost impossible.
Recent DHS rules on migrants from certain nations have caused dramatic fluctuations in arrivals to the once-full center and it’s unclear what will happen after the end of Title 42.
“I think that we’re going to see the same thing that we have been seeing, which is people who are desperate to find safety, who could no longer stay in their home country because they feel threatened or they cannot survive, coming to find a better life,” said Edna Yang, CEO of American Gateways.
But the journey can be deadly. In June 2022, 53 migrants died after being trapped in sweltering heat inside an 18-wheeler found on the South Side of San Antonio. All were Mexican, Guatemalan and Honduran nationals who had entered the U.S. without authorization, many seeking opportunities for work.
‘Atrapado’ in the system
In Washington, politicians in both parties agree on the need for comprehensive immigration reform, but differ sharply on how to get started. Cornyn, who has led the effort for a bipartisan immigration bill, has said the border must be secure before anything.
“Strengthening the asylum system and reinforcing the rights of asylum seekers — including their ability to work in the U.S. — should be part of any broader immigration reform,” U.S. Rep. Joaquin Castro (D-San Antonio) told the San Antonio Report.
Castro noted that a shortage of immigration attorneys and court backlog holds migrants back from fighting their cases in court.
“I strongly support removing or easing barriers for individuals seeking asylum to get work authorization in the United States while the U.S. reviews their claim,” he said.
House Democrats passed nearly a dozen immigration bills last session, but Senate Republicans blocked all from moving forward, he added. Castro allowed that an immigration reform package could include investments in border security that Republicans are asking for, but he added that “we need real solutions” — and blamed GOP colleagues for using the border crisis to stoke xenophobia.
In January, the Biden administration announced a more streamlined process for immigrants who have been victims of exploitation in the workplace to apply for protections from deportation.
And in Congress, a 2022 bill filed by Sen. Susan Collins (R-Maine) would reduce the time migrants can receive a work permit from 180 days to 30 days. The bill is an effort to help both migrants and U.S. businesses desperate for workers.
Speaking in Spanish, Moreno described the feeling of not being able to work in the U.S. or travel back to Venezuela as being “atrapado” — stuck.
“If my asylum is approved, very well, I’ll make my life here and travel back to Venezuela. I can do both things,” Moreno said. “But if I don’t have one or the other, I’ll be atrapado. I can’t do anything.
“Right now, we’re stuck.”