Migration Beyond Borders: How U.S. Immigration Law Fails to Address Regional Displacement in America

Migration from Latin America to the United States is often framed as a domestic immigration issue centered on border control, asylum, and enforcement policy. However, limiting this pattern of migration undermines the complex legal and political reality behind it. Migration from the Americas is not simply a result of individual decisions to seek better opportunities, but also the consequence of widespread political instability, economic collapse, violence, and environmental pressures across the region. These conditions have all played a role in producing sustained and large-scale displacement, particularly in countries such as Venezuela, Honduras, Guatemala, and El Salvador.¹ Despite this reality, U.S. immigration law continues to treat migration primarily as a series of individualized claims for asylum or temporary protection. However, this legal framework fails to account for the systemic and regional nature of displacement throughout the Western Hemisphere, as well as the role that U.S. foreign policy has played in shaping these conditions. As a result, current legal procedures, such as asylum laws, expulsion policies, and temporary protections, are insufficient to address the scale and causes of migration trends. This article argues that U.S. immigration law is fundamentally misaligned with the realities of Latin American migration because it evaluates displacement through individualized legal claims, even though migration in the region is shaped largely by widespread, structural conditions such as political instability, economic collapse, and violence that operate at a systemic level. By treating migration primarily as a legal issue, rather than as a regional phenomenon shaped by political and economic crises, the U.S. has constructed an inadequate, inconsistent legal framework that conflicts with its own legal obligations.

Migration as a Regional Phenomenon

Migration in Latin America is a defining feature of the region. According to recent data, over 25 million Latin American and Caribbean migrants reside in North America as of 2020, a number that has only increased significantly from approximately 10 million in 1990.² This dramatic rise reflects the persistence of structural conditions that have driven migration across decades. Rather than representing a temporary surge, these patterns indicate a long-term transformation in regional mobility, where migration has become embedded in the social, economic, and political fabric of the Americas.

Migration within the Americas is not just limited to movement toward the U.S. Approximately eleven million displaced individuals remain within Latin America and the Caribbean, highlighting that migration is a region-wide system of large-scale displacement which U.S. immigration law is ill-equipped to fully address.³ Many migrants relocate to neighboring countries before attempting to travel farther north, creating layered migration patterns that span multiple borders. This inter-regional movement highlights that migration is a part of a broader system in which countries across the hemisphere function as both points of origin and destination. As a result, these states are not only destinations but also starting points for further migration. The United States, while still a major destination, is therefore only one component of a much larger migration network shaped by regional instability. The causes of this migration are complex and interconnected. Migration flows result from overlapping political, economic, and social crises.⁴ These include democratic breakdown, corruption, cartel violence, and economic inequality, all of which compel individuals to leave their home countries. In many cases, these factors reinforce one another. Weak governance enables criminal organizations to thrive, economic instability exacerbates social unrest, and violence further undermines already fragile institutions. These conditions create environments in which migration becomes a necessity for survival.

The case of Venezuela illustrates the scale and intensity of the aforementioned phenomenon. Under the leadership of Nicolás Maduro, Venezuela experienced one of the largest displacement crises in the world, with more than 7 million migrants and refugees leaving the country as of 2023.⁵ This mass displacement exceeds that of several widely recognized global crises and highlights the severity of regional instability in the Americas. Venezuelan migrants have dispersed across the hemisphere, with many settling across Latin America before continuing north. This pattern further reinforces the idea that migration is a regional process. Yet, despite the systemic nature of these conditions, U.S. immigration law does not treat migration as a regional issue. Instead, it relies on individualized legal categories that fail to capture the broader forces that drive displacement. The law overlooks the structural realities that define migration in the Americas, which creates a disconnect between the legal framework and real experiences. This disconnect limits the U.S. immigration policy’s ability to respond effectively to one of the most significant and enduring challenges in the region.

Limits of U.S. Asylum Law and Temporary Protections

The primary legal process for protection under U.S. immigration law is asylum, which is codified in the Immigration and Nationality Act (INA). Under the INA, an individual who is physically present in the United States may apply for asylum regardless of their method of entry.⁶ However, eligibility for asylum also requires applicants to demonstrate a valid fear of persecution based on specific protected grounds, including race, religion, nationality, political opinion, or membership in a particular social group.⁷ While this framework reflects a commitment to humanitarian protection, it is constructed and often fails to capture the realities of contemporary migration in the Americas. In particular, it prioritizes claims that are based on forms of persecution, which makes it difficult to account for migrants who are fleeing broader generalized conditions such as violence, economic collapse, and political instability. These limitations create a significant gap between legal recognition and reality. Many migrants from Latin America are fleeing violence, economic collapse, and instability, which are conditions that do not always fit neatly within the definition of persecution. U.S. asylum law, which was rooted in the 1951 Refugee Convention, was originally designed to protect individuals facing persecution, particularly in the context of World War II and Cold War political oppression.⁸ As a result, it emphasizes harm that is tied to specific protected grounds rather than broader conditions. This framework contrasts with contemporary migration patterns in the Americas, where displacement is driven by these broader factors. As a result, individuals who are facing genuine danger may be unable to meet the strict legal threshold that is required for asylum, despite being displaced by severe and life-threatening circumstances. This reflects the original intent of asylum law, which was designed to protect against targeted persecution, creating a gap between the law’s purpose and present-day realities. This disparity is particularly evident in regions where violence is diffused rather than targeted, or where state institutions are too weak to offer protection but not explicitly persecutory in a manner legally recognized.

Additionally, the burden of proof rests on the applicant, who must provide sufficient evidence to demonstrate eligibility.⁹ In contexts where governments are weak or complicit in violence, obtaining such evidence is often challenging due to the lack of reliable documentation, limited access to official records, and more. Migrants fleeing violence, political instability, or economic collapse often lack access to proper documentation, further complicating their ability to substantiate their claims. This burden not only limits access to asylum but also reinforces systemic inequalities and privileges those with the resources or documentation to meet legal standards. The individualized nature of asylum evaluation further unites these limitations. By focusing on personal narratives rather than systemic conditions, the law treats each case in isolation. However, this structure can also obscure the broader forces driving large-scale displacement across the region. In doing so, the U.S. immigration law struggles to fully account for migration as a collective phenomenon.

In recognition of these gaps, the U.S. has implemented temporary forms of relief, most notably Temporary Protected Status (TPS). Created by Congress in 1990, TPS allows nationals of designated countries experiencing armed conflict, environmental disaster, or extraordinary conditions to remain in the United States and obtain work authorization.¹⁰ In theory, TPS could seem to address shortcomings of asylum law by acknowledging broader country conditions rather than individual proof of persecution. However, TPS introduces a different set of limitations that reinforces the inadequacies of the legal framework. While it provides immediate protection from deportation, it does not offer a pathway to permanent legal status, leaving recipients with no clear long-term resolution. For individuals from countries facing long-term crises, this temporary designation may be extended repeatedly without ever resolving their legal status.

Asylum law and TPS reveal a broader structural problem within U.S. immigration policy. Asylum imposes rigid criteria that exclude many migrant conditions, while TPS offers only temporary protection without addressing long-term needs. Both mechanisms ultimately fail to properly account for the regional and structural natures of migration in the Americas. As a result, U.S. immigration law continues to operate within a framework that is unequipped to resolve the complexity of displacement, undermining the U.S. ability to respond effectively to regional instability.

Title 42 and Asylum Protections

The limitations of U.S. immigration law were additionally exposed during the COVID-19 pandemic through the implementation of Title 42. Enacted in March 2020, this policy allowed U.S. authorities to expel migrants at the border without providing an opportunity to seek asylum.¹¹ Unlike traditional immigration procedures, Title 42 was justified under public health authority rather than immigration law, which shifted the legal basis for border control away from constitutional protections. This enables the federal government to bypass safeguards that would otherwise apply under immigration statutes. Under Title 42, individuals encountered at the border were immediately expelled in the interest of “public health.”¹² This marked a departure from previously established asylum law that had been placed to guarantee the right to apply for protection regardless of the method of entry. The policy denied migrants access to the asylum process before any individualized determination of risk or eligibility could be made. This fundamentally reshaped the legal relationship between the state and asylum seekers.

Critics have argued that Title 42 raised serious legal and ethical concerns. The policy effectively denied due process by preventing individuals from presenting asylum claims, which undermines domestic and international obligations.¹³ By eliminating access to processes such as hearings, legal counsel, or evidentiary review, Title 42 conflicts with core principles of procedural legal fairness in U.S. immigration law, which require that the individual be given an opportunity to present claims, access a review process, and challenge decisions. By bypassing these procedures, the policy effectively strips asylum seekers of meaningful protections. Additionally, public health experts questioned the justification of the policy, which notes the lack of evidence that supports the exclusion of asylum seekers while allowing other forms of travel to continue.¹⁴ This inconsistency suggests that the policy may have been driven less by claims of public health necessity. Over the course of its implementation, the United States expelled migrants nearly one million times under Title 42, which exemplifies the scale of its impact.¹⁵ These expulsions disproportionately affected people from Latin America. Title 42 illustrates how, in times of crisis, U.S. immigration policy can be implemented in ways that bypass the procedural safeguards that are central to asylum law. In doing so, it conflicts with the fundamental purpose of asylum protections, which are designed to ensure individualized review and due process before removal.

Conclusion

Migration from Latin America to the United States is not a matter of individual choice or isolated legal claims. It is a product of systemic crises that span national borders and ultimately reflect deep-rooted political and economic instability. U.S. migration law specifically continues to treat migration as a domestic issue that relies on legal frameworks that are not suited to properly address the complexity of displacement. Policies such as Title-42, limitations within asylum law, and temporary protections such as TPS highlight the inadequacy of the current system. As migration in the Americas continues to grow, the United States must confront the limitations of its legal approaches and consider reform in light of its humanitarian obligations and commitments to due process. A revised legal framework is essential for creating a more sustainable approach to immigration in the Americas, including reform to asylum law that broadens recognition of structural forms of displacement and strengthen procedural access to ensure that individuals fleeing broader crises are not excluded from protection.