The Biden administration proposed a rule on February 21 to penalize asylum seekers who cross the border without an approved appointment to request asylum. If they don’t have one, they must show they applied for and were denied asylum in another nation they passed through on their way to the United States. The White House has sought to justify the new rule as a temporary measure, but this is deceptive. If the rule survives court challenges, it is unlikely that another administration will lift it and pay the political cost.
The rule drew outrage from members of Congress and immigrant rights and humanitarian organizations that have urged President Biden to roll back the restrictions and obstacles to asylum put in place by former President Trump. Groups rallied outside the White House on February 23 denouncing the proposal. “People fleeing persecution have a legal and moral right to seek asylum at our border, no matter how they get here,” said Kate Jastram, Director of Policy and Advocacy for the Center for Gender and Refugee Studies. “This rule is an affront to our laws, treaty obligations, and the United States’ longstanding tradition of welcoming refugees. It is utterly shameful that, once again, the Biden administration is reverting to the Trump playbook and putting political expediency before human lives.”
The Biden administration is clearly concerned about increased border crossings following the coming lifting of the Title 42 Border Order set for May 11. Title 42 has allowed Customs and Border Patrol to deny U.S. entry to asylum seekers under the pretext of the pandemic. The proposed two-year duration of the rule is evidently a strategy to try to suppress entry of migrants and asylum-seekers prior to the 2024 presidential elections.
In its defense, the White House argues that the rule is accompanied by increased opportunities for legal pathways, such as the availability of a new app (CBP One) to try to schedule an asylum appointment and the promises of slots for entry for two-year humanitarian parole for a total of 30,000 Haitians, Venezuelans, Nicaraguans, and Cubans each month.
However, advocates for asylum such as the Welcome with Dignity campaign rightly label it an “asylum ban.” The new rule would require asylum seekers who do not secure an appointment —such as via CBP One— to first apply for asylum in a country they passed through, which are countries with weak asylum systems, such as Mexico, or practically nonfunctional systems, such as Guatemala, Honduras, and El Salvador. It also forces asylum-seekers to wait in dangerous terrain along the U.S.-Mexico border, in Central America, or in the very countries from which they seek to flee. Moreover, if an asylum seeker is denied access to asylum in another country, that’s likely to harm, not help, their chances of actually receiving asylum in the United States.
While Haitians, Venezuelans, Nicaraguans, and Cubans have increased access to humanitarian parole, they will need to have someone to sponsor them in the United States, have cash for airfare, a passport, and time enough to wait — after which they can fly into the United States with a two-year humanitarian parole status that allows them to work. Moreover, this list of prioritized countries notably leaves out places like Guatemala, where the corrupt takeover of government and judicial institutions is forcing judicial personnel, Indigenous people, and human rights defenders to flee.
As the majority of people arriving at the border to seek asylum are poor and fleeing from situations in which they are highly vulnerable, the process this new rule would put in place is decidedly discriminatory. To use CPB One to set up an appointment to start the first stage of being screened for asylum, people need a smartphone, must speak English, Spanish, or Kreyol, must be able to navigate error messages in English, and will have to keep trying day after day to access an appointment as the slots fill up and are far fewer than needed. If they don’t have an approved appointment and didn’t apply for and were denied asylum elsewhere, they can apply for an exception to these rules — but this will be judged by a more difficult standard than has been used in recent years to prove they are in “imminent and extreme danger.”
The new system this rule will put in place privileges those who are better off, have family in the United States, are from certain countries, and can afford to wait within their countries. As two organizations that work closely with migrants and asylum seekers, the Florence Immigrant & Refugee Rights Project and the Kino Border Initiative, noted, “We know from previous attempts to implement similar policies that bans on asylum will turn people back to danger and even death. This plan would disintegrate the very fibers of our asylum system by barring asylum for all but a select few, those who have the privilege and resources to either arrive to the United States via airplane or ability to navigate a smartphone app and wait for days or even weeks for an appointment to present at a port of entry.”
This new system “will inflict devastating harms on refugees while violating U.S. law and treaty obligations,” according to Eleanor Acer, senior director for refugee protection at Human Rights First. Moreover, the Biden administration’s policies hinge on allowing each administration to decide which nationalities to favor, decisions that can be ideological, political, and biased.
Groups opposed to the Biden administration’s new rule will take it to court. Some Republican leaders, meanwhile, are attacking it from the other direction. Twenty Republican-led states have brought a lawsuit challenging the Biden Administration’s plan to provide expanded humanitarian parole slots for Haitian, Venezuelan, Cuban, and Nicaraguan asylum seekers and House Republican leadership is holding hearings denouncing the Biden Administration’s migration and asylum policy as “open borders.” In the short term, there are few possibilities that the U.S. Congress could take much-needed action on immigration reform, including to create pathways to citizenship for Dreamers and Temporary Protected Status holders.
This new rule proposed by the Biden administration is a far cry from the Statue of Liberty’s words--“Give me your tired, your poor, your huddled masses yearning to breathe free.” Instead, it is: use the app, make sure you have money for the plane—or better yet, apply somewhere else first.
Lisa Haugaard is the Executive Director at the Latin America Working Group.
