How Biden’s New Border Policy Hurts Asylum Seekers

Introduction

The Joe Biden administration announced sweeping changes to migration policy at the U.S. southern border with Mexico on January 5, 2023.[1] Three nationalities of arriving asylum seekers — Nicaraguans, Cubans and Haitians — will be eligible for a small-scale program through which they can apply to enter the United States under humanitarian parole, so long as they have a sponsor residing in the U.S. and meet other requirements. This is in addition to Venezuelan nationals who became eligible for the program in October.

However, a worrying aspect of the policy change involves adding these same nationalities to those that can be expelled to Mexico under the Title 42 ban, meaning that individuals arriving at the southern border will be unable to seek asylum in the United States. The administration also proposed instating a “transit ban,” similar to the safe third country agreements that were attempted under former President Donald Trump, whereby individuals are required to seek asylum in the first country they pass through and can be returned to that country if they attempt to instead seek asylum in the United States. This brief explains the proposed changes in detail and recommends a better way to help asylum seekers, taking stock of Biden’s overall approach to asylum two years into his presidency.

Biden’s Use of Title 42

The Trump administration took unprecedented actions to limit the number of asylum seekers, refugees, and regular and irregular migrants allowed to come to or remain in the United States. President Biden campaigned on a very different approach to migration and asylum than his predecessor, and during his first few weeks in office, he released a slew of executive orders that aimed to make substantive changes to this policy area. Technically, the administration has fought in court to remove the Title 42 ban, which prevents people from seeking asylum and forces them to remain in Mexico without access to a well-functioning asylum system and important protections. Yet simultaneously, the Biden administration has been adding to the list of nationalities that can be expelled to Mexico under Title 42.

In October 2022, when the number of arriving Venezuelans spiked, the administration convinced the Mexican government to accept Venezuelan nationals expelled from the U.S. under Title 42, while simultaneously allowing a small number of Venezuelans still outside the United States to apply for humanitarian parole. The administration’s latest move to include Nicaraguans, Cubans and Haitians in this program represents a further attempt to prevent nationalities in need of protection from arriving and successfully claiming asylum at the southern U.S. border. To apply for humanitarian parole, Venezuelan, Nicaraguan, Cuban or Haitian individuals need to have an existing connection in the U.S. who can serve as a sponsor, and must have the wherewithal to wade through the necessary bureaucratic process and use an app. Additionally, they must be able to afford a plane ticket, pass a background check and meet other administrative requirements. There is also a cap of 30,000 individuals from those four nationalities who can be accepted into the program each month.

Seeking asylum is a right protected by domestic and international law and should not be contingent upon existing connections in the U.S. or financial assets. Furthermore, forcing those seeking asylum to wait in Mexico under Title 42 places individuals in highly unsafe conditions where they are easily preyed on by traffickers and may end up being kidnapped or subject to extortion. Many are forced to look for alternative and irregular ways to cross the border — usually by paying a smuggler — because there is currently no legal way to seek asylum in the U.S. for most families and adults. The expulsion of individuals under Title 42 over the last three years is partly responsible for the higher-than-usual numbers of what Customs and Border Patrol refers to as “encounters” with people trying to reach U.S. soil — especially since many individuals make repeated attempts to cross the border.[2]

The Proposed ‘Transit Ban’

Safe third country agreements are a way to legally return asylum seekers to the territory of another country that the individual previously passed through. The U.S. has a safe third country agreement in place with Canada, whereby asylum seekers who arrive in Canada after having traveled through the U.S. can be sent back to the U.S. to have their claims assessed there, and vice versa. Countries of the European Union have been using safe third country agreements since the 1990s, when Germany first instigated their use. And the 2016 EU-Turkey “deal” also had a safe third country mechanism embedded within it, meaning that Syrian nationals could be returned to Turkey as part of the agreement.

The Trump administration used this model to enact safe third country agreements with Guatemala, Honduras and El Salvador in 2019. Since safe third country agreements are not treaties, they can be signed unilaterally and do not require congressional approval. The agreements were rightly cancelled by executive order during the initial days of the Biden administration since Guatemala, Honduras and El Salvador all lack well-functioning asylum systems, and individuals returned to these countries are often subject to generalized violence. However, the Biden administration appears to be changing course, announcing its plans to develop a “transit ban” that would similarly allow the U.S. to return an asylum seeker to any country that they passed through on their way to the U.S., forcing them to instead seek asylum there.

Rather than a safe third country agreement with Mexico, the Trump administration instigated the Migration Protection Protocols (MPP, informally the “Remain in Mexico” program), which required asylum seekers from Central American countries to remain in Mexico while awaiting court hearings in the United States. Like the safe third country agreements with Guatemala, Honduras and El Salvador, President Biden formally ended the MPP program shortly after his inauguration, though the program subsequently went through legal battles after Texas and Missouri sued to keep it in place, with the Supreme Court ultimately ruling in the administration’s favor.[3] President Biden met with Mexican President Andrés Manuel López Obrador on January 9 at the North American Leaders’ Summit, with immigration as one of the central topics on the agenda. It is unclear how the Biden administration will seek Mexico’s cooperation on establishing a transit ban, and whether an option to revamp and extend the MPP program is on the table. 

A Better Approach

While expanding pathways to protection for specific nationalities of arriving asylum seekers is a positive step, only a small proportion of potential asylum seekers will be able to meet the onerous requirements of advanced humanitarian parole. Asylum seekers with fewer resources who arrive at the U.S. border should still have the right to apply for protection under U.S. and international law, and should not be returned to northern Mexican border cities where their safety cannot be guaranteed. The administration campaigned on a promise of ending the use of the Title 42 ban to expel asylum seekers and has been fighting the ban in court; it should not be expanding the use of Title 42 to further infringe on the rights of asylum seekers to legally access safety.

The administration has faced a pattern of needing to reallocate and rush resources to the border whenever the number of arriving asylum seekers increases, which we know is likely to occur every winter and early spring because of more temperate weather — and which will certainly occur when Title 42 is eventually overturned in court. The administration needs to develop a more robust and consistent manner of receiving asylum seekers and conducting initial vulnerability assessments, not just for minors, but also for adults and families, regardless of nationality. One of the ways to prevent a strain on Department of Homeland Security resources and facilities is to expand the opportunities for arriving asylum seekers to stay with family members or in hostels while awaiting their asylum hearings, since either of these options is much cheaper than immigration detention.[4] While some conservative politicians object to this due to concerns over individuals not appearing in court, a 2021 American Immigration Council report examining 10 years of data concluded that over 80% percent of asylum seekers do show up for their hearings, and this number is over 90% percent when asylum seekers have access to a lawyer.[5]

At present, the administration is attempting to appease not only conservative politicians and voters, who claim that the situation at the border is a crisis, but also liberal immigration advocates, who would like to see additional pathways for asylum seekers to enter the United States. In reality, the administration has not won favor from either camp. The administration should return to its initial approach to asylum, emphasizing that asylum is a normal and manageable process, and that refugees arriving at our southern border can be vetted and should be able to remain in the United States if their claims are found to be valid. Ultimately, in the second half of its term, the Biden administration needs more political courage on the issue of asylum.

Endnotes

[1] Department of Homeland Security, “DHS Continues to Prepare for the End of Title 42; Announces New Border Enforcement Measures and Additional Safe and Orderly Processes,” January 5, 2023, https://www.dhs.gov/news/2023/01/05/dhs-continues-prepare-end-title-42-announces-new-border-enforcement-measures-and. 

[2] John Gramlich, “Key Facts About Title 42, the Pandemic Policy that has Reshaped Immigration Enforcement at the U.S.-Mexico Border,” Pew Research Center, April 27, 2022. https://www.pewresearch.org/fact-tank/2022/04/27/key-facts-about-title-42-the-pandemic-policy-that-has-reshaped-immigration-enforcement-at-u-s-mexico-border/. 

[3] American Immigration Lawyers Association, “Featured Issue: Migrant Protection Protocols,” American Immigration Lawyers Association, October 7, 2022, https://www.aila.org/advo-media/issues/port-courts. 

[4] Laurence Benenson, “The Math of Immigration Detention, 2018 Update: Costs Continue to Multiple,”  National Immigration Forum, May 9, 2018, https://immigrationforum.org/article/math-immigration-detention-2018-update-costs-continue-mulitply/. 

[5] American Immigration Council, “11 Years of Government Data Reveal That Immigrants Do Show Up In Court,” January 28, 2021, https://www.americanimmigrationcouncil.org/news/11-years-government-data-reveal-immigrants-do-show-court. 

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