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asylum ban
In Victory for Migrant Rights, US Court Blocks 'Cruel' Biden Asylum Restrictions
"The administration now faces a choice: Follow the law, or try to block the ruling from taking effect in 14 days, leaving people seeking safety in grave danger," said the ACLU.
Jul 25, 2023
Immigrant rights advocates on Tuesday applauded a ruling handed down by a U.S. district judge blocking the Biden administration's anti-asylum rule, which places restrictions on migrants who aim to exercise their internationally recognized right to seek asylum at the southern U.S. border.
Judge Jon S. Tigar, an Obama appointee who serves in the U.S. District Court of the Northern District of California, ruled that the new policy is unlawful, as he did when former Republican President Donald Trump imposed similar restrictions.
The measure, which was introduced in May and immediately prompted the ACLU and other legal groups to file a lawsuit on behalf of several rights organizations, requires migrants to prove that they previously sought protections in a third country before applying for asylum in the United States. The Biden administration has said migrants who want to seek asylum should schedule an appointment using an app that connects them to Customs and Border Protection instead of attempting to cross the border.
"To justify limiting eligibility for asylum based on the expansion of other means of entry or protection is to consider factors Congress did not intend to affect such eligibility," wrote Tigar in his ruling.
Melissa Crow, director of litigation at the Center for Gender & Refugee Studies, which joined the ACLU in representing the plaintiffs, said the policy "violates our laws and makes a mockery of our asylum system."
"The court got it right," Crow said. "We urge the administration to stop defending this illegal policy, and instead take immediate steps to establish a fair and humane process that upholds the rights of all people seeking refuge at our nation's doorstep."
Crow noted that the Biden administration recently admitted that "under the ban, people with meritorious legal claims can be barred from asylum and deported to countries where they face grave harm."
"To them, that is an acceptable price to pay for the illusion of border management," she said. "But they are breaking the law, sowing chaos, and putting vulnerable people in harm's way."
Tigar granted the Biden administration's request for a 14-day stay of the ruling, giving officials time to appeal the decision. The White House is expected to appeal to the U.S. 9th Circuit Court of Appeals and, if the appeals court also strikes down the policy, to the U.S. Supreme Court.
"The ruling is a victory, but each day the Biden administration prolongs the fight over its illegal ban, many people fleeing persecution and seeking safe harbor for their families are instead left in grave danger," said Katrina Eiland, deputy director of the ACLU's Immigrants' Rights Project. "The promise of America is to serve as a beacon of freedom and hope, and the administration can and should do better to fulfill this promise, rather than perpetuate cruel and ineffective policies that betray it."
In the lawsuit, the ACLU and other groups representing the plaintiffs wrote that President Joe Biden "doubled down on [his] predecessor's cruel asylum restrictions" despite having campaigned on "a promise to restore our asylum system."
"The agencies claim the rule merely provides consequences for asylum-seekers circumventing lawful pathways," reads the lawsuit. "But seeking asylum is a lawful pathway protected by our laws regardless of how one enters the country."
Vanessa Cárdenas, executive director of America's Voice, welcomed the ruling and its "strong message to the Biden administration that it must adhere to the law."
But she emphasized that even if Tigar's decision is upheld on appeal, "it does not fix the broken asylum system."
"Only Congress can fully fix the broken asylum and immigration system, giving people the option of coming with visas for family or work and legalizing those who already work here," said Cárdenas. "Congress must deliver the modernization we need."
"In the meantime," she added, "we call on the administration to use the tools it has, including dedicating more resources to the border to address asylum backlogs, while using parole programs, [Temporary Protected Status], and the refugee admissions process to stabilize the system and provide additional pathways for those in need of protection."
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Biden’s New Border Plan Is Already Putting Asylum Seekers at Risk
The restrictions undermine President Biden’s promise to end inhumane Trump-era border policies and make a shambles of the right to seek asylum.
Jun 29, 2023
The Biden administration recently announced that its border plan is “working as intended.” It was referring to President Joe Biden’s restrictive new policies that took effect with the ending of Title 42, the Covid-19 emergency health regulation that allowed the U.S. to turn away adult asylum seekers at the southern border.
What the administration failed to acknowledge is that these restrictions undermine President Biden’s promise to end inhumane Trump-era border policies. Instead he is making a shambles of the right to seek asylum.
Seeking asylum is a legal act under U.S. and international law, whether or not the asylum seeker enters at an official border crossing. Yet the new restrictions block asylum seekers from entering the U.S. and deny asylum eligibility to many who have credible fear of persecution but are unable to surmount the barriers the rule creates.
In the encampment we visited, approximately 2,500 people sheltered in shabby tents without running water, cooking, or bathing facilities, awaiting entry to the U.S.
I recently traveled with a group of attorneys to the Rio Grande Valley, where attorneys from the South Texas Pro Bono Asylum Representation Project (ProBAR) led us to a border encampment in Matamoros, Mexico, and to the Port Isabel Detention Center (PIDC) near Brownsville. What we saw and heard was reminiscent of the suffering under Trump administration policies that prevented migrants fleeing persecution from entering and seeking asylum in the U.S.
With the rescission of Title 42, individuals should again be permitted, under current law, to seek asylum in the U.S. Those who enter the U.S. and express fear of persecution have the right to an interview with an asylum officer. If they demonstrate credible fear of persecution on account of their race, religion, political opinion, or other protected ground, they should be permitted to apply for asylum. Those granted asylum are eligible for a green card and may petition to bring family to the U.S.
The Biden administration, however, severely limited these rights when it implemented the post-Title 42 Circumvention of Lawful Pathways Final Rule. Asylum-seekers crossing the southern border without authorization must now apply for and be denied asylum in a country through which they traveled or make an appointment to present themselves at a port of entry using the Customs and Border Protection (CBP) app known as CBP One. But it is nearly impossible to satisfy these requirements, as most transit countries do not have functioning asylum systems, and the CBP One app is riddled with malfunctions and delays.
Humanitarian organizations in Matamoros confirmed that only noncitizens with CBP One app appointments or a documented, grave medical condition are permitted to cross and present themselves at the Brownsville Port of Entry. This leaves migrants with valid asylum claims languishing in Matamoros in squalid and dangerous conditions. In the encampment we visited, approximately 2,500 people sheltered in shabby tents without running water, cooking, or bathing facilities, awaiting entry to the U.S.
Those who cross between official ports of entry without meeting one of the new conditions are presumed ineligible for asylum. Instead, they must meet a higher standard of proving reasonable fear of return and are only eligible for limited protection in the U.S. Those exempted from this presumed ineligibility include unaccompanied minors, trafficking victims, and people facing medical emergencies or imminent threat of death.
Most of the detained migrants we interviewed at PIDC had tried unsuccessfully to use the CBP One app. They had spotty access to internet, could not upload photos, were booted from the app, or were repeatedly advised that appointments were unavailable.
CBP processing centers are not designed for long-term detention, yet several migrants we interviewed were held in overcrowded, unhealthy CBP facilities for up to 12 days.
Several received transit passes as they entered countries along their journeys but had no realistic opportunities to apply for asylum. Others were kidnapped while waiting to cross. Captors tortured them while family members listened by cellphone and held them hostage until their families paid a ransom. After their release, fearing further violence, they crossed the Rio Grande, legally sought asylum, and were taken into CBP custody.
CBP processing centers are not designed for long-term detention, yet several migrants we interviewed were held in overcrowded, unhealthy CBP facilities for up to 12 days. They were then transferred to detention centers where some waited weeks for credible fear decisions. Few, if any, had lawyers to help them maneuver the complicated new asylum restrictions.
The American Immigration Council recently issued a report offering humane alternatives for border processing. They recommend, for example, expanding CBP’s capacity at ports of entry and establishing regional processing centers where “federal agencies are co-located with nongovernmental organizations to carry out processing, coordinate release, and provide effective case management for newly arrived migrants.”
The Department of Homeland Security said it will “make adjustments” to the new procedures if needed. However, small adjustments will not repair the damage done to the asylum process.
The Biden administration should rescind its rule and keep its promise to create humane border policies. The American Immigration Council has provided a roadmap—the Biden administration just needs to follow it.
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The US Government Is Illegal—Not Asylum-Seeking
As of Thursday, the Biden administration will implement an Asylum Ban that breaks national and international law by limiting who can seek asylum.
May 11, 2023
Title 42 ends Thursday, but the U.S.-led war on refugees will continue, as the policies that are replacing Title 42 are in many ways, much worse.
For the past three years, the U.S. has used the pandemic as a pretext to implement Title 42 and violate basic human rights. Under the measure, it has deported or detained 6.9 million mostly Latin American and Caribbean migrants at its southern border and denied refugees their right to claim asylum. Now, Title 8 will apply, and the U.S. government will maintain its harmful relationship with Latin America, while also violating various federal and international laws.
As of Thursday, the U.S. will implement an Asylum Ban that breaks the law by limiting who can seek asylum. There will be fast screening of migrants, and those who have passed through another country without first seeking protection there (inevitable for all land migrants except Mexicans) will not be eligible for asylum, even if the countries they pass through are not safe for them. All ineligible people will be deported.
The Asylum Ban operates under a guilty unless proven innocent logic—applicants are assumed to be ineligible if they have traveled through other countries and if they didn’t apply through the CBP One app.
Unlike Title 42, now people who try to enter the U.S. irregularly will be punished with a five-year prohibition from the U.S. Irregularity includes anyone who doesn’t go to the border at the time of their appointment, assigned to them by a bug-ridden CBP One app.
There are also plans to open processing centers, initially in Guatemala and Colombia, and to be run by the International Organization for Migration and United Nations High Commissioner for Refugee. The centers should help people apply for visas, but they must then fly to the U.S.—something most refugees and poor people can not do.
The U.S. government has said it will double the number of refugees from Latin America that it accepts, but it was already admitting a very low number (a maximum of 15,000 a month), and it will only accept people who apply through the app, processing centers, or embassies, who have eligible sponsors in the U.S., and arrive by plane. Mexico, meanwhile, has to accept deportees.
Ultimately, the changes mean that the mass deportations will continue. The screening interviews, instead of facilitating due process, involve interviewing exhausted people, many of whom have faced torture or kidnappings, over the phone while they are detained. They don’t typically know their legal rights and, if they fail to demonstrate that they fear persecution during these screenings, will be deported.
The Asylum Ban operates under a guilty unless proven innocent logic—applicants are assumed to be ineligible if they have traveled through other countries and if they didn’t apply through the CBP One app. But people without smartphones, those who can’t read, those with a visual disability, and those who speak other languages such as Indigenous languages aren’t able to use the app. The app is also very buggy, and error messages are in English. And while the U.S. is planning to expand the times when people can use the app to make appointments, migrants often spend weeks trying to get an appointment and fail due to technical errors and the very limited slots available.
Mexicans then spend weeks or months waiting in the dangerous country they are fleeing for an appointment, and most migrants of all origins are waiting while homeless in northern border cities, unable to work, and facing the dangers of kidnapping, rape, extortion, or worse from organized criminals.
For example, Human Rights Watch narrates one story of a family that couldn’t get an appointment with the app near where they were, and had to travel 1,200 miles to their assigned port of entry. On the way they were kidnapped, tortured, and extorted by a gang. Their abductors blindfolded them after 20 days and took them to the border, threatening to kill them if they didn’t cross. Border Patrol captured the family and told them they had crossed illegally, as they didn’t cross at the time and place of their app appointment, then expelled them back to the dangers of Mexico.
U.S. Migration Policy Is Criminal
“Let me be clear, our border is not open and will not be open after May 11,” said Homeland Security Secretary Alejandro Mayorkas. His declaration and the Asylum Ban violate various U.S. and international laws that stipulate that any person should be able to request asylum, no matter their identity, country of origin, or method for entering the country.
Specifically, prohibiting people from seeking asylum based on their access to the limited app appointments or the countries they have traveled through violates Section 208 of the Immigration and Nationality Act, the Geneva Convention, and the 1951 Refugee Convention. The convention also prohibits penalties against people seeking refugee protection based on their manner of entering a country (i.e. the five-year ban the U.S. will now enforce), and Section 1158 of Title 8 of the United States Code stipulates that people can apply for asylum, no matter how they enter the U.S. Finally, the 1967 Protocol, which broadens the 1951 Convention, also prohibits placing conditions on access to asylum procedures.
Trump tried to implement similar asylum bans, and they were repeatedly struck down by U.S. federal courts as unlawful.
Trump tried to implement similar asylum bans, and they were repeatedly struck down by U.S. federal courts as unlawful. Further, effectively blocking most asylum requests to people migrating by land is race- and class-based discrimination which particularly harms Latin Americans, people from the Caribbean, Indigenous people, and people of African descent.
The application app in of itself is illegal, because it functions as a type of metering. By having limited appointment slots, migrants, including Mexicans, are denied due process rights, and a U.S. federal judge ruled such metering as illegal. International standards for protecting asylum seekers are also being violated, as Mexican refugees have to stay in the country they are fleeing while they wait.
Finally, the U.S. government is also increasing the likelihood of refoulement (returning someone to likely danger), which is a serious human rights violation.
Borders Are a Plundering Mechanism
Though unstated, the Biden administration, and those before it, have clear reasons for such policies. They send soldiers to the border and criminalize and deport migrants because a closed border serves to enforce inequality and poverty. It keeps Latin American wages down, maintains a supply of informal, undocumented, low-paid workers in the U.S., while also ensuring U.S. companies have access to cheap labor they can use on the other side of the border.
From car manufacturers to clothing and parts manufacturers, there are thousands of U.S. companies in Mexico and Central America taking advantage of cheaper rent, water, electricity, and labor, then sending the goods and profits to the U.S.
A closed border is a policy of regional segregation and economic imperialism.
A closed border is a policy of regional segregation and economic imperialism. Globally, the U.S. claims hero status, while in reality it is cowardly rebuffing its humane responsibility to help those in need, who are fleeing violence, climate disaster, and extreme poverty that was in a large part caused by U.S. interventionism, militarization (under the guise of the “War on Drugs”), exploitation, and unfair trade agreements.
The U.S. imposes a nonreciprocal and toxic relationship with its neighbors, where its citizens can come here to Mexico and Latin America freely, but not vice versa. Instead, we should demand and build a society with genuine freedom of movement and no discrimination, and that systemises care as a way of operating, rather than these delusional forts of fear.
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