Lip Service and Massive Restrictions Define Biden Administration Recent Policy on Asylum

Portland, OR —  In the first weeks of 2023, the Biden administration has announced several major decisions to the detriment of people in need of international protection. First, the Biden administration has pressured the Government of Mexico into an agreement to expand the deadly Title 42 policy to include people seeking asylum from Cuba, Haiti and Nicaragua. Second, the administration announced it plans to issue a Notice of Proposed Rulemaking to institute the same kind of unlawful asylum ban that former President Trump previously attempted to implement. Additionally, the administration announced its intent to expand the use of rapid deportation and begin the use of a cell phone application that raises myriad concerns about privacy, safety, discrimination and the right to seek asylum.

“The Biden administration’s new policies pose real and serious threats to people’s lives,” said Tess Hellgren, Deputy Legal Director at Innovation Law Lab. “Individuals seeking asylum have a legal and human right to request protection  in the United States. Empty promises and asylum bans will not keep them alive – a functional and humane asylum system with fully resourced, welcoming infrastructure will.”

The expansion of Title 42 to additional nationalities was in no way, shape, or form mandated by the Supreme Court. The Biden administration has voluntarily and proactively condemned up to 30,000 people per month to a high likelihood of murder, rape, kidnapping, arbitrary detention, extortion, and many other horrors for which migrants are targeted by organized crime and law enforcement alike in Mexico. 

The Notice of Proposed Rulemaking described by the administration will seek to revive the asylum ban that was previously found unlawful in federal court, and that was promoted by white supremacists under the Trump administration. The rule would render people presumptively ineligible for asylum in the United States if they did not first apply for asylum in countries they passed through on their way here. With the asylum systems of Mexico and Central America ranging from corrupt and inadequate to virtually nonexistent, in practice this rule would make it impossible for thousands of people to apply for asylum in the U.S. regardless of the dangers they face in their home country. The result will be death, torture, family separation and other horrors for people forcibly displaced from their homes. If the administration follows through with its plan to propose a new asylum ban, it will be aligning itself with some of the most nativist, anti-immigrant voices in the U.S. government. There is nothing safe, orderly, or humane about an asylum ban.

Furthermore, by expanding the use of expedited removal, which allows DHS to quickly deport someone who CBP says did not claim a fear of returning to their home country, the Biden administration is putting more power into the hands of an agency that has proven it is unwilling and unable to respect the rights of people seeking asylum. Overwhelming evidence shows that CBP officers routinely fabricate false statements during interviews with the people they detain. Listening to people fleeing danger requires training, humanity and dignity, not a fast-track system managed by the most corrupt federal agency in the country.  

The use of the phone app CBP One to seek asylum imposes yet another problematic barrier to the right to request protection from persecution. CBP Oneis not only a new form of metering with limited scheduling capacity, it raises grave concerns about the privacy and safety of people fleeing death threats. Not all people seeking asylum have access to cell phones or the internet. Even during the first few days of the implementation of CBP One at the San Ysidro Port of Entry, people seeking asylum in Tijuana were unable to access the app due to power outages at shelters related to heavy rain and flooding in the region. The U.S. government has the capacity to process people arriving to seek asylum and should do so for all who fear return to their home country. Forcing individuals fleeing their lives to jump through technological hoops and provide sensitive information restricts their right to seek asylum.

While the Biden administration has created a limited pathway for some citizens of Cuba, Haiti, Nicaragua and Venezuela to travel by plane to the United States, the creation of regular pathways should never be conditioned on the unlawful evisceration of the asylum system or the criminalization and marginalization of people fleeing danger. The fact that this option is described by the administration as a “legal pathway” in contrast to fleeing to the border shows that the administration has joined the far right in promoting the false narrative that seeking asylum is not legal. Seeking asylum is absolutely legal. Furthermore, the requirement that applicants for this pathway have a financial sponsor in the United States ensures it will be reserved for the most privileged, punishing others for poverty or lack of international ties. This requirement violates the universal human right to seek asylum.

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Innovation Law Lab, based in Portland, Oregon with projects around the United States, is a nonprofit organization that leverages law, technology and organizing to fight for immigrant and refugee justice. For more information, see www.innovationlawlab.org and follow us on social media: @innovationlawlab on Facebook & Instagram and @ThinkLawLab on Twitter.