subtitle and description

Migration | Migración

Complements and extends https://americas.org/category/migration | Complementa y extiende https://americas.org/es/category/migracion


March 8, 2023

Biden administration asylum proposals echo Sessions and Miller

Peter Costantini ~ Seattle, Washington

The Biden administration has published a new proposed rule regarding immigration and asylum for public comment. Entitled “Circumvention of Lawful Pathways”, it has been characterized by many immigrant and human rights advocates as a new asylum ban. The rule would severely restrict asylum for most seekers at the southwest border by bringing back and expanding some of the worst abuses of the Trump administration.

Federal Register. “Circumvention of Lawful Pathways: A Proposed Rule by the Homeland Security Department and the Executive Office for Immigration Review”. Washington, DC: February 23, 2023.
https://govinfo.gov/content/pkg/FR-2023-02-23/pdf/2023-03718.pdf (official version)
https://federalregister.gov/documents/2023/02/23/2023-03718/circumvention-of-lawful-pathways

The Immigration Justice Campaign, a national coalition of numerous major organizations, has created a website allowing anyone to officially submit a comment on the proposed rule to the Biden administration. Anyone regardless of immigration status can submit comments, but they must be in English and submitted by March 27.

Immigration Justice Campaign - Add Your Comment: Tell the Biden Administration Not to Bring Back Trump’s Asylum Ban
https://immigrationjustice.quorum.us/campaign/44910

“Circumvention of Lawful Pathways” is designed to replace Title 42’s public-health-themed immigration ban when the COVID-19 pandemic emergency is terminated in May. The rule would reinstate a version of the Trump administration’s declaration of “Zero Tolerance”, which illegally restricted where asylum can be requested at the border. And for many asylum seekers, it would force them to request asylum in any country they pass through, which would be Mexico for most and Guatemala for many. Both of these are clearly unable to offer secure asylum to most migrants. Courts have already ruled against a similar “transit ban” proposed by Trump.

The previous administration’s immigration policies were architected primarily by two white sado-nationalists: Jefferson Beauregard Sessions III, Trump’s first Attorney General, and Stephen Miller, Trump’s senior advisor.

The Biden proposal does offer new pathways of access to asylum, but only for limited numbers of people from certain countries. This violates the principle that countries must offer fair opportunities to seek asylum based on personal cases, not nationality, to all people from all countries seeking protection. For other refugees at the border, the proposal requires use of a faulty cell-phone app riddled with problems, dropped untested into an often inaccessible communications environment. For the few who manage to connect, the app reportedly offers a crippling scarcity of appointments with immigration officials.

Responses from civil society

Many reactions from immigration and human rights organizations, media, and politicians have been scathing.

“’Cruel’, ‘illegal’, ‘immoral’, ‘deception’: a rain of criticisms of the Biden administration’s new immigration policy of asylum at the border”: this was Jorge Cancino’s headline on Univision, the Spanish-language TV network. “Angry and concerned, Democratic senators, attorneys, pro-immigrant organizations and activists are questioning Biden’s new asylum policy and warning that it seems to be a similar strategy to the one that Trump tried to implement in 2019, but that was rejected by the courts.”
- Jorge Cancino. Univision Noticias, 22 de febrero, 2023.
https://univision.com/noticias/inmigracion/cruel-ilegal-inmoral-decepcion-lluvia-criticas-nueva-politica-asilo-biden

Lee Gelernt, an attorney with the America Civil Liberties Union, told a Center for Migration Studies webcast that if the rule is adopted, the ACLU and allied organizations will bring legal action against it. Trump’s “first asylum ban barred asylum for people who entered between ports of entry. … We challenged that with our partners and it was struck down by the 9th Circuit Court of Appeals. … This Biden administration proposed rule … disfavors people entering between ports. And that aspect we believe would be vulnerable for the same reason: that Congress has made a decision that it doesn’t matter how you enter the United States, you must have access to asylum.” Another aspect of the Biden proposed rule, Gelernt said, resembles the Trump administration’s “transit ban”, which required migrants in transit to apply for asylum in third countries they travelled through before they could apply in the U.S. “That was also struck down by the Court of Appeals of the 9th Circuit unanimously. … The core rationale there was again that it was inconsistent with the laws Congress has enacted about asylum. … And so we think the Biden’s administration’s proposed rule is absolutely unlawful. We welcome additional legal pathways to apply for asylum. But they cannot be a substitute for the basic right and mechanism for applying for asylum, which is: you escape danger, you get to U.S. territory, … you have to be allowed to apply for asylum.”
- Center for Migration Studies. “Beyond Title 42: Further Restrictions on the Right to Asylum in the United States”. YouTube, March 1, 2023
https://youtu.be/cPI0IcTCHOU

“The National Immigrant Justice Center [a Chicago-based non-profit] … condemns the Biden administration’s proposed new rule that will dramatically limit access to asylum for people arriving at the U.S.-Mexico border. The rule — published with only a 30-day window for the public to provide comments — restricts asylum access only to people who were granted prior permission to come to the United States, are able to make an appointment to present themselves at the border using an online app, or previously sought asylum in a country or countries through which they transited.”
NIJC Executive Director Mary Meg McCarthy commented:
“The Biden administration's proposed rule violates U.S. obligations under international and U.S. human rights law which ensures access to protection for people fleeing persecution. United States federal law specifically states that the right to seek asylum is not contingent on a person’s status or the way they come to the United States; yet with this rule, the Biden administration is creating new requirements that will result in harm and death to people who need protection and must flee their homes quickly.”
- National Immigrant Justice Center. “NIJC Condemns Biden Administration’s New Asylum Ban At The U.S.-Mexico Border”. February 21, 2023.
https://immigrantjustice.org/press-releases/nijc-condemns-biden-administrations-new-asylum-ban-us-mexico-border

Immigration Hub, a national immigration policy organization:
“Yesterday, the Biden administration formally announced their proposal to institute an asylum ban. The proposal, commonly called a ‘transit ban,’ is a Trump-era policy that will severely curtail the rights of individuals and families fleeing persecution to seek asylum at our southern border. … The 153-page proposed rule undermines the immigration plan that President Biden campaigned on, jeopardizes asylum-seekers …. Bottom line: The Biden administration is setting itself up to face a chaotic border. This proposed rule will gut asylum, put lives at risk, and jeopardize President Biden’s vision for a functioning immigration system. Resourcing and reforming asylum is necessary; undermining America’s core commitment to offer asylum and safety to those fleeing persecution and violence is not.
- Immigration Hub. “President Biden's asylum ban will create chaos at the border”. February 23, 2023.
https://theimmigrationhub.org/memo-biden-asylum-ban-will-create-chaos-at-border

America’s Voice, a national immigration reform organization:
“Former President Trump and his Senior Advisor Stephen Miller tried to implement similar asylum bans to get rid of our asylum system altogether but multiple courts blocked these efforts because they were illegal. The new proposed asylum ban is not much different. It is unlawful and inhumane. Seeking asylum is a legal and human right.”
- America’s Voice. “Take Action: Say NO to Biden’s asylum ban”. E-mail from Juana Esquivel, info@americasvoice.org, March 3, 2023.

Bishop Mark Seitz, of El Paso, Texas, chairman of the U.S. Conference of Catholic Bishops’ Committee on Migration:
“[The Conference is] deeply troubled by this proposal, which perpetuates the misguided notion that heavy-handed enforcement measures are a viable solution to increased migration and forced displacement. … [The Conference has] “consistently rejected policies that weaken asylum access for those most in need of relief and expose them to further danger. Because that is the likely result of this proposal, we strongly oppose its implementation.“
-  Kate Scanlon. “Catholic immigration advocates condemn proposed Biden border rule”. Catholic Review, February 24, 2023.
https://catholicreview.org/catholic-immigration-advocates-condemn-proposed-biden-border-rule

U.S. Senators Alex Padilla (D-CA), Cory Booker (D-NJ), Ben Ray Lujan (D-NM), and Bob Menendez (D-NJ):
“Last month, when the Biden Administration announced it would soon be issuing a proposed rule, which in effect would function as a ‘transit ban’ on asylum seekers who don’t first apply for asylum in a transit country, we urged the Administration to abandon this idea. … We are deeply disappointed that the Administration has chosen to move forward with publishing this proposed rule, which only perpetuates the harmful myth that asylum seekers are a threat to this nation. In reality, they are pursuing a legal pathway in the United States. We have an obligation to protect vulnerable migrants under domestic and international law and should not leave vulnerable migrants stranded in countries unable to protect them. We urge President Biden and Secretary Mayorkas to reverse course and pave a better path forward that protects the right to asylum while addressing the real operational challenges at our Southern Border.”
- Joint statement by U.S. Senators Alex Padilla (D-CA), Cory Booker (D-NJ), Ben Ray Lujan (D-NM), and Bob Menendez (D-NJ):
https://booker.senate.gov/news/press/booker-menendez-lujan-padilla-joint-statement-on-biden-administrations-proposed-asylum-transit-ban-rule 

Other policy developments

In a related policy preview, Ted Hesson of Reuters reported that the Biden administration is “… developing a sweeping bill that would revamp the country's asylum system to speed up the resolution of claims in large-scale processing centers at the border …”. According to two sources, the bill might include different asylum procedures based on the nationalities of the migrants, favoring those from countries with higher records of approval. However, this would likely violate U.S. and international asylum law. And it could propose measures to speed up asylum processing, some of which have been criticized by immigrant justice groups as making asylum unattainable for the many migrants who face difficulties in obtaining supporting information from repressive or corrupt authorities. The bill might also impose the same retread of Trump’s rejected “transit bans” now being proposed as a rule.
- Ted Hesson. “U.S. officials prepping legislation to revamp asylum system”. Reuters, February 9, 2023.
https://reuters.com/world/us/us-officials-prepping-legislation-revamp-asylum-system-2023-02-09

And New York Times reporters Eileen Sullivan and Zolan Kanno-Youngs wrote: “The Biden administration is considering reviving the practice of detaining migrant families who cross the border illegally — the same policy the president shut down over the past two years because he wanted a more humane immigration system, officials familiar with the discussions said Monday. Although no final decision has been made, the move would be a stark reversal for President Biden, who came into office promising to adopt a more compassionate approach to the border after the harsh policies of his predecessor, former President Donald J. Trump.”
- Eileen Sullivan & Zolan Kanno-Youngs. “U.S. Is Said to Consider Reinstating Detention of Migrant Families”. New York Times, March 6, 2023.
https://www.nytimes.com/2023/03/06/us/politics/biden-immigration-family-detention.html

Other articles

Dara Lind. “How To Seek Asylum (Under Biden’s Proposed Asylum Transit Ban), In 12 Not-At-All-Easy Steps”. Washington, DC: Immigration Impact, February 22, 2023.
https://immigrationimpact.com/2023/02/22/steps-to-seek-asylum-biden-transit-ban

Raul Pinto. “CBP One Is Riddled With Flaws That Make the App Inaccessible to Many Asylum Seekers”. Washington, DC: Immigration Impact, February 28, 2023.
https://immigrationimpact.com/2023/02/28/cbp-one-app-flaws-asylum-seekers

Videos

Center for Migration Studies - Beyond Title 42: Further Restrictions on the Right to Asylum in the United States – YouTube
March 1, 2023
https://youtu.be/cPI0IcTCHOU
Kevin Appleby - CMS Interim Executive Director – Moderator
Panelists:
Lee Gelernt – ACLU
Eleanor Acer – Human Rights First
Dylan Corbett – Hope Border Institute

American Immigration Council – Webinar: Unpacking the new Asylum Transit Ban Details - YouTube
March 2, 2023
Dara Lind - Senior Fellow, AIC
Other AIC staff

The author

The first immigrant I ever met was my father, who crossed the ocean from Abruzzo to the Bronx as a boy of 12 in 1928. Since then, I’ve been involved with immigrants as a volunteer, friend and relative for most of my seven decades. For the past thirty years, I’ve also written about them – as well as Mesoamerica and the Caribbean, international economics, labor and human rights.