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