Once upon a time—on the campaign trail and again in the early days of his administration—President Biden promised to reject the harmful policies of the Trump administration and restore and protect the rights of asylum seekers. That pledge has now officially gone up in smoke.
“Immigration is essential to who we are as a nation, our core values, and our aspirations for our future. Under a Biden Administration, we will never turn our backs on who we are or that which makes us uniquely and proudly American. The United States deserves an immigration policy that reflects our highest values as a nation.”
This pledge appears on theBiden Harris campaign website from 2020.
The reality today: On February 21, 2023, the US Departments of Justice and Homeland Security announced a proposed regulation that would effectively block access to asylum at the US-Mexico border for many (probably most) people seeking humanitarian protection.
This is terrible news for the countless people seeking safety and protection in the US, who would effectively have the door slammed shut on them. This move to put up barriers for people fleeing for their lives recalls the xenophobic, racist policies of the Trump administration. In fact, it recycles two of Trump’s most harmful anti-refugee policies.
The Biden administration developed this policy to replace the horrendous Trump administration policy of Title 42, which used the pandemic as an excuse to take away asylum rights. Title 42 is set to expire when the COVID emergency ends in May.
In a lawsuit that Oxfam was part of, a federal judge ruled that Title 42 was illegal, but the Supreme Court interjected. Without a doubt, this new policy is much of the same, and it will cost lives and send asylum seekers back to danger.
Unlawful, discriminatory, dangerous
Under the proposed regulation, asylum seekers will be presumed ineligible for asylum if they enter the US between ports of entry or if they arrive at a port of entry without a previously scheduled appointment—unless they applied for and were denied protection in a country they traveled through en route to the US. There are a few exceptions to this rule (e.g., medical emergency; victim of severe trafficking) but, in practice, these safe harbors will be unavailable to the majority of asylum-seekers. Unaccompanied minors are exempt from the rule.
This asylum ban is a new spin on the entry and transit ban policies employed by the Trump administration, which were repeatedly found to be unlawful; the Biden regulation differs slightly in technical ways, but the impact on asylum seekers is virtually the same: many will be summarily deported, and some will be refouled.*
The regulation is discriminatory and will have a disparate impact on asylum seekers who do not have the financial means to purchase a plane ticket or access to a visa (in other words, it will favor wealthy asylum seekers, more often white). Because the rule applies only to the southern U.S. border, it will disproportionately harm those who travel on foot or by vehicle through Central and South America, who are predominantly Black, brown, and indigenous people. It will also allow for nationality-based discrimination in access to asylum via country-specific parole programs.
While the regulation attempts to create an exemption where it would result in family separation, it seems to only apply to families traveling together. Asylum allows for asylees to bring their immediate family members to the US, but withholding of removal and Convention Against Torture protections (the only forms of protection most asylum seekers would be eligible for under the regulation) do not. Unlike asylum, withholding of removal and CAT protection offer no pathway to citizenship nor protection against deportation—leaving recipients in long-term legal limbo.
As in the case of Title 42, we at Oxfam are fighting against this policy by talking to both members of Congress and members of the Biden administration, urging for this policy to be rescinded in its entirety. To this end, we’re also participating in the effort to submit regulatory comments to DOJ and DHS outlining the illegality and harm of this policy.
Oxfam contacted hundreds of congressional offices last week when the regulation was released, urging members of Congress to speak out publicly and advocate with the administration against the rule. Members of Congress are also organizing an effort to submit official regulatory comments opposing the rule. We will continue to do sustained and direct outreach to policymakers urging the administration to reverse course.
As we noted when the ban was announced, “The right to seek asylum is a cornerstone protected under both US and international law and does not depend on whether someone arrives by foot or airplane, their path of travel, or whether they have the financial means to purchase an airplane ticket.”
When asylum seekers arrive at our borders, we need to meet them with humanitarian assistance, community care, and welcome. Erecting new, unlawful barriers to protection will only make matters worse.
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*Refoulment is the unlawful practice of sending refugees and asylum seekers back to their own or another country where they are likely to face persecution.