Biden is making a shambles of the right to seek asylum

The Biden administration recently announced that its border plan is “working as intended.” It was referring to Biden’s restrictive new policies that took effect with the ending of Title 42, the COVID 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.

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.

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.

Stacy Brustin is a Professor of Law and Director of the Immigrant and Refugee Advocacy Clinic at the Catholic University of America.