Rebuilding the U.S. asylum system will not be without its challenges. But the Biden-Harris administration can meet this moment and, more importantly, it must. Here’s how it can start.
When major news media called the 2020 election for Joe Biden, asylum-seekers on both sides of the U.S. border rejoiced. “I can’t wait to run into [my children’s] arms,” Sandra Andrade, a Salvadoran woman, told reporters. “Because of Señor Biden I’m going to get to do this.”
Rebuilding the U.S. asylum system for women like Sandra will not be without its challenges. But the Biden-Harris administration can meet this moment and, more importantly, it must. Communities around the country are calling for the incoming administration to deliver justice and safety for refugees. When lives are at stake, there can be no other choice.
Undoing the Cruelty of the Trump Administration
Over the past four years, the Trump administration made it virtually impossible for anyone to find protection in the United States. Our cherished, decades-old asylum system has been left in tatters through a web of callous and illegal policies that have all but shut down access to the asylum entirely.
Trump’s administration stacked the deck against asylum-seekers at each step—when they came to the border, they were turned away, sent right back into the lion’s den. If by some grace they were able to get their case before a judge, it was almost certain they would lose and be ordered deported.
Even now, many are locked up in remote detention centers, far from family and legal services, and forced to appear in court alone. They face immigration judges who are being pressured to rush asylum cases and deny them en masse.
Further tipping the scales against asylum-seekers, former Attorney General Bill Barr promoted judges with sky-high asylum denial rates to the Justice Department’s immigration appeals court.
Electoral defeat did not hamper the former Trump administration’s efforts to slam the door on asylum-seekers. In the waning days of the Trump era, the administration continued to issue policy memos, weaponizing bureaucracy to reject asylum applications with minor errors, or even blank spaces in response to wholly irrelevant questions. Are you a child who has neglected to write “N/A” where a complicated form has asked you to identify your spouse or children? Are you a woman from a repressive society who has failed to report schooling that you never completed? Tough luck. Try again—if it’s not already too late.
And on its way out the door, the Trump administration was intent on finalizing a sweeping rule that would codify many of its worst policies—all but ending asylum and making it that much more difficult for the incoming administration to set things right. The draft rule was met with widespread condemnation and a staggering 88,000 public comments. Under normal circumstances, it would have taken well over a year to review the public’s feedback, make necessary revisions, and publish a final version. However, this administration eschewed procedural requirements and bulldozed this rule through at record speed—on Human Rights Day no less.
We’ve sued and recently won a district court injunction temporarily blocking the rule from taking effect—but litigation continues.
How Can the Biden-Harris Administration Take Swift Action to Protect Asylum-Seekers?
While President Biden has pledged to address these cruel policies head-on, for the past two months anti-immigrant voices and pundits from across the political spectrum have cautioned against immediate action, encouraging asylum-seekers and advocates to lower their expectations before the new administration even entered office.
Asylum experts and advocates have offered detailed blueprints for the incoming administration to not only reverse the damage inflicted by Trump, but to truly “Build Back Better.”
Whatever policy choices are made, any comprehensive plan on asylum must include three central components:
1. Resume asylum processing and reopen border to new arrivals.
First, the incoming administration must resume asylum processing and alleviate the abject suffering at the border. Making good on his promise, President Biden has already stopped processing asylum-seekers under the Remain in Mexico policy—a huge victory. And now, those who have been stranded in dire conditions under this policy must be swiftly permitted to enter the United States and continue pursuing their cases in safety, with family and friends—not in dangerous detention facilities.
The incoming administration must also reopen the border to new arrivals and immediately halt “Title 42” expulsions of asylum-seekers to danger under the pretext of public health concerns. Leading experts at the CDC have vehemently objected to the expulsions policy, recognizing it as a bald-faced attack on immigrants that does nothing to curb the spread of COVID-19.
Many other public health specialists have debunked the Trump administration’s rationale for such expulsions, confirming that asylum-seekers can be safely processed during the pandemic. And this policy, too, has already been enjoined in federal court.
2. Ensure asylum-seekers get a fair shot in court.
Second, the Biden-Harris administration must ensure that, once they have the chance to present their claims, asylum-seekers receive their fair day in court. This will require depoliticizing the immigration courts and reversing restrictive decisions from former Attorney General Barr that have sought to rewrite our laws by executive fiat and undermine the asylum cases of domestic violence survivors, children targeted by gangs, and others fleeing life-threatening violence.
Courts have already called out these decisions as contrary to the law and a new attorney general—likely Merrick Garland—must repudiate them fully.
3. Elevate the rule of law.
Finally, the incoming administration must elevate humanity and rule of law over the racist, xenophobic fearmongering that has characterized Trump’s demagoguery. Trump and his top officials implemented their anti-immigrant agenda to a steady drumbeat of dehumanizing rhetoric and propaganda. Facing dual public health and economic crises, they chose to scapegoat asylum-seekers while turning their backs on the American people.
The immigration related executive orders signed and bill proposed by President Biden on Day One are a step in the right direction. Now is the time to keep up the momentum. The Biden-Harris administration must reject the inhumanity of the Trump era, uphold the dignity of immigrants, and pursue policies that makes us all safe, no matter where we come from.
On the campaign trail, Biden repeatedly promised to end Trump-era border policies, restore access to asylum for domestic violence survivors, and reestablish our moral standing in the world as a nation that welcomes refugees.
Vice President Harris has also been a stalwart supporter of immigrants’ rights, co-sponsoring legislation that would strengthen protections for refugees in U.S. law. The nomination of Alejandro Mayorkas to lead the agency tasked with oversight of the asylum system and enforcement demonstrates the incoming administration’s commitment to a humane and orderly approach to immigration.
The chaos and cruelty of the status quo is untenable. The Biden-Harris administration now has an opportunity to create a system guided by law and morality. And it not only has the support of the American people but also the full weight of the federal government at its disposal to do so.
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