Under Biden, Cruelty Towards Asylum Seekers Persists

It is long past time for the Biden administration to honor its promises and establish a safe, fair and humane asylum process for people fleeing danger.

biden-immigration-asylum-women
A mother holds her child as asylum-seeking migrants rest in a migrant shelter on July 21, 2021, in Tijuana, Mexico. Even today, only a few people per day who are deemed the most vulnerable are being allowed to cross the border with Title 42 exceptions. Thousands of vulnerable asylum seekers remain stuck in Tijuana in precarious conditions. (Mario Tama / Getty Images)

In January President Biden commemorated the end of his first year in office, touting “enormous progress” on policy priorities ranging from COVID-19 vaccinations to infrastructure. Notably absent from Biden’s remarks was any mention of immigration.

As a candidate, Biden campaigned on an ambitious and progressive immigration agenda. Immigrant communities and allies celebrated his inauguration, many feeling hope for the first time in four years.

Biden took some initial steps to make good on his promises, issuing a series of executive orders in February mandating change. Advocates rejoiced in June when Biden’s Justice Department finally reversed a Trump-era policy that all but eliminated protection for people fleeing domestic violence and gangs. But on the whole, the Biden team has failed to break from many of Trump’s cruel and ineffective asylum policies.

For people seeking safety at our Southern border, the administration’s failures have been nothing short of catastrophic. One year in, the U.S. border remains fundamentally closed to asylum seekers. This is due largely to the Biden team’s decision to embrace the worst of Trump’s border policies: the blanket ban on asylum known as “Title 42.”

Conceived by Trump henchman Stephen Miller, the Title 42 policy weaponizes an obscure public health provision to override existing asylum law and shut the border under the pretext of pandemic concerns. Title 42 deprives asylum seekers of their right to apply for protection, allowing border officials to rapidly “expel” them with no legal process whatsoever. Human rights investigators have documented over 8,700 violent attacks against people expelled or turned back to Mexico since inauguration—nearly one incident for each hour of Biden’s term.

Human rights investigators have documented over 8,700 violent attacks against people expelled or turned back to Mexico since inauguration—nearly one incident for each hour of Biden’s term.

Those not pushed back to Mexico are placed on deadly deportation flights to the very countries they have fled. While images of border agents brutalizing Haitian families sparked outcry last September, ongoing Title 42 expulsions to Haiti have received little national attention. But in less than a year, the Biden administration has expelled more than 19,000 Haitians to a country reeling from a presidential assassination, widespread political violence, and devastating natural disasters.

The Biden administration has retained Title 42 over objections by more than 60 members of Congress and legions of public health experts, including former CDC officials. Even Dr. Fauci has pointed out that expelling migrants does not reduce the transmission of COVID-19. There is clearly no public health rationale for turning away even asylum seekers who have been vaccinated. Rather than “follow the science,” proponents of Title 42 rely instead on racist tropes that characterize migrants as vectors of disease.

As attested by the U.N. Refugee Agency and top legal advisors from within the administration, the Title 42 policy also violates the right of people fleeing persecution and torture not to be returned to danger, which is enshrined in the United States’ laws and international treaty obligations. In September a federal district court found Title 42 to be in clear contravention of U.S. law. But the Biden administration continues to aggressively uphold the policy’s legality in court.

To his credit, Biden took steps to end the odious Remain in Mexico program on his first day in office. This positive move by Biden has been challenged—successfully so far—by the states of Texas and Missouri.

The Justice Department has taken the opposite position on a different anti-asylum Trump policy, the odious Remain in Mexico program. To his credit, Biden took steps to end this program on his first day in office. His administration has acknowledged its due process defects and the severe dangers faced by asylum seekers forced to wait in Mexico during their immigration cases.

Unfortunately, this positive move by Biden has been challenged—successfully so far—by the states of Texas and Missouri, resulting in a court order to resume the program while litigation continues. But to the shock and disbelief of advocates, the administration has gone beyond the court’s ruling by expanding Remain in Mexico and accelerating its rollout.

The hypocrisy of condemning Remain in Mexico while defending Title 42—a policy that exposes asylum seekers to the very same dangers—reveals a lack of coherent moral leadership in the White House. President Biden’s stubborn refusal to restart asylum at the border appears to be motivated by his fears of political backlash. Putting optics before human lives is, of course, morally reprehensible. But it’s also a baffling political calculation. Anti-immigrant politicians and pundits continue to accuse Biden of promoting open borders, even as he pursues the most restrictionist border policies in recent history. This is not a constituency the president will likely ever satisfy.

The Biden administration would be better served by listening to the people who actually supported the proposals he campaigned on. As President Biden begins his second year in office, people seeking asylum and communities around the country are escalating the pressure. It is long past time for the Biden administration to honor its promises and establish a safe, fair and humane asylum process for people fleeing danger.

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About and

Kate Jastram is director of policy and advocacy at the Center for Gender & Refugee Studies at the University of California Hastings College of the Law. She has served as a legal advisor to the United Nations High Commissioner for Refugees and teaches refugee law and international law at Berkeley Law.
Brianna Krong serves as communications and advocacy coordinator at the Center for Gender & Refugee Studies, where she develops public education and advocacy strategies to advance the rights of women, children and LGBTQ asylum seekers in the United States.