A reversal of Trump’s asylum system is simply not enough — we must build our asylum system back better.
By Katrina Eiland
The United States has made a commitment — by law and by treaty — to protect people who come to this country fleeing persecution. But the Trump administration relentlessly attacked people seeking protection and the very concept of asylum. It is now nearly impossible for anyone to secure asylum, no matter how strong their claim or fear. President-elect Biden has the opportunity to restore our asylum system, as he has promised to do. Unwinding Trump’s harmful and unlawful policies will be just the start to making our system more efficient, fair, and humane. A reversal is simply not enough — we must build our asylum system back better.
The asylum system Trump unilaterally destroyed was in place since 1980 when Congress passed the bipartisan Refugee Act, enshrining in federal law the nation’s international commitment to provide safety for people fleeing danger. These laws allow anyone who has been persecuted because of their race, religion, nationality, political opinion, or membership in a particular social group to request asylum, which if granted allows them to live and work in the U.S. and get on a path to citizenship. Under our current law, individuals who arrive at the border and express a fear of returning to their home countries are either placed directly in a process to decide their asylum claims or screened further to determine if they could ultimately be granted asylum. If they pass, they are placed in the asylum process. Either way, they wait in the U.S. while a judge decides their case.
After Trump, this system is in shambles. People seeking asylum confront an alphabet soup of new anti-immigrant policies that ensure no one gets a fair shake. Biden must work swiftly to end these harmful policies and restore our asylum system. First, he must end the disingenuously named “Migrant Protection Protocols” or MPP, under which people seeking refuge are forcibly sent to Mexico, where they languish in dangerous conditions sometimes for more than a year. Refugee camps in Mexico are now filled with people sent there by the U.S. with no consideration of their asylum claims. Many of these individuals and families have experienced violence, extortion, and kidnapping, and some have even been killed. The entire concept of asylum is that it is an urgent request — that coming to the U.S. is critical to one’s safety — so being forced to remain in danger indefinitely is contrary to asylum’s core purpose.
Among those trapped in Mexico are the ACLU’s clients in Nora v. Wolf, who have been forced to wait indefinitely in Tamaulipas, one of the most violent and lawless areas in the world. One family was kidnapped twice; the mother and her eldest daughter were gang raped over a period of days by cartel members. And despite the egregious harms they’ve suffered, the Trump administration refused to let them wait for their asylum hearing in the U.S. Biden must end MPP immediately and ensure that the people subjected to the policy are able to pursue their claims in the U.S.
Second, Biden must rescind the “Title 42” order — CDC’s regulations and orders that permit hasty expulsion of asylum seekers and unaccompanied children, unlawfully denying them any chance to seek humanitarian relief like asylum. Under Title 42, young teenagers like J.B.B.C., who witnessed a murder in Honduras and fled after gang members threatened him, are summarily sent back to danger. The three federal judges who have examined the Title 42 order all agree that it is illegal. And although the Trump administration tried to cloak the order in public health justifications, numerous public health experts denounced the policy and explained why it does not protect this country’s health. CDC’s own experts reportedly objected to the policy and refused to support it in court; it was implemented only after the White House pressured the CDC to accept it. As public health experts have explained, the government has the means to safely process people seeking protection while safeguarding the health of U.S. residents.
Third, President-elect Biden must act quickly to end Trump’s two illegal asylum bans. The first bans anyone who entered the U.S. between ports of entry, even though U.S. laws state that it does not matter how a person enters if they are fleeing danger. The second bans anyone who travels through a third country to reach the U.S., unless they first apply for and are denied asylum in a third country — impacting nearly every non-Mexican asylum seeker. It is a naked attempt to deny as many people as possible, regardless of their need for protection under our laws. While the ACLU and partners quickly blocked the first asylum ban, the second ban had disastrous consequences for people seeking asylum before a judge vacated it in June 2020. But, the Trump administration has doubled down, issuing a new version of the second ban at the eleventh hour that takes effect just a day before inauguration. Biden must quickly rescind both bans.
These are just the tip of the iceberg. There are numerous disastrous anti-asylum policies that Biden must promptly stop, including:
- Trump’s “Asylum Cooperative Agreements” (ACA) with Guatemala, Honduras, and El Salvador and the related policies that force people to seek asylum in those countries instead of in the U.S. These ACA policies not only violate our laws, but they are also in bad faith, as thousands of people in those countries are fleeing persecution there as well. Biden must terminate the deceitful ACAs and rescind the related policies that allow people to be deported to other countries without regard to their safety.
- PACR/HARP, Trump policies that hold asylum seekers in crowded, unsanitary Border Patrol facilities that unlawfully block access to lawyers during their initial screening interview, depriving people of basic due process and a fair chance at asylum. Indeed, it is unsurprising that people held under such inhumane conditions are far less likely than other asylum seekers to pass their screening interviews. Biden should put a stop to these harmful programs and ensure everyone can access their attorneys.
- The massive new asylum rule issued in December that upends nearly every aspect of asylum law, including longstanding “political opinion,” “particular social group,” and “persecution” definitions, as well as other core elements of asylum eligibility and the legal process. It is designed to block most people seeking protection. Biden should work diligently to rescind this disastrous rule and restore our longstanding asylum standards.
Biden does not have an easy task ahead of him — in fact, there are already trumped up warnings of border “surges” in an effort to make reinstituting our asylum system politically harder. It will take courage, diligence, a commitment to protecting people in danger as our laws allow, and respect and deference to experts in asylum who have been dealing with the consequences of Trump’s policies for four years. Biden has promised these solutions already; it is all of our jobs to make sure he follows through.
Katrina Eiland is the Managing Attorney, California Office, American Civil Liberties Union
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