Why the Biden Administration Needs to Preserve the Right to Asylum

Immigration policy has become a third rail in U.S. politics, especially for Democrats who have been cast unfairly as indifferent to border security and even supportive of “open borders.” The scope of the challenge is formidable. Federal authorities apprehended a record number of more than two million people last year when they tried to cross illegally into the U.S. Against this backdrop, the Biden administration announced plans on February 21 to sharply limit the right to apply for asylum.

In a draconian proposal, Biden is seeking to foreclose avenues to apply for asylum for people who have entered the U.S. without prior legal authorization. This new policy violates the most basic principle of refugee law—namely, that a person should not be forcibly returned to a country where they will face persecution, regardless of the circumstances under which they fled. This right is codified in U.S. law and through the U.S. ratification of the UN Refugee Convention standard.

The Biden administration is conflating two policy imperatives. The first is the need to improve border security. Since 2021, a dramatically increasing number of migrants have been trying to cross the U.S.-Mexican border, an influx that has strained federal immigration enforcement efforts. The administration has devoted significant resources to enhancing border security. It has added border patrol officers, deployed new surveillance technology, increased the use of expedited removal, and scaled up anti-smuggling operations, among other strong measures.

And yet the influx continues. It includes large numbers of people who have made their way to the U.S.-Mexican border from countries throughout the Western Hemisphere, especially Nicaragua, Venezuela, Haiti, and Cuba. Most of them are fleeing poverty and the general insecurity that is pervasive in their home countries, and as a result most fail to meet the strict criteria for being granted asylum.

There is a different, more humane path.

The second policy imperative is to preserve the right to seek asylum in the U.S., upholding a law that has its roots in the Holocaust and U.S. commitments made after World War II to provide refuge for those fleeing persecution. Some of those fleeing from places like Venezuela, Nicaragua, and many other countries, would qualify for asylum under the strict terms of the Refugee Act of 1980, which requires applicants to make an individualized showing that they have a “well-founded fear of persecution” in their home country based on their race, religion, nationality, political opinion, or membership in a particular social group.

The problem the administration confronts is that the asylum system has been hampered by political controversy and bureaucratic dysfunction for a long time. Former President Donald Trump made it a point, during his presidential campaign and throughout his administration, to question asylum seekers’ integrity and challenge the basic tenets of refugee law. His administration experimented with a slew of policies of questionable legality designed to keep asylum seekers away from US territory, and it significantly undermined a system that had been developed under both Democratic and Republican administrations. Trump also decimated the administrative capacity of the U.S. government by dramatically reducing personnel working on these cases. The system has yet to recover.

Today, there are almost 1.6 million asylum cases awaiting resolution. About 750,000 are cases where people have sought asylum in removal proceedings pending before immigration courts that are housed in the Justice Department. Before Trump came into office the backlog of these cases was about 175,000. The remainder of asylum cases involve those who have come into the country legally, perhaps as visitors or students, then applied for asylum, and are waiting for administrative hearings before the United States Citizenship and Immigration Services (USCIS), an agency of the Department of Homeland Security.

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Viewing this backlog in the context of the larger migration crisis, the Biden administration is attempting to close the door, almost entirely, to asylum seekers who don’t meet burdensome new requirements. If an asylum seeker traveled through another country before reaching the U.S., they now would need to show that the other country denied them asylum—a process that can take years and may be futile.

The regulations also require asylum seekers to register their intention to apply for asylum and make appointments with border officials through a poorly functioning online app before trying to seek protection at the border. This is often an unreasonable expectation for people trying to escape death or serious harm, or for those without access to mobile phones. Immigrants who enter the U.S. without pre-registering would need to demonstrate “exceptionally compelling circumstances” for doing so, rather than simply meeting the current standard of credible fear of persecution.

The administration plans to put these regulations into effect on May 11. The timing is no coincidence, as this is the day President Biden has determined the U.S. will end federal COVID restrictions. This means that the federal government will no longer be able to rely on a public health provision, known as Title 42, which has given authorities sweeping latitude to prevent people arriving at the southern border from crossing into the U.S., even if they are fleeing from life-threatening persecution.

Fearful that lifting Title 42 will lead to a mass influx, the administration is now desperately seeking to eviscerate the right to apply for asylum as part of its broader efforts to dissuade migrants from coming north. Once the new regulations go into effect, asylum seekers who arrive at the U.S. border without having complied with the pre-registration requirements will be turned back summarily to Mexico. Once there they will be subjected to grim conditions in camps on the Mexican side of the border. There is a different, more humane path.

The Biden administration should more vigorously seek Congressional authorization to increase resources to long-underfunded asylum offices at USCIS and immigration courts at the Department of Justice and make further needed structural reforms. These steps would reduce the backlog and make the system more efficient while also serving those most in need of protection. If properly staffed, the asylum system can meet both objectives without putting undo strains on the larger immigration system.

If the administration pursues its current plan, thousands of genuine refugees fleeing persecution from countries like Ethiopia, Syria, or Myanmar, as well as those from Venezuela or Nicaragua, will not be able to apply for asylum and will face likely persecution when they are forced to return home. By taking this heavy-handed approach against asylum seekers, rather than making bolder efforts to reform the system, the administration will put some of the most vulnerable people on our planet in life-threatening danger.

Michael Posner is the Jerome Kohlberg professor of ethics and finance at NYU Stern School of Business and director of the Center for Business and Human Rights. Follow him on Twitter @mikehposner.

Reprinted with permission from Forbes.

Lead image: Peg Hunter / Flickr