Biden Gets Trumpish on Asylum

Melanie Nathan, Jan 05, 2023,

The Biden administration today announced a series of measures that would, if implemented, dramatically reshape the asylum system in the United States and make it harder for those fleeing persecution to have safety. Effective immediately, the administration will expand use of the deadly and widely discredited Title 42 program and curtail asylum for Haitians, Nicaraguans, and Cubans who meet specific requirements while forcing them to remain in the dangerous conditions they’re attempting to flee. The administration also foreshadowed the creation of a regulation that could create longer-lasting restrictions to asylum.

President Biden is correct to note we need to have an orderly and humane system to allow people seeking safety to have their day in court. But the changes announced today prevent countless vulnerable and desperate people from even having the opportunity to plead their case, effectively slamming the our door on those who are most in need. ANNOUNCEMENT HERE

Melanie Nathan AHRC: Hope for Improvement Dashed – As the Biden Admin Announces a Revival of Trump Immigration Policy Directing African Human Rights Coalition, and as a country conditions expert representing asylum seekers from 19 African countries, I am privy to the critical importance of the U.S. to asylum seekers and refugees. The most marginalized of forcibly displaced people include LGBTQI+ asylum seekers and refugees from countries which demonize, criminalize, persecute and brutally violate the human right to sexuality and gender identity. President Biden’s announcement today adds to the impossibility and failure of the U.S. to fully play its part in mitigating the harms and providing solutions for LGBTQI+ people fleeing African countries. The announcement today instills concern and deep disappointment in the Biden administration.

There are so few paths for LGBTQI+ Africans to seek asylum in countries that provide safety and equality based on one’s sexuality and gender identity.

We are seeing more and more Africans so desperate to flee persecution and violence, that they have undertaken arduous and deathly journeys, crossing oceans and trekking through continents for many months, to reach our U.S. borders.

America should be creating pathways, not closing them down! There should be additional pathways, rather than the cutting off of pathways. There should be special, viable and affordable routes for this most vulnerable group. But instead they are effectively part and parcel of that which excludes. Now America closes the one door, the ONLY path available for some. This is anything but progressive and is inhuman and cruel.

ACLU: “President Biden correctly recognized today that seeking asylum is a legal right and spoke sympathetically about people fleeing persecution. But the plan he announced further ties his administration to the poisonous anti-immigrant policies of the Trump era instead of restoring fair access to asylum protections.”




The Administration is discussing only allowing in asylum seekers from Cuba, Nicaragua, and Haiti who have the money and know how to take a flight to the U.S., not to mention the time and ability.

In doing so, the Administration is demonstrating a disregard for the desperate and a fundamental misunderstanding of what it means to be an asylum seeker.

The Administration already did something similar on October 12, 2022 when it closed the borders to Venezuelan asylum seekers but allowed in 24,000 people who had 1) the knowledge – of the program process, English language, etc – and capacity to apply for humanitarian parole (including the ability to get a passport and travel to an airport), 2) a legal sponsor in the U.S. who could fill out and file paperwork on their behalf, and 3) a situation that was not so urgent that they could not take the time required to go through this process.

While it is a good idea to expand this humanitarian program to Cubans, Nicaraguans, and Haitians, it is not a good idea to accompany this with exclusions of asylum seekers at the border.

In fact, such exclusions would constitute unlawful discrimination based on nationality, would seriously put people’s lives in danger (there have been over 13,000 documented instances of violence in Mexico against children, adults and families expelled under Title 42), and would be a violation of our laws that protect asylum seekers, such as 8 U.S.C. §1158(a)(1).

The Administration cannot legally take away the right to asylum for a whole class of people, based on nationality or otherwise. Legal bars to asylum are, and must be, written into statute. It is not for the Executive branch to write legislation and it is important for our democracy to uphold this separation of powers.

The Administration is making three major errors regarding asylum seekers.

First, most of these asylum seekers are fleeing repressive dictatorships. In fleeing their governments, it is often difficult, if not impossible, to obtain a passport and go through government security in order to board a flight.

Even attempting to do so may result in the person being detained, interrogated, and tortured.

Second, the Administration is assuming that people can waiting in a country where they are being persecuted for the time it takes to apply and have their application decided. For people fleeing imminent harm, this is simply not realistic. In the last several years USCIS’s case processing backlog has ballooned by over 80% so either the Administration’s new process will be significantly slow or other pending cases will be further delayed as resources are shifted.

Third, the Administration is discriminating against asylum seekers who simply don’t know about this process, who may already be on their journey to the U.S. to seek protection, or who may already be in the U.S. such as many of our Venezuelan clients who had entered before the October 12, 2022 policy and who still remain in detention because they do not have access to this new humanitarian parole process.

Over 130 other groups expressed concern about this policy to DHS on October 14, 2022. And these issues are all in addition to the fundamental unfairness inherent in a program that only offers a legal pathway to those who are financially well-off and already have established connections in the U.S. to sponsor them. In fact, this proposal has much more in common with family-based consular processing. It is an admirable humanitarian effort to assist those suffering under repressive regimes. But it cannot be a replacement for our asylum processing at the border. It is critical that the Administration not cave in to political pressure and stand strong for people seeking protection at our border. We cannot abdicate the values our nation was founded on and must continue to be that beacon on the hill to those seeking freedom and safety.

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