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U.S. law enshrines the protections of the international Refugee Convention, drafted in the wake of the horrors of World War II. The law provides that any person “physically present in the United States or who arrives in the United States … irrespective of such [person’s] status, may apply for asylum...”

People seeking asylum in the United States come in search of safety from persecution, torture, and sometimes death. But upon their arrival, they face a new odyssey of navigating complex U.S. immigration laws and an increasingly restrictive environment that bars asylum seekers from winning protection. More and more, asylum seekers also face push-backs over protection, while the U.S. evades its obligations under domestic and international laws.

Under the Trump administration, these challenges grew exponentially. Since 2017, the federal government has unleashed relentless attacks on the U.S. asylum system. Despite vowing to protect the right to asylum, President Biden has made few changes since taking office — and many of those changes have stalled in federal courts.

 

Recommendations to Repair the U.S. Asylum System and Hold the Biden Administration Accountable

Protecting the right to asylum requires dismantling Trump’s systemic attacks, as well as the pre-existing barriers that the prior administration built upon, and building new systems centered around justice and compassion. To begin, President Biden must: 

  • End the Weaponization of Public Health | Read more
    The COVID-19 pandemic has been used to ban and push back asylum seekers. 
  • Protect Immigrant Youth | Read more
    Immigrant children have long been at the front lines of the broad and comprehensive assault on immigrants and asylum seekers. 
  • Stop Offshoring Asylum | Read more
    The U.S. has a disturbing history of forcing asylum seekers onto ill-equipped nations, rather than abide by its obligation to process them under domestic and international law. This includes pushing asylum seekers back to Mexico and Central American nations. 
  • End Due Process Violations | Read more
    Asylum seekers are frequently barred from seeking protection on technicalities while navigating a system in a language they do not speak and appearing without an attorney.
  • End the Carceral Approach to Asylum | Read more
    Any policy to detain asylum seekers, as a matter of course, finds its roots in mass incarceration and disproportionately targets Black, Brown, and Indigenous immigrants. Such policies should not form the basis for any legitimate government programs today.

NIJC's timeline highlighting the major events comprising the Trump administration’s assault on asylum seekers has moved.

 

End the Weaponization of Public Health 

The COVID-19 pandemic has been used to ban and push back asylum seekers.

Previous Administration: 
Under the Trump Administration, the Centers for Disease Control used a 75-year old quarantine law to close the border, resulting in the summary expulsion of hundreds of thousands of adults, families, and children since March 2020. Following this policy, dubbed a “Stephen Miller special” by former Trump officials, the Trump administration proposed a rule that would label virtually all asylum seekers “dangers to national security” on public health grounds. 

Current Status: 

  • Far from ending Trump’s public health expulsions, the Biden administration has broken records in expelling adults, families, and children back to harm. President Biden has more than doubled expulsions since coming into office, resulting in nearly a million expulsions from March 2020 to July 2021. 
  • Biden’s continued summary expulsions have caused thousands of reported rapes, assaults, kidnappings, and murders of asylum seekers. The Biden administration has also resumed expelling Haitian asylum seekers, despite political turmoil and violence following the Haitian president’s assassination, compounded with a recent earthquake and devastating storms.
  • The United Nations’ Refugee Agency has called on the Biden administration to end these expulsions. Alarmingly, Biden’s continued expulsion policy appears to incentivize other nations to violate international law, following reports that the U.S. expelled asylum seekers to Southern Mexico, before Mexican officials pushed them back to Central America. 
  • Public health experts, including former CDC officials, continue to find no public health rationale for those expulsions and called out the racist premise of presenting migrants as vectors of disease.
  • Despite ongoing litigation from asylum seeking families, the Biden administration has refused to end this mass expulsion policy. The Biden administration only exempted one group (unaccompanied children), after a federal judge found their expulsion unlawful under Trump.  Asylum-seeking families won a temporary exemption process for families and then a judicial stay of Title 42 expulsions after the Biden administration showed no sign of ending its Title 42 expulsion policy. This stay is slated to shield families from expulsions as of October 1, 2021. [Huisha-Huisha v. Mayorkas]
  • In a rare glimpse of hope, the Biden administration is planning to modify or rescind the Trump-era rule that labeled asylum seekers as dangers to national security.


NIJC Recommendations:

Read More: 

 

Protect Immigrant Youth

Immigrant children have long been at the front lines of the broad and comprehensive assault on immigrants and asylum seekers. 

Previous Administration: 
Treating children as both scapegoats and guinea pigs, the prior administration mounted a campaign to villainize immigrant children, keep them in indefinite detention, and incarcerate their parents and sponsors. Systemic separation of children from parents, paired with the mass prosecution of parents, caused life-long trauma to immigrant children.

Current Status: 

  • The Flores settlement is a binding agreement providing guidelines for the care of immigrant children who are in U.S. government custody, reached in 1997 as a result of a class action filed on behalf of detained children. Largely gutted under Trump, a federal court of appeals has upheld key elements of an injunction to continue Flores protections by the end of 2020; upon taking office, the Biden administration has yet to commit to full compliance with Flores and has implemented the broad use of unlicensed facilities, where children are vulnerable to abusive and deeply alarming conditions
  • The Biden administration has diminished, but not formally ended the use of family detention, which often ran afoul of the Flores Settlement Agreement. Instead, the administration has continued to detain families in hotels. NIJC advocates, instead, for the government to invest in nonprofit shelters where families would have ready access to services (including representation).
  • On the plus side, the Biden administration has taken constructive steps towards the reunification of hundreds of families separated under the Trump administration and rescinded an interagency agreement that weaponized family reunification and kept unaccompanied children detained indefinitely. Permanency for separated families will require Congressional action, such as the passage of the Families Belong Together Act.
  • The Biden administration entered into a secretive contract with a juvenile jail in Virginia to detain youth in ICE custody. ICE has a record of detaining youth indefinitely, across administrations. 

NIJC Recommendations:

  • Reinstate protection afforded under the Flores Settlement Agreement
  • Promote transparency and oversight in detention centers where children are being held to ensure their health and safety is not being put at risk.
  • Transition away from the detention of families in any form and toward reception shelters, where families can safely access services and allow families full due process protection to pursue their asylum claims.
  • Install a robust firewall that protects unaccompanied children’s private information from their use by Immigration and Customs Enforcement (ICE).
  • End the detention of children and young adults in ICE custody.

Read More: 

Stop Offshoring Asylum 

The U.S. has a disturbing history of forcing asylum seekers onto ill-equipped nations, rather than abide by its obligation to process them under domestic and international law. This includes pushing asylum seekers back to Mexico and Central American nations.  

Previous Administration: 
To deter asylum seekers, the Trump Administration entered into unsafe third country agreements with Honduras, El Salvador, and Guatemala. The Migrant Protection Protocols (MPP) program forced over 70,000 adults and children to remain in dangerous situations in Mexico (despite having no roots or caregivers there) while their cases were pending in US immigration courts. Tens of thousands more were forced to wait outside the U.S. under specious pretexts that the U.S. lacked capacity. Finally, the Trump administration continued prior policies of intercepting and pushing back asylum seekers apprehended at sea.

Current Status: 

  • Fortunately, the Biden Administration announced that it is suspending cooperative agreements with El Salvador, Guatemala, and Honduras. Still, there are concerns that the administration’s new regional border “management” initiatives, which entail building migrant processing centers and boosting asylum infrastructure in Central America, will recycle prior offshoring mechanisms. Meanwhile, Biden and his cabinet members are pressuring southern neighbors to militarize their borders and repeatedly telling migrants “don’t come” to the U.S., despite their right to seek asylum.
  • Although the Biden administration began winding down MPP and processed over 13,000 asylum seekers with active MPP cases, litigation halted their efforts and mandated a reimplementation of the unlawful and deadly program. Rather than terminate it again based on the extensive record of atrocities, the Biden administration has reportedly contemplated creating its own version of the Trump-era program. [Texas v. Biden]
  • A federal court declared that the practice of “metering” (or routine turnbacks of asylum seekers at the border) unlawful. Tens of thousands were forced to wait months or years to exercise their right to seek asylum at U.S. ports of entry. [Al Otro Lado v. Mayorkas]
  • DHS Secretary Mayorkas recently issued a stark warning to Cuban and Haitian refugees seeking protection at sea: regardless of the dangers they face, none will be processed for asylum in the United States. If not returned to the places they fled, asylum seekers will be sent to third countries. 

NIJC Recommendations:

  • Terminate the Migrant Protection Protocols (MPP) program.
  • Prompt and safe pathway for admission into the US for those subjected to “metering,” or fabricated waiting lists that Customs and Border Protection (CBP) used to push back tens of thousands of asylum seekers.
  • Suspend any agreement with Mexico or Central American nations to militarize borders or process or detain asylum seekers outside the United States.

Read More: 

 

End Due Process Violations 

Asylum seekers are frequently barred from seeking protection on technicalities while navigating a system in a language they do not speak and appearing without an attorney.

Previous Administration: 
The Trump Administration codified rushed asylum processing curtailing access to judicial review, putting asylum seekers at risk for deportation without due process. Yet asylum seekers already face near-insurmountable barriers, as many do not have counsel, are detained, traumatized, and lack access to the necessary evidence. 

Current Status: 

  • The Trump rule which expanded expedited removal nationwide is currently in effect. The Biden administration has not indicated that it plans to rescind this expansion.
  • Similar to other programs, the White House has announced that they are reviewing expedited removal to determine if “modifying, revoking, or rescinding” is the appropriate course of action. However, President Biden recently proposed a regulation that would expand expedited removal and subject the vast majority of asylum seekers to rushed, unfair proceedings. While this review process is taking place, asylum seekers can continue to be removed without judicial involvement. 
  • The Biden Administration has announced that it will subject families to expedited hearings in what has already become a chaotic, backlogged, and alarming process that lacks basic safeguards, such as the right to counsel. 
  • The Biden administration continues to defend various rules proposed and finalized under Trump, seeking appeals on injunctions won by asylum seekers and their advocates.

NIJC Recommendations: 

  • Provide asylum seekers and other vulnerable populations with guaranteed counsel and protect  their right to fair hearings and appeals processes.
  • Rescind the Trump rule that expanded expedited removal nationwide.
  • Exercise discretion NOT to place individuals apprehended at the border into expedited removal. proceedings, where right to counsel is curtailed and asylum seekers are hastily deported.
  • Move toward more robust due process protections for asylum seekers’ instead of rolling back current protections. 
  • Rescind and forbear implementation of Trump regulations related to appeals, increased fees, and expediting asylum application filings.

Read More

End the Carceral Approach to Asylum

Any policy to detain asylum seekers, as a matter of course, finds its roots in mass incarceration and disproportionately targets Black, Brown, and Indigenous immigrants. Such policies should not form the basis for any legitimate government programs today.

Previous Administration
The Trump administration implemented a “Zero-Tolerance” policy in 2018 that all arriving migrants, which includes asylum seekers, were to be criminally prosecuted for illegal entry, and prioritized criminal prosecutions for both unauthorized entry or reentry, dramatically increasing such prosecutions by nearly 50 percent from fiscal years 2017 to 2019. The Trump administration also used detention as deterrence and punishment against asylum seekers.

Current Status: 

  • The Justice Department rescinded the Zero-Tolerance directive in January 2021, ending the guidance behind the Trump administration’s family separation program. However, the Biden/Harris administration continues to rely on Section 1326 prosecutions, and still preserved the de facto prosecutorial practice of prioritizing entry and reentry prosecutions. Under this administration, CBP also has launched a “Repeat Offender initiative” that will lead to an increase in prosecutions of asylum seekers and everyone subject to Title 42 expulsions.
  • Under President Biden, ICE detention has nearly doubled. The Biden/Harris administration has yet to commit to ending the use of immigration detention (policy brief, renewed calls here), despite overwhelming evidence that detention kills, disparately impacts Black & Brown migrants, and particularly harms asylum seekers.
  • The Biden administration has closed two ICE jails rife with abusive conditions (including the forced sterilization of women). However, the administration has extended contracts with private prison companies and entered into new agreements, including an agreement to detain immigrant children in Virginia. ICE detention continues to be the site of life-threatening conditions, medical abuse, and discrimination
  • Although President Biden has committed to end the use of private, for-profit federal prisons, he has not extended such commitment to for-profit ICE detention. In fact, some private federal prisons may turn into jails for immigrants and asylum seekers; ICE has already started to contract with private companies to take over closing prisons. 

NIJC Recommendations: 

  • End criminal prosecutions for unauthorized entry and reentry violations, including for vulnerable populations and asylum seekers. The Biden Administration, which has the discretion to de-prioritize prosecutions for migration-related offenses, must uphold past commitments to end mass prosecutions for migration-related offenses. The Administration must also end CBP’s “Repeat Offender Initiative,” and any programs that prioritize prosecutions for unauthorized entry or reentry, and should support Congressional efforts to repeal Sections 1325 and 1326 of the U.S. Code.
  • Shut down detention centers and end detention contracts, including with private corporations who profit from the incarceration of immigrants. Instead of jailing them in unsafe and unsanitary conditions, we urge the Biden administration to parole asylum seekers into the US, given that over 90% of asylum seekers have relatives in the US with whom they can safely stay.

Read More

O.A. v. Trump
Case Summary O.A. v. Trump, which NIJC is currently litigating in collaboration with Human Rights First (HRF) and Williams & Connolly LLP in the U.S. District Court of the District of Columbia, challenges the Trump administration’s November 2018 ban on access to asylum for anyone who enters…
F.H.-T. V. HOLDER
F.H.-T. v. HOLDER June 2, 2014 F.H.-T. (a pseudonym used to protect him and his family) has asked the Supreme Court to overturn the Government’s process for deciding exemptions from the so-called “terrorist bars” which precluded him from obtaining asylum.  F.H.-T. is an Eritrean man whom…
DAVILA V. HOLDER
May 27, 2014 Ms. Davila is a Mexican national seeking asylum because she received death threats and faces persecution due to her demands for government accountability in connection to cartel violence.  Ms. Davila’s two teenage nephews were killed in Ciudad Juarez during a massacre by cartel…

Recommendations

To uphold the U.S. obligation to provide refuge for families, adults, and children seeking freedom from persecution, NIJC recommends:

  • Protect due process and eliminate summary removal and expulsion procedures that prevent asylum seekers from pursuing existing protections. All asylum seekers should have the opportunity to present their case to an immigration judge, including those who have previously been deported.
  • Appoint counsel to everyone in immigration proceedings. Access to counsel is critical to help people, especially children, individuals in detention, and vulnerable populations, navigate the complex immigration system.
  • End U.S. practices of turning back asylum seekers or tasking other nations with either detaining or pushing back asylum seekers in violation of international law.
  • End immigration detention, including the detention of asylum seekers. Arriving asylum seekers should be released on parole or recognizance and supported in the community with their loved ones while their cases proceed. 
  • End criminal prosecutions for unauthorized entry (8 U.S.C. § 1325) and reentry (8 U.S.C. § 1326), which violate the rights of asylum seekers, deny due process rights, and discriminate along racial and ethnic lines. The administration should phase out the use of such prosecutions, ensure that involvement in the criminal legal system does not preclude access to asylum, and support Congressional efforts to repeal 8 U.S.C. Sections 1325 and 1326.