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As U.S. borders reopen for vaccinated tourists, Black, Brown, and Indigenous asylum seekers remain stuck in danger, due to a long history of racist policies designed to exclude migrants and asylum seekers of color. The Biden administration continues to shut out asylum seekers (even when vaccinated) through its Title 42 expulsion policy, a policy invented by former President Trump’s advisor and white supremacist Stephen Miller which  expelled over a million people at the U.S. border. Lacking any basis in public health or science, Title 42 continues to perpetuate racist stereotypes about migrants and asylum seekers.

Meanwhile, the infamous Migrant Protection Protocols (or “Remain in Mexico”) program remains popular among segments of the Biden administration and may resume later this month despite a renewed attempt to terminate it on the basis of severe human rights violations.

At every turn, misguided border policies appear to win over protection for Black, Brown, and Indigenous asylum seekers, largely painting the border as a site to control. For four years, the Trump administration successfully — and dangerously — collapsed every matter pertaining to immigrants’ rights into a question of border enforcement. Their efforts were impactful.

Even policies largely unrelated to border entries continue to be scrutinized for their likelihood to incentivize new migrants, whose arrival is often portrayed through dehumanizing metaphors at the border. Against this narrative at the border, deterring migration masquerades as a realistic imperative. Compliance with humanitarian mandates, such as asylum, appears naïve, dangerous, and suddenly optional. But border control is not colorblind. In fact, today’s border policies are tangibly more repressive towards migrants and asylum seekers of color, across place and mode of entry.


Land arrivals: contrasting the U.S.-Mexico border and the U.S.-Canada border

Often, the U.S.-Mexico border monopolizes media attention. Arrivals at this border are scrutinized and receive extensive media coverage, painting these numbers as a “crisis” that must be managed. Recently, the world gasped in horror when DHS’ border patrol violently charged Haitians seeking protection in Del Rio, Texas. Shocking as it may be, it was not historically anomalous in the U.S. — not only for the disturbing echoes to anti-Black violence and enslavement, but also because deadly push-backs have been the perennial, bipartisan policy targeting Haitians.

White supremacy has been a hallmark of U.S.-Mexico border control for decades—from the death of Indigenous children in the custody of the U.S. Customs and Border Protection (CBP), the systematic kidnapping of children from their parents and caregivers, racially discriminatory prosecutions and pseudo-public health screenings, all the way to lynchings that continue to date.

In sharp contrast from the repression at the Southern border stands the U.S.-Canada border.   Unlike the U.S.-Mexico border, the stakes are perceived to be lower at the U.S.-Canada border. Agents only make a few dozen apprehensions per month. Even there, CBP racial profiling continues, with 98% of the apprehended people being classified as “Medium” or “Medium Brown.” In other words, U.S. land borders are a racial frontier for Black, Brown, and Indigious asylum seekers — with both low and high enforcement numbers geared towards halting the entry of non-white migrants.

These racial inequities continue throughout the pandemic. Recently, the Biden administration reopened land borders for vaccinated tourists largely from European nations, Mexico, and Canada.


Air and sea arrivals: a (quieter) ban on migrants and asylum seekers of color

Akin to the recent reopening of land borders to vaccinated visitors, the Biden administration also announced the end of country-based bans on vaccinated air travelers. A welcome development in some respects, the announcement also compounds inequities around access to vaccination for migrants and asylum seekers from nations with little to no access to vaccines. For example, this development is unlikely to help people from Haiti, whose vaccination rate hovers around 0.5% of the population.

Besides obvious economic barriers, air travel is rarely a viable route for people seeking refuge. Under the new Biden policy reopening air travel, a narrow carve-out would require people to first obtain a U.S. government letter “affirming the urgent need to travel” before a person can board the plane and seek asylum at a U.S. airport — an in-country screening that would keep people in unsafe conditions rather than facilitate their travel.

Importantly, air travel already has border enforcement baked-in. Under lesser known carrier sanctions, the U.S. and other rich nations have effectively outsourced CBP’s role to airline companies. These companies face hefty penalties (bearing the cost of deporting individuals, covering related expenses including accommodation or detention, and additional fines) if they allow the travel of an individual without travel documents or a visa. It is practically impossible to fly if you have neither in hand.

In sum, land borders are already racially policed to exclude migrants and asylum seekers of color, who also cannot turn to air travel as an alternative. Where does that leave sea travel? DHS Secretary Mayorkas recently answered that question: regardless of the dangers they face, asylum seekers traveling by sea will not receive protection in the United States. If not returned to the places they fled, asylum seekers will be sent to third countries.

Once again, this harsh stance towards sea migration is not anomalous. Shortly after codifying non-refoulement in the Refugee Act of 1980, the U.S. pushed back boats of Haitian asylum seekers while trapping tens of thousands more in Guantánamo Bay. Government officials argued that those who have not reached U.S. territory are not subject to protection — and therefore can be pushed back at will. The Supreme Court agreed, paving the way for Mayorkas’ recent announcement about maritime offshoring and fears of resumed jailing of Haitians in Guantánamo Bay.

Meanwhile, the U.S. is poised to loosen restrictions on other sea travel, such as cruises, favoring sea tourism once more over humanitarian migration — even when the former was an explicit driver of COVID-19’s spread in the United States. 

European and Canadian travelers cross into the United States with very few barriers or complications. Meanwhile, Black, Brown, and Indigenous people at the border are nameless people the U.S. government disappears en masse, through daily expulsions and deportations.

This continued disparate treatment can hardly comply with the Biden administration’s promise of racial equity. When the former president called Haiti and El Salvador “s---hole countries,” Roxane Gay heeded the following warning: “This is a painful, uncomfortable moment. Instead of trying to get past this moment, we should sit with it, wrap ourselves in the sorrow, distress and humiliation of it.” These words continue to resonate today, as Black, Brown, and Indigenous people are forcibly pushed out, killed, or brutalized in visible and invisible ways. U.S. border policies and practices have never been colorblind.

The hyper focus on the border ignores the systemic racism that fuels the push-back of migrants and asylum seekers of color; by the same token, it promotes policies such as deterrence and rapid expulsion as common-sense solutions, despite their white supremacist history and practice. As US borders reopen for vaccinated tourists, the Black, Brown, and Indigious asylum seekers remain stuck in danger. Compliance with domestic and international humanitarian protections requires us to sit with the sorrow, distress, and humiliation endemic to existing border policies.

Read NIJC and's report Pushing Back Protection: How Offshoring and Externalization Imperil the Right to Asylum

  • Chapter 1 (on the rampant use of carrier sanctions for air travel)
  • Chapter 4 (on the systematic and historic use of sea interceptions)
  • Chapter 5 (on the Migrant Protection Protocols and Title 42 expulsions)

Azadeh Erfani is a senior policy analyst at the National Immigrant Justice Center.