As asylum seekers push Biden for help, fresh DHS regulations complicate system

Untangling the Trump administration's asylum restrictions may prove difficult for President-elect Joe Biden, who has to manage new DHS regulations — even as hundreds of people have waited some for nearly a year to seek protection in the United States.

In the final days of the Trump administration, the Department of Homeland Security has submitted or finalized regulations that will make seeking asylum along the border more difficult. The first, submitted in June and finalized on December 11, makes it more difficult for asylum seekers to pass initial credible fear screenings and enter the asylum process.  

The second policy, finalized last week, allows officials to block asylum requests on the grounds that asylum seekers could be a "danger to the security of the United States" if they have traveled through a country suffering from a coronavirus outbreak. 

The changes are but two of nearly 400 executive actions taken on immigration since January 2017, the Migration Policy Institute noted in a July report.  The Trump administration has "dramatically reshaped" the U.S. immigration system, the group said, "spanning everything from border and interior enforcement, to refugee resettlement and the asylum system" the Deferred Action for Childhood Arrivals, as well as "the immigration courts, and vetting and visa processes." 

"Much of the White House's immigration agenda has been realized in the form of interlocking measures, with regulatory, policy, and programmatic changes driving towards shared policy goals. Though these largely administrative actions could, in theory, be undone by a future administration, this layered approach, coupled with the rapid-fire pace of change, makes it likely that the Trump presidency will have long-lasting effects on the U.S. immigration system," MPI said. 

Additionally, the Trump administration has spent the nine months expelling people from the United States under Title 42, a policy put in place on March 21 by the CDC that allows U.S. Customs and Border Protection agents to immediately expel migrants into their country of last transit without processing them. 

The Trump administration has claimed the order was implemented to prevent the spread of COVID-19 in border facilities and in the United States more broadly, by immediately removing people who "potentially pose a health risk, either subject to previously announced travel restrictions or because they unlawfully entered the country to bypass health screening measures." Almost 260,000 people were expelled across the Southwest border under Title 42 in fiscal year 2020. 

In October and November, CBP has expelled an additional 119,000 people. Despite these measures, overall apprehensions are climbing. In Tucson Sector, apprehensions of single adults have risen 202 percent in October and November, compared to the same time period during the previous fiscal year, and so too has the number of children traveling without a parent or guardian, which is up 29 percent. 

Across the southwest border, the number of unaccompanied children has increased 48 percent, while single adults is up 165 percent. 

The measures come as the Biden administration has promised to begin processing some of the 26,000 migrants whose cases are still pending, and who remain stranded in Mexico under the "Remain in Mexico" policy, also known as the Migrant Protection Protocols. Biden has vowed to quickly end MPP—which has blocked more 69,000 immigrants from seeking asylum in the U.S., using Mexico's northern border cities as waiting rooms while cases are adjudicated slowly. 

Before Title 42 was put into place, only about 523 people received relief under the MPP program from its inception in December 2018 to October 2020, while 28,040 lost their case because they were removed in absentia, according to CBP statistics. Another 10,000 cases were terminated, CBP said. 

The largest share of pending cases are based in the immigration court in El Paso, and this includes migrants who entered into MPP from Nogales, and now must travel to Juarez for their chance to see a judge in an El Paso courtroom.

While MPP moves slowly, and Title 42 means many migrants are immediately sent back, the Trump administration sought new rules to narrow asylum even further. Both rules were submitted to the federal register over the summer, and despite significant push-back in public comments, administration officials have implemented each rules which go into effect just days before Biden's inauguration. 

The first rule "streamlines" the process and could prevent many who have legitimate fears of persecution from "ever being able to make their case before a judge," said the National Immigration Forum. And, because asylum seekers often "lack knowledge of our system, the regulation’s requirement that they must affirmatively ask for review from an immigration judge is inconsistent with our desire to ensure those who deserve protection are able to get it." 

Under federal law, to apply for asylum in the U.S., you must be physically present in the United States, and "may apply for asylum status regardless of how you arrived in the United States or your current immigration status," as the U.S. Citizenship and Immigration Services explains.

"Fleeing life-threatening danger for lasting safety is a herculean effort—attaining that safety should not be, and the U.S. government certainly should not be erecting impassable legal walls blocking asylum entirely," said Benjamin Johnson, Executive Director of the American Immigration Lawyers Association. "This new rule raises the bar for asylum screenings and eventual long-term relief so impossibly high that it effectively shutters the U.S. asylum system." 

"This rule eviscerates a needed lifeline to those fleeing danger and reiterates a common false narrative promoted by the Trump administration: that border security can only be attained through the gutting of the asylum system. Border security and a humane approach to those seeking safety can and must work in tandem," said Jennifer Minear, president of AILA. 

"We know the Biden-Harris administration is committed to protecting asylum seekers and urge the President-elect and his team to act swiftly to reverse the immense damage this final-hour rule is certain to wreak on those in need of safety in the United States," Johnson said. 

A legal challenge has already been filed by multiple groups, including one lawsuit led by Human Rights Watch in federal court in Washington D.C., while another coalition of groups, led by Immigration Equality and Lambda Legal filed in San Francisco. 

The second rule, submitted by DHS and the Justice Department in July, asylum could be denied to immigrants, including unaccompanied children, if DHS officials considered them "a danger to the security of the United States" based on "emergency public health concerns generated by a communicable disease." 

"Unfortunately," the agency explained in the Federal Register, children arriving in the U.S. without parents or guardians, "are not immune from pandemic disease, and those bringing such a disease to the United States would have the same impact on the security of the United States as any other aliens seeking asylum." 

"The final rule further allows DHS to exercise its prosecutorial discretion regarding how to process individuals subject to expedited removal who are determined to be ineligible for asylum and withholding of removal in the United States because they are subject to the danger to the security of the United States." the agency explained. 

To make matters more difficult for migrants traveling through Central America, on Dec. 15, DHS said that the United States and El Salvador finalized an agreement for the Asylum Cooperative Agreement. Signed in September 2019, the agreement means that certain migrants requesting asylum or similar humanitarian protection at the U.S. border will be transferred to El Salvador to seek protection in El Salvador.

Completed under Acting Secretary of Homeland Security Chad F. Wolf, the agreement will force migrants to seek protection within El Salvador. Along with El Salvador, Guatemala and Honduras have made similar agreements under the ACA. 

"Implementation of the Asylum Cooperative Agreement between the United States and El Salvador is a critical step in the establishment of a truly regional approach to migration, and, more specifically, to the offer of protection to those migrants who are victims of persecution," said Wolf. "I am grateful to the Government of El Salvador, and to President Bukele personally, for their commitment to the implementation of the ACA, and for the resulting expansion of avenues for protection available to persecuted migrants in the region."

DHS said that in 2019, more than 71 percent of all the migrants—largely families traveling with children—who were taken into custody by U.S. Border Patrol  were from El Salvador, Guatemala, and Honduras. "All these countries have now reached agreements with the Trump Administration to confront irregular migration; and all three ACAs have now entered into force," DHS officials said. 

Biden aides said that ending MPP would take time. "The transformation that is really needed at the border isn’t going to happen overnight," transition officials told reporters during a conference call. 

Susan Rice, Biden's domestic policy adviser, and Jake Sullivan, who is slated for national security adviser, told the Spanish news agency EFE that the administration is "inheriting a deeply damaged, non-functioning infrastructure, and processing capacity has to be restored and expanded in large part, especially in light of the current pandemic," according to a translation of the interview. 

MPP was successfully challenged in the 9th Circuit of Appeals in March, and the Supreme Court agreed to hear the case. Either the Biden administration will abandon MPP, or the Supreme Court may do it for them by agreeing with the lower court that the program "violates" laws that obligate the U.S. government to protect people under "non-refoulement," or the principle established as part of international agreements that countries cannot forcible return refugees or asylum-seekers to a country where they may be persecuted. 

"Migrants and asylum seekers should not at all believe the people in the region who are selling the idea that the border will suddenly be wide open to process everyone on the first day. It will not be so," Rice said. "Our priority is to reopen asylum processing at the border in accordance with the ability to do so safely and protect public health, especially in the context of covid-19. This effort will begin immediately, but it will take months to develop the capacity that we will need to fully reopen." 

Sullivan cautioned people that despite the damage from hurricanes Eta and Iota and the region's "historic" challenges, "given the pandemic and the large number of migrants already waiting in northern Mexico, now is not the time to embark on the dangerous journey to the United States," he said. "It will take months until we can fully implement our plans." 

Johnson with AILA praised the Biden team's comments. 

"The Trump administration weaponized bureaucracy against the most vulnerable: those seeking protection from persecution. The policies they put in place harmed immigrants, families, and undermined American values," he said. "They dug a deep hole during four long years and it will take resources and dedication to climb back out and move America forward on a better path." 

AILA has called on the administration to release asylum seekers at the U.S. southern border rather than "using inhumane and costly detention facilities, which have become deadly petri dishes during COVID-19." 

And, this follows the recent spending bill, which requires U.S. Immigration and Customs Enforcement to spend more money on Alternatives to Detention.

People waiting to seek asylum in the U.S. face a long road, said Alexandra Miller, a managing attorney with the Florence Project, in September. 

"And by the time they're able to enter the United State, if they are indeed able to enter the United States and ask for asylum, the fundamentals of asylum could be completely changed for instance," Miller said. "If the public health bar against asylum goes into place and Mexico is deemed a public health threat in any migrant whether they're from Mexico, or transit through Mexico, they could be categorically barred from a time." 

"Which is ironic considering like United States has more and more cases," of COVID-19, the novel coronavirus, than Mexico. The U.S. has 18 million confirmed cases of COVID-19, while Mexico has 1.3 million confirmed cases. 

Earlier this month, nearly 100 migrants marched through downtown Nogales, Sonora and asked the Biden administration to again accept asylum claims, end expulsions under Title 42, and immediately eliminate the Migrant Protection Protocol. They also asked CBP to end the waitlists or "metering," and the separations of family members who are seeking asylum. 

This was the third such event in four months. 

The group also asked the Biden administration to "guarantee" the right to seek asylum, especially for vulnerable people, including pregnant women and unaccompanied minors. "Many women have seen directly that simply for being pregnant, border authorities dissuade them from or present obstacles to their pursuit of asylum," the group said. 

"We recognize that there is a great deal of work needed to achieve a fair and humane migration system in the United States, and we ask that with every decision you make, that you consider the human rights of migrants under international law, which was made to protect people fleeing persecution," the petition reads. "Asylum seekers are committed to complying with the health measures put in place to protect us all, both for themselves and for US citizens, measures that should not paralyze the asylum process." 

"You know in the context of a global have pandemic when people are worried about their own health, their own livelihoods, it becomes very easy to forget about the most vulnerable among us," Miller said. "Asylum seekers are not a threat to the United States. These are all individuals who have personal stories, who have survived great difficulty, even to get to the point where they are to be at the border of Mexico." 

"You hear in their testimonies this persevering faith that the United States is a place with rule of law and protections that are enforced and matter in a place where they'll be safe, despite all of the news coming out of the United States and despite all of the impacts on asylum protections over the past few years," she said. 

"I would hope that people in the United States want asylum seekers to see a little what warm welcome actually looks like, and that's a vision of America that they still believe in. And, it's an America that can still exist," Miller said.