Biden’s proposed asylum rules are a misguided attempt to deter migrants

FILE - In this July 17, 2019 file photo, a U.S. Customs and Border Protection officer checks the documents of migrants before they are taken to apply for asylum in the United States at International Bridge 1 in Nuevo Laredo, Mexico.  On Wednesday, July 24, 2019, a federal judge in San Francisco will hear arguments in a challenge to the new Trump administration policy that requires asylum seekers crossing a third country en route to the United States to first apply for protection in the other country.  The lawsuit was filed by the American Civil Liberties Union, the Southern Poverty Law Center and the Center for Constitutional Rights as they seek a temporary restraining order to block the plan.  (AP Photo/Marco Ugarte, File

In this July 17, 2019 file photo, U.S. Customs and Border Protection officers check the documents of migrants seeking asylum in the United States at International Bridge 1 in Nuevo Laredo, Mexico. (Associated Press)

of the Biden administration proposed rules for migrants seeking asylum would greatly limit people fleeing ravaged countries from seeking protection in the United States. The rules would limit who can apply for asylum by creating burdensome requirements that would limit eligibility at a time of historic global migration.

It is a misguided, inhumane attempt to deter migrants from arriving at the US-Mexico border, which will make it more difficult, if not impossible, for asylum seekers to exercise their right to show up at the border and seek asylum.

The Department of Homeland Security and the Department of Justice issued the guidelines last week ahead of the potential end to the use of Title 42, a Trump-era public health order that allows US border officials to deport most migrants seeking asylum. The COVID-19 public health order ends on May 11, and with it possibly the Title 42-based policy, which cited the threat of the coronavirus as a basis for not allowing entry for migrants. Biden tried to end this policy, but failed prevented from doing so primarily due to legal challenges from Republicans.

The administration’s proposed rules would require migrants to first seek asylum in another country while en route to the United States, or to make an appointment through CBPOne appi.e. an app from the US government fraught with problems. (It requires an agreement for each person, making it difficult for families, who must then decide to split up or wait indefinitely until they secure places for each family member.) Migrants who do not meet the conditions would be out of able to apply for asylum in the U.S. The only exception would be for migrants who can show extraordinary circumstances, such as a medical emergency or extreme and immediate threat to their life or safety, such as an imminent threat of rape, kidnapping, torture or murder. The guidelines are impractical for people fleeing persecution and effectively remove legal avenues for them to seek asylum.

The Biden administration’s proposed rules would replace one inhumane policy with another despite the president’s lift to create a more orderly asylum process that would not cause unnecessary human suffering. The United States needs to control entry at its borders, but it should do so humanely.

Under international law, people have the right to seek asylum if they fear persecution or harm in their home country because of their race, religion, nationality, political opinion or membership of a particular social group. The entire process of applying for asylum is rigorous and approval can take years due to immigration court backlogs. In 2022, US authorities given less than 14% of asylum applications. Those who are not eligible for asylum may be deported.

The challenge for US officials is to find a way to deal with an unprecedented number of migrants seeking asylum due to increasing political and economic instability, particularly in undemocratic countries such as Venezuela, Haiti, Cuba and Nicaragua. Unstable conditions in these countries have driven migrants from their homes, accounting for a large part of a historical 2.2 million Border Patrol encounters, defined as apprehensions or deportations along the U.S.-Mexico border in fiscal year 2022. By comparison, the Border Patrol had about 1.2 million encounters per year from fiscal years 1983 to 2006. Those numbers dropped significantly between 2011-2018 to less than 400,000 encounters, in part as U.S. authorities increased border security .

Certainly, Biden’s difficulties in dealing with security on the US-Mexico border have been exacerbated by the increase in migrants. He inherited an immigration system hampered by heavy-handed policies enacted during the Trump presidency that effectively shut the door on most asylum seekers and separated migrant children from their parents upon arrival in the United States, including Title 42. But he is now embracing a similar strategy with limitation of eligibility with the proposed asylum rules. It’s a plan that pretty much repeats one asylum ban imposed by the Trump administration that was struck down by the courts.

Biden officials perversely quote the new rules, which would take effect after a 30-day public comment period and expire in two years, as a form of deterrence, noting that Border Patrol concerns eased once migrants were told Section 42 was in power. They say these policies protect migrants by removing the incentive to travel to the United States, but this reasoning ignores the fact that migrants will continue to attempt near-impossible feats to seek safe shelter and jobs.

Biden faces serious political pressure to effectively deal with the historic number of migrants at the border. Ultimately, it is up to Congress to pass legislation to overhaul an overcrowded, inefficient immigration system. In the meantime, he can help create a more orderly system for processing asylum seekers by expanding the capacity of border officials to process arriving migrants and immigration courts to process cases quickly. That would be a more humane way of fulfilling the country’s legal obligation to asylum seekers than temporarily expelling them from the country or refusing to process their case.

This story originally appeared in Los Angeles Times.

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