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AILA Doc. No. 19032731 | Dated May 14, 2021
During the Trump administration, the ability to apply for protection in the U.S. at the southern border was severely restricted by a combination of policies, practices, and regulations. Together, they formed a barrier to asylum and due process for migrants that was unfair, inhumane, and a violation of long-established U.S. and international refugee norms.
This featured issue page provides updates, analyses, and other resources on these asylum and border policies along with AILA’s advocacy for the creation of a humane and fair border processing system for all individuals arriving at our southern border seeking safety.
AILA is urging lawful, humanitarian-based solutions to the seasonal increase in migrants, in particular children, at the U.S. southern border. As the Biden administration rebuilds an asylum system that was gutted by the prior administration, the only sensible choice is to transform how we receive and screen people at the border.
Instead of deterrence and enforcement only approaches, we should welcome people with dignity in line with American values. We must extract ourselves from the counter-productive “crisis at the border” news cycle. Instead, America must lead the way in building a sustainable migration system that meets the demands of the modern world and current events.
Long-standing United States law says that any person who is physically present in the United States or who “arrives” at the border must be given an opportunity to seek asylum. Yet, harsh deterrence tactics and administrative policies, such as those described below, have caused or exacerbated the denial of due process, separation of families, excessive detention, and imposition of severe punitive measures that should be halted.
On March 20, 2020, the Centers for Disease Control’s (CDC) ushered in exclusions at the southern border due to the COVID-19 pandemic. The order was issued pursuant to CDC’s public health authority under Title 42 and allows DHS to expel anyone – without normal safeguards for those fleeing persecution – if there is a “serious danger of the introduction of [a communicable] disease into the United States.” It exempted large groups of people - including citizens, LPRs, and anyone with valid travel documents – but did apply to people seeking asylum in the United States.
Title 42 has led to the practice of expelling asylum seekers, including vulnerable individuals and family units, to danger. Multiple experts have concluded that the CDC order has no scientific basis as a public health measure and urged rational, science-based measures to safeguard public health.
AILA believes that all decisions regarding children, including unaccompanied children, must be based on what is in the best interest of the child. Using deterrence tools like intentionally separating children from their parents has no place in civil society. Family unity must always be a guiding principle when responding to children and every effort should be made to expeditiously process children from the border to awaiting sponsors in the U.S.
Our asylum system needs reform for it to truly reflect America’s ideals as a place of life, liberty, and the pursuit of happiness. We need a system that is welcoming, effective, and timely in the receipt and adjudication of asylum applications. Importantly, our asylum system must comply with U.S. and international refugee laws.
The Trump administration left a legacy of proclamations and rules aimed at making as many people as possible ineligible for protection in the U.S. The Biden administration must grapple with how to review and decide whether to rescind, revoke, or issue new rules in their place.
As early as 2016, asylum-seekers have also been subjected to an illegal practice known as “metering.” Under U.S. law, any person who is physically present in the United States or who “arrives” at the border must be given an opportunity to seek asylum. Despite this clear command, CBP officers stationed at the southern border have turned away thousands of people who come to ports of entry seeking protection under the practice of “metering” (or “queue management”).
On November 19, 2019, DHS and DOJ issued an Interim Final Rule that allowed it to send individuals seeking asylum along the U.S./Mexico border to Guatemala or other countries with which the United States has entered into “Asylum Cooperative Agreements.” This rule applied to individuals who arrived at a U.S. port of entry, or enter, or attempt to enter the U.S., between ports of entry, on or after November 19, 2019. Approximately 1,000 people had been processed under the U.S.-Guatemala agreement by March 2020. President Biden’s administration suspended these agreements on February 6, 2021.
On October 7, 2019, the Trump administration began a pilot program called “Prompt Asylum Case Review,” in the El Paso area to speed up the asylum process for certain non-Mexican immigrants. At the same time, the administration rolled out the “Humanitarian Asylum Review Process,” a virtually identical program which applies to Mexican nationals. Approximately, over 5,000 were processed under these now defunct rapid deportation policies. These programs were suspended by Executive Order on February 2, 2021, though the policy memos were not revoked and some litigation is ongoing.
Cite as AILA Doc. No. 19032731.
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