Featured Issue: Border Processing and Asylum

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.

Solutions to the Humanitarian Challenge at the Border

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.

AILA Policy Briefs

• Policy Brief: The Biden Administration and Congress Must Guarantee Legal Representation for People Facing Removal – January 15, 2021
  • AILA and the Council issued a policy brief calling upon the Biden administration to expand federally-funded legal representation programs for people facing removal, arguing that legal representation ensures due process and efficiency, reduces the detention of immigrants, and reduces court backlog.
• AILA Policy Brief: Effective Border Management Begins with Improving the U.S. Asylum System – June 13, 2019
  • AILA issued a policy brief with solutions to the recent increase in migration at the U.S. southern border, which will prove to be more effective in providing a fair, orderly, and efficient system for processing asylum seekers and other migrants.

American Immigration Council Fact Sheets

• A Guide to Title 42 Expulsions at the Border - March 29, 2021
  • The United States has long guaranteed the right to seek asylum to individuals who arrive at our southern border and ask for protection. But since March 20, 2020, that fundamental right has been largely suspended.
• Community Support for Migrants Navigating the U.S. Immigration System - February 26, 2021
  • This fact sheet draws from original data gathered from hundreds of community organizations around the country and provides a snapshot of the extent of available services that help migrants navigate the complexities of the U.S. immigration system.
• An Overview of U.S. Refugee Law and Policy - January 8, 2020
  • The United States has long been a global leader in the resettlement of refugees and the need for such leadership remains enormous.
• The High Cost and Diminishing Returns of a Border Wall - September 6, 2019
  • The fact is that building a fortified and impenetrable wall between the United States and Mexico is unnecessary, complicated, ineffective, expensive, and would create a host of additional problems.

Press Release/ Statements

• Facts About the Current Situation at the Border - March 23, 2021
  • The nation has turned its attention to the current situation at the U.S.-Mexico border, including the rise in immigrant children in U.S. government custody. Much of the conversation has focused on a supposed surge in arrivals under the Biden administration, but the current increase began well before President Biden took office. Here are five facts about the border.
• Biden Administration Continues Taking Necessary Steps to Bring Our Immigration and Asylum Policies Back in Line with Our Values, However More Needs to Be Done - February 2, 2021
  • AILA welcomed actions taken by the Biden administration that will continue to ameliorate the damage done over the past four years and move our immigration and asylum policies toward fairness and justice. AILA leaders, however, cautioned that much more needs to be done.
• AILA Publishes Immigration Road Map for Incoming Biden-Harris Administration - November 10, 2020
  • AILA released recommendations on immigration reform and called upon the incoming Biden-Harris administration to take swift action to fix the immigration system because “nothing short of a comprehensive plan is needed to restore American values and our standing in the world.”

Media

• Fox NewsNow features an interview with AILA Executive Director Benjamin Johnson, in which he discusses the possibilities of immigration reform and the situation at the southern border.
• Video: Interview with Greg Chen Regarding the Border - March 10, 2021
  • Fox NewsNow features an interview with AILA Senior Director of Government Relations Greg Chen about the situation at the U.S.-Mexico border. Mr. Chen discusses what is driving people to migrate to the United States and what the administration is doing and should do to address the situation.
• Video: A Vision for America as a Welcoming Nation - December 18, 2020
  • AILA issues comprehensive recommendations calling upon President-Elect Joe Biden to implement a powerful new vision for immigration. AILA stands ready to work with the incoming Biden-Harris administration to get the job done.
• AILA Quicktake #262 – Asylum and the Southern Border—An Update - April 8, 2019
  • Recent reports of asylum seekers arriving in greater numbers at the southern border have resulted in claims by the administration that the federal government cannot manage the arrivals without more resources. Greg Chen, AILA's Senior Director of Government Relations, discusses the changing situation at the southern border and explains why what we really need is a better management of the available resources.

  Reports

  • What Immigration Issues Do Americans Hold Sacred? A Psychological Journey Into American Attitudes Toward Immigrants - February 18, 2021
    • Understanding how deeply we hold our immigration stances may matter as much as what our stances are.
  • Detaining Families - A Study of Asylum Adjudication in Family Detention - August 2018
  • The Perils of Expedited Removal: How Fast-Track Deportations Jeopardize Asylum Seekers - May 9, 2017

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  Border Processing

  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.

  Title 42 Expulsions and Restrictions Based on COVID-19

  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 Resources and Advocacy

  • AILA and Partners Urge White House to Change Course After Violations to Asylum Rights and Refugee Laws on Haitians – September 21, 2021
  • AILA Urges the Biden Administration to Immediately Course Correct on Rapid Expulsion of Haitians – September 20, 2021
  • AILA President Allen Orr Responds to Today’s Court Decision on Title 42 – September 16, 2021
  • Migration and Human Rights on the U.S. Mexico Border: A Proposal for a Binational Approach to Politics and Logistics – April 19, 2021
    
    • A binational coalition of 92 Mexican and U.S academics who study the border issued a series of recommendations to the governments of their respective countries in order to “avoid a humanitarian crisis.” Top of the list is phasing out Title 42.
  • American Immigration Council: A Guide to Title 42 Expulsions at the Border - March 29, 2021
  • Clip from AILA University Video Roundtable, Update on Southern Border Issues, recorded on March 19, 2021:
    
    
  • Sign-on Letter to President Biden urging rescission of Title 42- February 2, 2021
  • American Immigration Council Special Report: The Impact of COVID-19 on Noncitizens and Across the U.S. Immigration System - March-September 2020
  • Resource Center: 2019 Novel Coronavirus (COVID-19) - Continuously Updated

  Litigation

  • District Court Orders Border Officials to Stop Expelling Certain Families under Title 42 (Huisha-Huisha, et al. v. Mayorkas, 9/16/21)
  • Stay Lifted in ACLU Class-Action Lawsuit Challenging the Trump Administration on Behalf of Unaccompanied Minors Facing Removal (PJES v. Pekoske)- Last updated January 29, 2021
  • ACLU Files Lawsuit Challenging Border Closures During COVID-19 on Behalf of Honduran UAC Facing Imminent Removal (J.B.B.C. v. Wolf, et al.) – Last Updated June 9, 2020

  Government Announcements and Information

  • CBP Issues Pregnancy and Childbirth Guidance for Individuals in CBP Custody – August 18, 2021
  • USCIS and EOIR Notice of Proposed Rulemaking on Consideration of Protection Claims by Asylum Officers and Credible Fear Screening
  • DHS Announces Process for Identifying Humanitarian Exceptions to Title 42 - May 12, 2021
  • HHS Interim Final Rule Allowing CDC to Suspend Introduction of Persons from Designated Countries or Places (85 FR 16559, 3/24/20)
  • Notification of CDC Order Suspending the Introduction of Persons from a Country Where Communicable Disease Exists (85 FR 16567, 3/24/20)
  • CDC Order Suspending Introduction of Certain Persons Through Land Ports of Entry (85 FR 17060, 3/26/20)

  Media

  • The World: Public Health Experts Push CDC to End Title 42 for Migrants, Asylum-Seekers (Audio) - March 25, 2021
  • The Washington Post: There’s No Migrant ‘Surge’ at the U.S. Southern Border. Here’s the Data. - March 23, 2021
  • Asylum: Last Week Tonight with John Oliver (HBO): John Oliver explains how the Trump administration has handled asylum seekers over the past four years, why it matters, and what we can do about it. – October 26, 2020
    
    

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  Treatment of Children at the Border

  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.

  Government Announcements and Information

  • Detention Watch Network and Immigrant Legal Resource Center: Child Detention: Frequently Asked Questions – April 29, 2021
  • Office of Refugee Resettlement Unaccompanied Child Parent Hotline
    
    • The Office of Refugee Resettlement (ORR) provides a UC Parent Hotline/ Línea directa de los padres para los niños looking to locate children currently in ORR custody.
  • CRS Report on the Trump Administration’s “Zero Tolerance” Immigration Enforcement Policy – February 2, 2021
  • DOJ OIG Issues Report on DOJ's Planning and Implementation of the Zero Tolerance Policy – January 14, 2021
  • Department of Health and Human Services: Latest UC Data - FY2021 - Continuously updated

  Media

  • Migration Policy Institute: Hampered by the Pandemic: Unaccompanied Child Arrivals Increase as Earlier Preparedness Shortfalls Limit the Response - March 2021
  • USA Today: Cruelty at the Border Is Not the Same as Strength or an Effective Immigration Strategy - March 29, 2021
  • The Washington Post: Biden Officials Fall Behind in Race to Add More Shelter Space for Migrant Teens and Children – March 12, 2021
  • Jonathan Blitzer analysis in The New Yorker, “Biden Has Few Good Options for the Unaccompanied Children at the Border” - March 9, 2021

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  Efforts to Undermine Asylum Protection

  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.

  Asylum Bans and Metering (“Queue Management”)

  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”).

  AILA Resources

  • Practice Alert: State of Play Following Presidential Executive Order on Comprehensive Regional Framework and Asylum - February 5, 2021
  • AIC Factsheet: Metering and Asylum Turnbacks - March 8, 2021
  • AILA Policy Brief: Proposed Asylum Rule Blocks Asylum Seekers from Humanitarian Protection - January 22, 2020
  • AIC Factsheet: The Cost of Immigration Enforcement and Border Security - January 20, 2021
  • Resources on Litigation Related to Challenging CBP's Unlawful Practice of “Metering” Asylum Seekers – October 30, 2020
  • AILA and the American Immigration Council Submit Comment Opposing "Asylum Ban 2.0" IFR - August 15, 2019
  • AILA and the American Immigration Council Submit Comment Opposing "Asylum Ban" IFR - January 8, 2019
  • AILA Policy Brief: "Asylum Ban" Flouts U.S. Law and Endangers the Lives of Asylum Seekers - November 29, 2018
  • AILA Quicktake #253: Trump Administration's New Proclamation on Asylum - November 9, 2018

  Litigation

  • CA9 Affirms District Court’s Grant of a Preliminary Injunction Against Third Country Transit Ban (East Bay Sanctuary Covenant v. Garland, 7/6/20, amended 4/8/21)
  • District Court Vacates Third-Country Transit Ban, Effective Immediately (CAIR Coalition, et al. v. Trump, et al.) - Last Updated June 30, 2020
  • Resources on Case Challenging Interim Final Rule on Asylum Claims at the Southern Border (East Bay Sanctuary Covenant v. Trump) – Last Updated February 28, 2020
  • Challenging Customs and Border Protection's Unlawful Practice of Turning Away Asylum Seekers (Al Otra Lado, Inc. v. McAleenan) - Last Updated March 2020

  Government Announcements and Information

  • EOIR Guidance Regarding New Regulations Governing Asylum – July 15, 2019
  • Presidential Proclamation Addressing Mass Migration Through the Southern Border of the U.S. - November 15, 2018
  • DHS and DOJ Joint Interim Final Rule on Asylum Claims Along the Southern Border - November 9, 2018
  • EOIR Guidance Regarding the Presidential Proclamation - November 13, 2018
  • USCIS Guidance on Implementing Regulatory Changes Created by Interim Final Rule - November 9, 2018
  • EOIR Guidelines Regarding New Regulations Governing Asylum and Protection Claims - November 8, 2018
  • DOJ and DHS Issue New Rule Applying President's Authority to Suspend Entry to Asylum - November 8, 2018

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  Asylum Cooperative Agreements

  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.

  Government Announcements and Information

  • U.S. Suspends Asylum Cooperative Agreements with El Salvador, Guatemala, and Honduras – February 6, 2021
  • EOIR Releases Guidance on Implementation of Asylum Cooperative Agreements - November 19, 2019
  • DHS Notice of Agreement Between United States and Guatemala Regarding Protection Claims (84 FR 64095, 11/20/19)
  • Joint DHS and DOJ Interim Final Rule to Implement “Asylum Cooperative Agreements” (84 FR 63994, 11/19/19)
  • The United States and Honduras Sign Asylum Cooperative Agreement – September 25, 2019

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  Prompt Asylum Case Review (PACR) and Humanitarian Asylum Review Process (HARP) Programs

  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.

  AILA Resources

  • Practice Alert: State of Play Following Presidential Executive Order on Comprehensive Regional Framework and Asylum - February 5, 2021
  • American Immigration Council Fact Sheet: Policies Affecting Asylum Seekers at the Border – January 29, 2020
  • Practice Alert: Pilot Program Being Tested in El Paso to Speed up Removal of Asylum Seekers – October 30, 2019

  Government Reports

  • DHS OIG Says DHS Has Not Effectively Implemented the Prompt Asylum Pilot Programs AILA Doc. No. 21012941

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  Cite as AILA Doc. No. 19032731.