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AILA Doc. No. 19032731 | Dated April 6, 2021
During the Trump administration, access to asylum on the U.S. southern border was severely constrained by a combination of policies and regulations. These policies formed an ever-present and increasing barrier to due process protections for migrants that threatened fundamental rights like access to counsel and a fair day in court. Along with other policies aimed at asylum seekers throughout the country, these changes made it nearly impossible for people fleeing persecution to access protection in the United States.
This featured issue page provides updates, analyses, and other resources on these policies and AILA’s advocacy on the creation of a humane and fair border processing system for all individuals arriving at our southern border seeking safety.
AILA and coalition partners are calling for the rescission of the Center for Disease Control’s (CDC) March 20, 2020, order which 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. The Biden administration has carved out as a matter of policy an exception for unaccompanied minors.
This has led to the practice of expelling asylum seekers, including vulnerable individuals and family units, to danger. In other cases, individuals have been detained inside the United States while awaiting expulsion. 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.
According to the American Immigration Council “from March 20 through the end of August, CBP ‘expelled’ over 147,000 people encountered at the border from the United States to Mexico.” AILA Executive Director Ben Johnson stated that the “indefinite shuttering of our southern border is an unnecessary measure masquerading as a public health response to COVID-19.”
Under United States 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. The Biden administration should rescind Trump administration policies that have subjected people arriving at the border to inhumane practices and stripped them of a meaningful opportunity to seek protection and relief. Harsh deterrence tactics, 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 should be halted.
On November 9, 2018, President Trump issued a proclamation that, in combination with a rule promulgated by DHS and DOJ, bars from seeking asylum individuals who enter the United States from Mexico between ports of entry. This proclamation was rescinded by President Biden via his February 2, 2021, Executive Order on “Creating a Comprehensive Regional Framework to Address the Causes of Migration, to Manage Migration Throughout North and Central America, and to Provide Safe and Orderly Processing of Asylum Seekers at the United States Border.” However, the interim final rule remained in place.
On July 16, 2019, the Trump administration issued a joint interim final rule—often referred to as the “Asylum Ban 2.0” or “Third Country Transit Ban”—which makes all individuals who enter, attempt to enter, or arrive to the United States across the southern border ineligible for asylum if they have transited through at least one country outside of their country of origin, and have not applied for protection in that country. Similarly, President Biden called for a review of the “Third Country Transit” ban in his Executive Order but the final rule remained in effect as of January 19, 2021.
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. DOS 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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