Restoring Asylum: The Challenges of “Building Back Better” at the Border
By Melissa Crow
The Biden administration has been widely criticized for the so-called “surge” of migrants at the U.S.-Mexican border. But U.S. Customs and Border Protection (CBP) data show that the recent increase is consistent with predictable patterns of undocumented migration. More importantly, the criticism ignores the reality that asylum seekers have fled unspeakable danger in their home countries and disregards the U.S. government’s obligation – under both domestic and international law – to allow them to seek protection.
The criticism also overlooks the fact that the Trump administration’s draconian policies have prevented asylum seekers from entering the United States over the past four years. To unwind these unlawful policies, the Biden administration must restore the opportunity to seek asylum at the southern border and overhaul the U.S. asylum system to provide meaningful access to protection.
The number of migrants permitted to enter the United States in recent weeks pales in comparison to the hundreds of thousands of people stranded on the Mexican side of the border over the past four years as a direct result of Trump administration policies. The most firmly entrenched of these policies is metering. Under this policy, CBP artificially restricts asylum seekers’ access to ports of entry along the southern border, stating falsely that they lack “capacity” to process them. As a result, many migrants–often entire families–were rejected at ports of entry, and were sent to Mexico to put their names on waiting lists and live indefinitely in makeshift, often dangerous arrangements in the hope of seeking asylum in the United States.
In early 2019, the Trump administration compounded this problem by implementing the Migrant Protection Protocols (MPP), better known as “Remain in Mexico.” Under MPP, CBP processes individuals seeking asylum – some of whom were previously metered – and then forces them to return to Mexico to await their hearings in U.S. immigration court. And, since early 2020, the government has used the COVID-19 pandemic as an excuse to completely shut down access to asylum at the southern border, despite contrary guidance from the United Nations High Commissioner for Refugees and public health experts. Under the pretense of the pandemic, the government has expelled hundreds of thousands more migrants from the United States without a hearing or any opportunity to seek asylum. The resulting humanitarian crisis south of the border, purposely kept out of sight over the past several years, is of the U.S. government’s own making and is now in plain view.
The Biden administration has taken important steps to roll back some of these policies – including processing a limited number of individuals subject to MPP for entry into the United States, ending new enrollments into that program, and refusing to expel unaccompanied minors on purported public health grounds. But asylum-seeking adults and families are still being expelled, and individuals metered at least as far back as 2019 continue to languish under perilous circumstances in Mexico.
Meanwhile, the U.S. government’s failure to provide clear and complete information regarding processing eligibility has led many individuals who were previously denied access to the asylum process to return to dangerous Mexican border towns. This has created precarious situations such as outside the port of entry in Tijuana, where a sprawling encampment has formed. It lacks sanitation, running water and reliable bathroom access, raising grave health concerns. Out of unimaginable desperation, some parents have sent their children alone to ports of entry along the southern border. Other families and many individuals have risked their lives by swimming across the Rio Grande, often with tragic results.
Many metered migrants on waitlists who were lucky enough to be present months or years later when their numbers were finally called ultimately got inspected and processed by CBP pre-pandemic – only to be promptly sent back to Mexico under MPP to await their immigration hearings. The Biden administration has chosen to prioritize a limited number of these individuals for processing into the United States and, in most cases, has allowed them to reunite with family or friends. But a broader, more systematic effort to process asylum-seeking migrants who were thwarted by the Trump administration cannot come soon enough. Processing will ensure these individuals an opportunity to present their claims. Only those who qualify for relief under U.S. law will actually receive asylum.
While CBP cannot be expected to process tens of thousands of asylum seekers in one fell swoop, the announcement of a clear game plan for doing so would provide much-needed reassurance that the U.S. government has not forgotten them or its international legal obligations. The metering lists are not entirely accurate or complete, but they provide a good starting point for determining whether individuals waiting in Mexico were metered and how long they have been waiting. In cases where individuals were not permitted to enroll on a waiting list – which is particularly common for Black migrants – alternative evidence of metering should be accepted.
Allowing these individuals to enter the United States is only the first step toward providing meaningful access to the asylum system. Upon arrival, many may be subject to expedited removal, an accelerated process in which a single immigration officer may investigate, charge, and make a removal decision within a day. DHS officers often misapply or ignore statutory protections for asylum seekers in expedited removal, resulting in the unconscionable (and unlawful) return of individuals with viable asylum claims to the countries they fled. Such deportations can be death sentences.
Only individuals who convince an immigration officer that they have a credible fear of persecution or manage to evade the expedited removal process entirely (like those subject to MPP) have the opportunity to present their asylum claims in immigration court. But the immigration court system is plagued with biased decision making and a cumulative backlog of over a million cases. While the court system has been dysfunctional since its inception, the previous administration weaponized it against asylum seekers and immigrants of color in a manner that makes justice even more elusive.
For decades, the U.S. government has faced challenges at the southern border, which are symptoms of more far-reaching problems with our immigration system and U.S. foreign policy towards Latin America. But the unrelenting assault on asylum over the past four years has left the Biden administration in an even more dire predicament. If this administration is serious about its efforts to “build back better” at the southern border, it must adopt a holistic solution that takes all these challenges into account, respects legal obligations, and puts human dignity first.
Melissa Crow is Senior Supervising Attorney with the Southern Poverty Law Center’s Immigrant Justice Project. She has served previously as Litigation Director at the American Immigration Council, Senior Policy Advisor at the Department of Homeland Security, Counsel to Senator Edward M. Kennedy, and Partner with Brown Goldstein & Levy LLP. She has also taught in the Safe Harbor Project at Brooklyn Law School and the International Human Rights Law Clinic at American University Washington College of Law. She received her master’s degree in law and diplomacy from The Fletcher School of Law and Diplomacy in 1993.
Cover Photo is by Gary Goodenough and is licensed under CC BY-NC-ND 2.0.
