On the eve of US President Joe Biden’s inauguration, immigration advocates were optimistic that the incoming administration would end Title 42, a once-obscure rule that during the COVID-19 pandemic allowed border agents to reject migrants who might otherwise have qualified for asylum. While researching my forthcoming book, Precarious Protections, I interviewed lawyers working with unaccompanied immigrant children in Los Angeles who were confident that the new administration would restore the right to seek asylum in the United States. But that is not what happened.
The notion that asylum seekers are gaming the US immigration system with bogus claims is unfounded. On the contrary, under both of Biden’s predecessors, Barack Obama and Donald Trump, US immigration authorities interpreted the law too narrowly to protect most of the vulnerable children fleeing life-threatening violence in Central America.
But while the Obama administration combined humanitarian measures and enforcement, Trump’s policies explicitly disregarded human rights and the rule of law, setting a dangerous and seemingly long-lasting precedent. Title 42 is a prime example. Justified as an exceptional measure to limit the spread of COVID-19, the policy was never endorsed by epidemiologists. But that did not stop the Trump administration from using it to strip people of the right to seek asylum, which is protected under both US and international law.
Two years into his presidency, Biden has failed to deliver on his promise of humane immigration reform. Instead, his administration continues to undermine human rights and expel migrants. Earlier this month, it even announced an expansion of Title 42, adding Nicaraguans, Cubans, Haitians and Venezuelans to the growing list of individuals denied the right to seek asylum. The administration has also created a new parole programme to provide “a safe and orderly” path for individuals from these four countries to come to the US. But Guatemalans, Hondurans and Salvadorans who are also being expelled under Title 42 are not eligible for parole, despite widespread violence and well-documented human-rights violations in their countries.
There is nothing humanitarian about this approach. The Biden administration proposes replacing the right to seek asylum with an exceptional entry pathway for a small number of individuals. Under US immigration law, there is no upper limit on individuals seeking asylum. But the new programme limits entries from the four eligible countries to 30,000 parolees per month.
The programme is also meant to ensure Mexico’s continued collaboration with US border enforcement. For every 30,000 parolees, an equal number of asylum seekers will now be expelled. Mexico’s willingness to accept them “solves” the diplomatic problem that prevents the US from applying Title 42 to every migrant crossing the border, namely, that some countries have refused to cooperate with US deportations and to repatriate their citizens.
By requiring individuals to apply for admission from countries they fled because they were in danger or from transit countries like Mexico, where they face the risk of kidnapping, rape, abuse, and death, Biden’s parole programme effectively ignores the plight of tens of thousands of people already at the US-Mexico border. To be eligible for parole, individuals must have ties to someone in the US who has legal status and the financial means to support them, money to pay for airfare, and valid passports. Only the most privileged among those seeking asylum are likely to have such resources.
In 2018, I met Gael (a pseudonym), a 16-year-old Salvadoran boy who applied for a similar Obama-era programme called Central American Minors (CAM) that required children to apply for parole in their home countries. Gael spent over two years in hiding and in danger with no response from the US government (a typical experience). He had received multiple death threats, and like other migrants fleeing violence, did not have time to wait for the bureaucratic process to run its course. If the sluggish implementation of CAM is any indication, and given the current disarray of the US immigration apparatus, parole applications will not be decided promptly under Biden.
Moreover, even the fortunate few who qualify for Biden’s parole programme will be given only temporary work permits, putting them in a precarious position. Whereas individuals who are granted asylum have permanent legal status, parole can be revoked at any time. One of Trump’s first measures after taking office, for example, was to strip thousands of children paroled under CAM of their legal status. Those admitted as parolees under Biden’s program who seek permanent protection from deportation would have no option but to apply for asylum, thus adding to the formidable court backlog, which is ostensibly what the Biden administration has been trying to avoid.
Under Obama, individuals could apply for CAM or come to the border. Eventually, Gael took matters into his own hands. He fled and was admitted at the US-Mexico border. That is probably why he is still alive. Conversely, under Biden’s new policies, those “who irregularly cross the Panama, Mexico, or US border … [and] fail to use these new [parole] pathways” will be expelled and ineligible for parole in the future.
Attacked by Trump for being “weak” on immigration, Biden has decided to maintain Trump’s agenda. The administration even plans to revive Trump’s asylum bans, which disqualify migrants who arrived at the border through transit countries or entered the US between ports of entry from eligibility for asylum, even though the courts already struck down these policies. Biden also announced that individuals with special vulnerabilities seeking Title 42 exemptions should use an app called CBP One to schedule appointments at official ports of entry. But the app might as well have been named “metering 2.0”, as it appears to be a digital version of Customs and Border Protection officers’ illegal tactic of forcing asylum seekers to wait (sometimes for months) to be admitted.
These are not solutions. Stripping asylum seekers of their rights will not stop them from fleeing home countries where they face dangerous conditions. Those expelled under Title 42 will continue trying to cross the US-Mexico border, artificially driving up apprehensions and increasing the public perception of a border crisis, or they will die trying.
Chiara Galli, an assistant professor of comparative human development at the University of Chicago, is the author of the forthcoming Precarious Protections: Unaccompanied Minors Seeking Asylum in the United States (University of California Press, 2023). Copyright: Project Syndicate, 2023.
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