Two Years On, Biden Abandons Asylum Commitments; CGRS Urges Administration to Change Course

On February 2, 2021, President Biden issued an executive order (EO) designed to reverse the damage done by the previous administration in its all-out assault on the U.S. asylum system. The order was intended to restore safe and orderly processing of people seeking asylum at the U.S. border, as well as create a framework for working with key regional partners to manage migration and address the dangers forcing people to flee their homes. The EO presented clear, time-bound commitments to rescind Trump-era measures and enact new policies that would bring the United States back into alignment with its legal and moral responsibilities to refugees.

To say President Biden’s actions have not lived up to these commitments would be an understatement. As Center for Gender & Refugee Studies (CGRS) Director Karen Musalo noted one year ago today, the Biden administration has consistently “put politics before human rights, embracing and defending some of the most egregious policies of the Trump era.” In the past year, President Biden has all but abandoned the proposals he campaigned on and instead doubled down hard on anti-asylum policies. As corroborated by reports from within the administration, Biden’s about-face on asylum has been seemingly motivated by a fear of political backlash amidst racist fear-mongering about the border.

“If the president continues this path, the legacy he leaves will be one of an administration that flouted domestic and international obligations, and was governed by political cowardice that cost refugees their lives,” CGRS Director Karen Musalo said today. “We appeal to President Biden to remember the promises he made to reverse the unlawful policies of the prior administration. Communities at the border and across the United States stand ready to welcome people seeking asylum with dignity. Advocates and service providers have provided the administration with a clear roadmap to resume safe, fair, and orderly asylum processing at the southern border. It is not too late to reverse course.”

In recent months the Biden administration has expanded the application of its Title 42 policy to Cubans, Haitians, Nicaraguans, and Venezuelans. People of these nationalities who were not subject to Title 42 under Trump now face rapid expulsion to Mexico, where many face grave harm. The administration also recently announced it will propose a rule resurrecting Trump’s “transit ban,” which could deny asylum to anyone who passes through another country on their way to the United States and does not apply for protection there first, regardless of the dangers asylum seekers experience in the most common countries of transit. A similar rule promulgated under the Trump administration was found illegal by a federal court of appeals. This unilateral abdication of the United States’ responsibilities to asylum seekers – outsourcing them instead to neighboring countries with far fewer resources – directly contradicts the EO’s stated goal of managing migration collaboratively, alongside our regional counterparts.

Reports now indicate that the administration is planning to revive another policy designed to rapidly deport people seeking asylum by forcing them through a rushed screening process while jailed in border holding facilities, with no access to counsel. The February 2021 EO ordered the immediate end of similar policies implemented under the Trump administration as the Prompt Asylum Case Review (PACR) program and the Humanitarian Asylum Review Program (HARP). It is astounding that the administration is reportedly poised to bring them back.

To make matters worse, key positive proposals set forth in the EO remain unimplemented. Most notably, the administration has failed to propose regulations clarifying one of the grounds for refugee status – “membership in a particular social group” – the interpretation of which has been politicized by those seeking to sabotage asylum claims, especially from women and LGBTQ+ people fleeing sexual and gender-based violence. The EO correctly calls on the Departments of Justice and Homeland Security to draft regulations that clarify and realign U.S. asylum law with international standards. Those standards are well-known, widely accepted, and long-standing in international refugee law. Yet even this simple and clear directive has been seemingly abandoned by the Biden administration, which had pledged to propose the regulations by October 2021.