As Title 42 is set to expire May 11, the Biden administration announced a new rule, misleadingly named “Circumvention of Legal Pathways,” that will actually prevent most asylum seekers at the southern border from seeking refuge in the United States. The new policy, known as the Asylum Transit Ban, is remarkably similar to a terrible 2019 policy by the Trump administration, “Third Country Asylum Rule,” which was struck down by multiple federal courts as unlawful. In both its iterations, the Asylum Transit Ban is fundamentally illegal, undermining the international human rights principle that no one should be forcibly returned to a country where they face torture, degrading treatment, or harm.
President Biden’s rule seeks to stem the flow of asylum seekers by barring those who arrive at the southern border unless they have first sought and been denied asylum in at least one country that they traveled through. The only exceptions are Mexican nationals who do not pass through additional countries and those who enter through the faulty CBP One app. Those who do not meet the exceptions — or prove an “exceptionally compelling circumstance” in a rapid screening inside a border holding cell — will be stripped of their right to apply for asylum. The proposed transit ban is detached from the realities of the border for asylum seekers and is a stark contradiction from Biden’s campaign promise to end the assault on immigrant families. Further, the administration’s plan to send 1,500 troops to the US-Mexico border, even for non-enforcement activities, sends a different message.
First, many asylum seekers will not be safe in surrounding countries. Asylum seekers from the Northern Triangle — Honduras, Guatemala, and El Salvador — necessarily transit through at least one other country and will be subject to the new asylum ban. They are fleeing gang violence, or gender-based or politically motivated persecution, and the persecutors they flee have access to large multinational criminal organizations that operate in the countries they travel through. Many of our clients have been kidnapped and tortured in Mexico; the adjacent countries are not safe. The expectation that asylum seekers begin a long and unwieldy legal process there is not only absurd but deadly.
Additionally, the countries they pass through do not have fully functioning asylum systems, which the Biden administration has acknowledged. On Feb. 6, 2021, in a move that seemed to recognize the insecurity of the region and the inadequate infrastructure for asylum seekers, the Biden administration terminated the Trump-era Asylum Cooperative Agreements with Guatemala, Honduras, and El Salvador. The agreements had allowed the US government to send asylum seekers to these countries and bar them from asylum in the United States. A 2021 congressional report found that from the time the agreements began in 2019, not one of the 945 asylum seekers sent to Guatemala from the United States was granted asylum. It quoted leaders from Honduras, El Salvador, and Guatemala noting that their countries lacked the resources necessary to protect asylum seekers. As Alejandro Giammattei, president of Guatemala, said, “If we do not have the capacity for our own people, just imagine other people.”
Lastly, Biden is embracing enforcement- and deterrence-based policies, like those of his predecessor, policies that he deeply criticized. This administration’s shift in policy making is dangerous for immigrants seeking a safe haven in the United States and signals that we, as a nation, will not fulfill our international obligation to protect asylum seekers.
When Biden ended several Trump policies, the Asylum Cooperative Agreements, Title 42, and “Remain in Mexico,” he acknowledged the illegality of the programs, the insecurity and violence they fostered, and the immense human cost of stripping asylum seekers of their legal rights. His administration called out the Trump administration for “violat[ing] U.S. law and international obligations by sending asylum seekers and refugees to countries where their lives or freedom would be threatened” and condemned the Trump administration for “radically distort[ing] the intent and meaning of ‘safe third country.’” It is painfully ironic to see the Biden administration employ Trump-style tactics and use of punitive, deterrence-based policies. Biden has “distorted” the meaning of “safe third country” to broadly bar asylum eligibility, reviving one of his predecessor’s most harmful and illegal policies.
The current crisis at the border is a humanitarian one. Turning away individuals seeking asylum is a matter of life and death. The United States must not abandon its promise to protect those who come to our borders in search of safety in the name of political expediency.
Audrey Robert-Ramirez, Jill Seeber, and Anita P. Sharma are the current Boston Asylum Office liaisons for the American Immigration Lawyers Association, New England Chapter, and all practice asylum law.