JACOB HAMBURGER AND STEPHEN YALE-LOEHR, June 3, 2023
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This document is scheduled to be published in the Federal Register on 06/05/2023
"BY THE PRESIDENT OF THE UNITED STATES OF AMERICA
America is more than a place; it is an idea...
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"In March 2020, the Trump administration invoked its authority under Title 42 of the U.S. Code, a public health law, to close the southwest border to virtually anyone crossing in from Mexico. Since then, border officials deported or denied entry to would-be migrants more than 3 million times. The Title 42 border restrictions are arguably the most significant COVID-19 measure still in effect, and also one of the most durable holdovers of Trump’s immigration agenda. When the COVID-19 public health emergency expires on May 11, the Title 42 immigration restrictions will finally end, leaving it to the Biden administration to craft a new framework for managing immigration at the border.
Biden’s approach to Title 42 has mirrored his campaign promises on COVID-19 more broadly. Biden ran on bringing competent leadership to clean up after Trump’s mismanagement of the pandemic, finally bringing the country back to normal. Just so, Biden now seeks to end the state of emergency at the border that has left countless migrants and asylum seekers stranded in dangerous border cities, and has created an enormous backlog in the U.S. immigration court system. As part of this effort, the administration has proposed some novel alternative pathways for migrants to pursue their asylum claims. But in this effort to restore order, Biden has ended up preserving and legitimizing key elements of Trump’s punitive approach to immigration. In the process, Biden has not only reneged on his campaign promise to roll back the Trump agenda, but has put the future of asylum itself in peril.
Biden’s task in managing the end of Title 42 is unenviable. As the Trump administration hoped, the border closing prevented migrants from coming to the United States to seek asylum, at least temporarily. But the emergency order has to end eventually, and unsurprisingly, federal authorities anticipate that once the restrictions are lifted, a significant number of people will attempt to enter the country to seek refuge. From the start of Title 42, a “border crisis” was all but inevitable.
In absolute terms, the number of people seeking to cross the border at the moment is not unprecedented—the numbers are comparable to a previous peak in 2000—but the situation is serious. Unlike in the early 2000s, when most migrants were single job-seekers, those arriving today are much more likely to be families seeking humanitarian protection. They therefore require both legal procedures to process their claims and various other social services to support them in the meantime. This places significant demands on the federal immigration system and on the local governments where migrants arrive.
To address this challenge after Title 42 ends, the Biden administration has proposed a compromise: experimental new pathways for asylum for those who do not attempt to cross the U.S.-Mexico border, in exchange for harsh limits on asylum access for illegal entrants.
On the first front, some of Biden’s new initiatives may turn out to be beneficial if implemented effectively. Notably, the administration has created new pathways for citizens of certain countries to apply for lawful entry to the United States. After using this model to allow displaced Ukrainians to enter the country, versions of the program were extended to Venezuelans, Cubans, Nicaraguans, and Haitians. More recently, the Biden administration has also unveiled plans to provide screenings for migrants in Colombia and Guatemala, in partnership with Canada and Spain. It remains to be seen whether these programs—which effectively “externalize” the border by requiring applications and screenings outside of the country—will function as an additional roadblock for those seeking protection. But they might provide safer additional pathways for migrants to reach the United States safely, provided that fundamental asylum protections remain intact.
However, Biden’s vision of a post–Title 42 landscape includes curtailing the right to asylum as it has existed since enactment of the Refugee Act in 1980. That law provides that any person on U.S. soil may apply for asylum if they meet the definition of a refugee under international law. In contrast, Biden’s proposed new plan includes a provision that presumes, with minor exceptions, that any person who enters the United States outside of an official port of entry—that is, who crosses the border unlawfully—is ineligible for asylum unless they first applied in another country along the way. This provision bears a striking similarity to a 2019 Trump administration policy that was struck down by a federal court.
In pursuit of an orderly transition from Title 42, Biden has demonstrated his willingness to sacrifice key components of the right to asylum—something he promised to protect in his presidential campaign. Yet it is not clear how Biden’s version of the asylum ban will do any more than Trump’s to reduce the number of people seeking protection in the United States. Meanwhile, these concessions have hardly put to rest sensational partisan rhetoric about a “Biden border crisis.” Recently, several Republican-led states have sued to stop parole programs for Venezuelans, Cubans, Nicaraguans, and Haitians. Although these programs were meant to induce migrants away from border crossings, it is clear that some on the right are less interested in border security than in eliminating asylum altogether.
Facing extraordinary challenges, the Biden administration is betting that it can shape long-term solutions to the inadequacies of the U.S. asylum system. There are many conversations to be had about how to improve this system. But these conversations cannot begin by compromising the most basic protections of the current humanitarian protection framework. If Biden continues down this path, we may remember him—and not Trump—as the president who oversaw the end of asylum."