END OF TITLE 42 - U.S. President Joe Biden's newly unveiled plan to crack down on asylum-seekers, which his administration is expected to implement following the scheduled expiration of the pandemic-era Title 42 policy on Thursday, is being denounced for entrenching a bipartisan abandonment of international human rights law.
"This asylum 'plan' from the Biden administration is a disaster," Sawyer Hackett, an adviser to Rep. Julian Castro (D-Texas), wrote Wednesday on social media. "It slams the door on our commitment to asylum as an internationally recognized principle. In many ways, it's worse than Title 42 and anything Trump proposed around asylum."
Title 42 was enacted by former President Donald Trump early in the Covid-19 pandemic at the behest of his notorious white nationalist adviser, Stephen Miller. Despite widespread condemnation from human rights experts, who accused Biden of following Trump in weaponizing the rarely used public health statute to swiftly deport immigrants, the current president has failed to fundamentally break from his predecessor's policy of fast-tracking the expulsion of asylum-seekers.
"Forcing persecuted people to first seek protection in countries with no functioning asylum systems is as ludicrous as it is life-threatening. This ban is Title 42 in sheep's clothing, and it will have a devastating impact."
The Biden administration initially defended Title 42 and continued to expand the policy after its attempts to end it were thwarted by Trump-appointed judges. With Title 42 scheduled to expire alongside the Covid-19 public health emergency on May 11, the White House in February proposed a set of anti-asylum measures consistent with those it inherited.
CBS News on Tuesday obtained internal documents showing that the new restrictions had been finalized and hundreds of U.S. asylum officers trained on how to enforce them. The policy was formally published on Wednesday.
"The long-awaited end of Title 42 should be a cause for celebration and relief; and we welcome the end of a policy that was based in cruelty and persecution," Danilo Zak, associate director of policy and advocacy at Church World Service, said in a statement. "However, the immediate implementation of an asylum ban on the same day it is set to end represents an unwillingness to move away from punitive, fear-based border policy and towards humane solutions that would effectively and compassionately manage the border."
"This ban and other proposed border policy changes will place further restrictions on asylum, while increasing detention, deportation, and militarization at the border," said Zak. "It will embrace disorder, returning at-risk migrants to danger, and do nothing to address the challenges we face. With every step forward, the Biden administration is choosing to immediately take two steps back; the legacy being created is one of negligence and harm. One that directly undermines the values of so many Americans."
As CBS News reported:
Under the rule, migrants who cross the southern border without authorization will be presumed to be ineligible for asylum if they can't prove they previously requested protection in a third country. In practice, it will disqualify most non-Mexican migrants who enter the U.S. between ports of entry from asylum.
Migrants who secure an appointment to enter the U.S. under a mobile app-powered system will not be barred from asylum under the policy. The rule will also not apply to unaccompanied children.
According to internal training documents, only migrants with "exceptionally compelling circumstances" will be able to overcome the rule's asylum bar. Those include migrants with an "acute medical emergency," those who face an "imminent and extreme threat" in Mexico, and victims of "a severe form of human trafficking."
In order to avoid being deported and banished from the U.S. for five years, those who don't qualify for any exemption will need to pass interviews with heightened standards designed to lead to more rejections than traditional "credible fear" interviews, according to the training materials.
The White House's plan to ramp up the expedited removal of migrants who cross the U.S.-Mexico border marks "a dramatic shift in asylum policy," the outlet noted. It "also represents a major pivot by President Biden, a Democrat who campaigned on restoring access to the U.S. asylum system after numerous Trump administration rules made it more difficult for migrants to secure refuge on American soil. In fact, the regulation published Wednesday resembles a Trump-era policy struck down in federal court that Mr. Biden decried in 2020."
Biden's new policy is expected to be challenged in federal court. "We will sue as we did under Trump," Lee Gelernt, the ACLU's top immigration lawyer, told CBS News on Tuesday. "The core illegality is the same."
But the outlet noted that "if upheld, the Biden administration's rule will cement a growing bipartisan rejection of the asylum laws that Congress enacted in 1980 to conform with international treaties designed to prevent nations from turning away refugees to places where they could be persecuted, as the U.S. did to some Jews fleeing Nazi Germany."
In a statement, Jonathan Blazer, ACLU's director of border strategies, accused Biden of ushering in "a new period of immense suffering for people already enduring violence and persecution."
Biden "has closed off the possibility of asylum in the United States to the majority of people seeking safety—in contradiction with our nation’s laws and values," said Blazer. "In doing so, he is finishing Trump's job rather than fulfilling his own campaign promises. This is a somber day for our country and for refugees in desperate search of safety, but the fight is far from over."
"We urge the Biden administration to reverse course before this misguided rule betrays core American values and denies protection to those most in need of it."
Aaron Reichlin-Melnick, policy director at the American Immigration Council, lamented that "the Biden administration's pivot back to the Trumpian policies is complete."
"These new asylum restrictions mirror in large part one of the Trump administration's harshest anti-asylum policies, the 2019 asylum transit ban—which two separate federal courts struck down as unlawful," Reichlin-Melnick wrote on social media. "That's not to say that there's no difference between the Biden and Trump administrations. Under Trump, the transit ban applied to everyone. Under Biden, migrants who win an appointment lottery through [the] CBP One app lottery will be exempt from the new 'rebuttable presumption.'"
However, a policy briefing released this week by Amnesty International warns that the mandatory use of U.S. Customs and Border Protection's (CBP) mobile app as the sole means for people to enter the U.S. to seek asylum is an explicit violation of international human rights law.
"The mandatory use of CBP One conditions entry and access to asylum on appearing at a port of entry with a prior appointment, which is only feasible for some people," Erika Guevara-Rosas, Americas director at Amnesty International, said in a statement. "While technological innovations could potentially provide for safe transit and more orderly border processes, programs like CBP One cannot be used as the exclusive manner of entry into the United States to seek international protection."
“The way in which the CBP One application works is deeply problematic," Guevara-Rosas continued. "Asylum-seekers are forced to install the application on their mobile devices, which enables U.S. Customs and Border Protection to collect data about their location by 'pinging' their phones. The U.S. must ensure that asylum seekers have due process rights regarding refugee status determination procedures and that they are not returned to places where they may be at risk of harm."
Reichlin-Melnick acknowledged that "as the Biden administration adopts new versions of the harsh policies of its predecessor, it has kept 'alternate pathways' available, including expanding the capacity of the ports of entry and creating significant new parole programs." Nevertheless, he added, "those paths aren't available to many migrants."
Lee Williams, chief programs officer at Lutheran Immigration and Refugee Service, sharply rebuked Biden in a statement.
"At a time of unprecedented global displacement, the Biden administration has elected to defy decades of humanitarian protections enshrined in U.S. law and international agreements," said Williams. "Forcing persecuted people to first seek protection in countries with no functioning asylum systems is as ludicrous as it is life-threatening. This ban is Title 42 in sheep's clothing, and it will have a devastating impact on children and families already uprooted by unimaginable violence, persecution, poverty, and climate disaster."
"We welcome steps taken to expand pathways to protection from home countries, such as humanitarian parole programs, family reunification processes, and increased refugee admissions, but under no circumstances should they replace asylum as the last best hope for families in desperate need of safety," Williams continued. "Though the administration's stick is an immediate ban, its carrot requires time to set up processing facilities in Latin America and vet applicants—time that many asylum-seeking families in imminent danger simply do not have."
"We urge the Biden administration to reverse course before this misguided rule betrays core American values and denies protection to those most in need of it," Williams added. "There will be challenges along the way, but the U.S. has the resources and compassion to welcome people with dignity. Generations of Americans have opened their doors and their hearts to these newcomers, and their presence will continue to make our country, our economy, and our communities stronger."
(Kenny Stancil is a staff writer for Common Dreams where this story was first published.)