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New DHS Policy Still Fails to Restore Asylum

The Biden team’s plan to process families trapped by “Remain in Mexico” is welcome, but excludes many asylum-seekers at risk.

By Josh Leach on February 17, 2021

On Friday, February 19, the U.S. government is expected to resume processing the asylum claims of thousands of families who have been forcibly stranded for months by the Trump administration’s “Remain in Mexico” program. While this much-needed policy change throws a critical lifeline to many families in danger, it also leaves out thousands of people with a no-less-urgent need for protection including asylum-seekers previously denied safety under MPP and those who have been subjected to metering, Title 42 expulsions, and similar policies.

The newly announced Department of Homeland Security (DHS) procedure—expected to go into effect by the end of the week—applies only to families with active pending cases in the “Remain in Mexico” program (officially known as MPP). These families would be permitted to enter the country in groups of about 300 per day to be processed on the U.S. side of the border, where they can finally have their asylum claims heard under somewhat fairer and less deadly conditions.

However, the policy would not provide any recourse to families and individuals whose asylum claims were previously denied under MPP—despite the well-documented unfairness and lack of due process in the program. Asylum-seekers subject to “Remain in Mexico” have faced constant threats to their lives, families, and physical safety from gangs and corrupt state actors who prey on migrants; many were given false or inadequate information from the U.S. government about when and how to make their claims; and many lack consistent access to legal representation in navigating the asylum process.

Largely for these reasons, throughout the year in which MPP has been in effect, only one and a half percent of people subjected to the program have won their asylum claim. The comparable rate is more than 12 times larger for asylum-seekers overall, who historically have been able to access their legal right to seek asylum inside the United States, and 21 times larger for those who have reliable access to counsel while going through the process.

Moreover, MPP is far from the only Trump-era border policy that has barred people from accessing their rightful chance to seek asylum. Many families and individuals have also been stranded by the practice of “metering”—which involves placing those seeking asylum on long waitlists at ports of entry; fast-track procedures known as PACR and HARP—in which the outcomes are heavily stacked against migrants; and Title 42—a law that both the Trump and Biden administrations have now abused to expel asylum-seekers without any due process.

In a February 2 executive order, the administration put the PACR and HARP programs on hold; but people wrongfully turned away under these policies are not included among the MPP families who can access protection under the newly-announced procedures. Moreover, the DHS announcement does not promise any relief for those subjected to metering, even though these individuals face the same dangers while stranded in Mexico that the MPP families are encountering.

Worst of all, DHS’s new plan still fails to address the Title 42 policy, which remains in effect for newly-arriving asylum-seekers at the border, as well as those who have been stranded in Mexico but were never formally placed into MPP. Yet, despite the administration’s silence and lack of public commitment to end this program, Title 42 is in many ways the most extreme of all the Trump-era policies that Biden inherited.

Title 42—repeatedly denounced by public health experts as a politically motivated effort to ban asylum under cover of responding to pandemic concerns—enables the U.S. government to eject asylum-seekers and migrants without providing them any legal process to seek asylum or other forms of humanitarian protection. While this policy has largely been applied to families and individuals at the U.S.-Mexico border (and even, for a time, unaccompanied children), it has also been used to expel people on flights overseas.

In recent weeks, for example, DHS has sent plane-loads of Haitian families—including children and infants—to their country of origin, despite the grave public health risk this poses to them and to other Haitians, as well as violence and political turmoil in Haiti triggered by the refusal of the U.S.-backed president to leave office. While some of these families were deported under removal orders, others were expelled under Title 42 authority without ever getting the chance to make their claim for asylum.

In defending their continued use of expulsions against people seeking refuge, the Biden administration says they need time to establish a method for humanely processing individuals’ claims. Yet this argument overlooks the fact that such a method has existed for decades. The administration is not being asked to create a new program, but simply to restore access to existing forms of humanitarian protection in accordance with long-standing U.S. and international law.

It is of course true that DHS will need to reopen standard asylum procedures in ways that follow public health protocols, but this is true for all government functions. Seeking asylum is a legal right, and accessing it should not be treated any differently than other public services. Moreover, the plea for more time to establish safer procedures ignores the extraordinary public health risk posed each day by the continued practices of in-person expulsions and deportation flights, both of which spread the virus.

The Biden administration must use its authority to halt all deportations and expulsions during the pandemic. While a judge in Texas recently put a hold on the Biden team’s 100-day moratorium on deportations, they retain executive discretion to deprioritize removals; moreover, neither the administration’s original moratorium nor the judge’s order said anything about Title 42 expulsions, even though these represent in many ways an even more flagrant denial of due process and pose the same risk to public health as other kinds of deportation.

DHS’s announcement about “Remain in Mexico” this week is plainly a step in the right direction, but it falls perilously short of the changes that are needed to fully protect human rights. Please join UUSC in calling on Biden and Harris’s team to keep their promises to asylum-seekers and restore access to humanitarian protection at our borders.

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About UUSC: Guided by the belief that all people have inherent worth and dignity, UUSC advances human rights globally by partnering with affected communities who are confronting injustice, mobilizing to challenge oppressive systems, and inspiring and sustaining spiritually grounded activism for justice. We invite you to join us in this journey toward realizing a better future!

Image Credit: iStock – tatakis

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