Recommendations for the Biden Administration: Upholding U.S. Refugee Law and Restoring Asylum
The Trump administration trampled on U.S. refugee laws and treaties, illegally turning away people seeking humanitarian protection and spurring disorder and chaos along the U.S.-Mexico border. While the Biden administration promised to restore asylum and started winding-down the notorious “Remain in Mexico” policy, it is now taking steps to restart that program in the wake of rulings in a lawsuit brought by Trump allies. The Biden administration has moreover chosen to continue another Trump administration policy, referred to as “Title 42,” that had essentially superseded Remain in Mexico to turn away asylum seekers without even the pretense of a potential asylum hearing. Using the Title 42 policy – labeled a “Stephen Miller special” by a former Trump administration official – U.S. officials misuse public health authority to evade U.S. refugee law by refusing to process asylum seekers at ports of entry and expelling them back to danger in Mexico or their countries of persecution.
The Biden administration’s decision to adopt this Trump policy flouts U.S. refugee law and treaties, as a State Department senior legal expert and senior diplomat recently confirmed. Human Rights First has tracked over 7,647 reports of kidnappings, brutal assaults, and other attacks suffered by asylum seekers and migrants blocked or expelled due to the policy since President Biden took office in January 2021. The UN High Commissioner for Refugees (UNHCR) and other international authorities have repeatedly and publicly called on the Biden administration to end the policy and stop violating refugee and human rights law – rare public rebukes that reflect the deep damage inflicted by the administration’s subversion of refugee law. Despite highly dangerous conditions in Haiti, the Biden administration has used Title 42 to expel nearly 8,000 adults and children directly to Haiti since September 2021, purposefully denying them asylum hearings or even the fear inquiry required in expedited removal.
The administration's choices have triggered condemnations from international authorities, civil rights leaders, public health experts, human rights and civil rights organizations, refugee protection agencies and members of Congress. Far from helping the Biden administration politically, the embrace of Trump Title 42 policy has perpetuated disorder and illegality, bolstered racist tropes, and undermined administration credibility.
The Biden administration must change course, renew its commitment to uphold human rights, reject Stephen Miller’s policies and shift to a genuine humanitarian response, led by humanitarian agencies, that upholds refugee laws and effectively manages and resources refugee reception. The recommendations outlined below follow multiple sets of blueprints and recommendations previously issued. The administration must end use of Title 42 and other Trump policies, take all steps legally permissible to terminate Remain in Mexico, restore compliance with refugee law immediately, improve asylum processes so they are timely and fair, and employ effective and humane case support rather than rights-violating detention. In addition, Biden administration efforts to address migration in the Americas must, as other recommendations outline, center human rights and encourage countries to ensure access to asylum.