Biden administration unveils new asylum rule on US-Mexico border

The United States says the new rule will expedite asylum claim processing, but rights groups caution it may lead to quick deportations.

Migrants walking back to Mexico
The new procedure comes as the administration of US President Joe Biden faces mounting pressure to end another border restriction known as Title 42 [File: Jose Luis Gonzalez/Reuters]

Washington, DC – The Biden administration has announced new procedures that it says will expedite the processing of asylum seekers at the United States-Mexico border, but immigrant advocates say the change may undermine fair asylum decisions.

In a statement on Thursday, the US Department of Homeland Security (DHS) said the new rule will allow immigration officers at the border to conduct “credible fear screenings” of asylum seekers “who assert a fear of persecution or torture”.

If they pass that screening, the asylum seekers – who would otherwise be subjected to immediate removal under a contentious border restriction known as Title 42 – will have their claims assessed.

The move, which aims to process cases within 90 days, would bypass the currently backlogged system in which only immigration judges working for the US Department of Justice oversee such cases. The process currently takes several years to adjudicate.

“The current system for handling asylum claims at our borders has long needed repair,” DHS Secretary Alejandro Mayorkas said in a statement. “Through this rule, we are building a more functional and sensible asylum system to ensure that individuals who are eligible will receive protection more swiftly, while those who are not eligible will be rapidly removed.”

Migrants at border
The new rule would bypass the currently backlogged system where only immigration judges working for the Justice Department oversee asylum cases [File: Jose Luis Gonzalez/Reuters]

The change comes as US President Joe Biden faces growing pressure to end the government’s use of Title 42, a pandemic-era restriction that allows US border officials to immediately send most asylum seekers back to Mexico or to their country of origin, without assessing their claims.

More than 1.6 million expulsions have been carried out under Title 42 since the policy was put in place in March 2020 by then-President Donald Trump. The order relies on guidance from the US Centers for Disease Control and Prevention (CDC), which is expected to decide by the end of March whether to renew Title 42.

Rights groups have repeatedly called on the Biden administration to revoke the policy, blasting it as cruel and a violation of US and international laws. Human Rights First, a US-based rights group, has recorded nearly 10,000 reports of kidnapping, torture, rape, and other violent attacks against people turned away at the US southern border as a result of Title 42.

Earlier this month, a federal appeals court upheld Title 42’s use, but ruled that it should avoid sending asylum seekers where they could face persecution or harm.

Access to lawyers

Aaron Reichlin-Melnick, senior policy counsel at the American Immigration Council, said the short timeframe for the new asylum rule means that it will be more difficult for people to find a lawyer, which is crucial for proving complicated asylum cases.

“This will completely revamp the process that asylum seekers have gone through for the last couple of decades,” Reichlin-Melnick said.

“The asylum officer would be able to give you asylum right then and there, basically meaning that people who have strong or easy cases where it’s clear that they deserve asylum would never have to go to court,” he told Al Jazeera.

“If the asylum officer, however, determines that the person shouldn’t be granted asylum, they will then automatically be sent to immigration court like before,” he said.

Other immigration advocates also criticised the new rule, saying the focus on speed threatens accurate asylum decisions. “The new interim rule risks sacrificing accurate decision-making to its narrative of speed,” Eleanor Acer, senior director for refugee protection at Human Rights First, said in a statement.

“Imposing unrealistic deadlines will lead to mistaken decisions, additional adjudication to correct those mistakes and the improper return to persecution of people who qualify for asylum,” she said.

US Citizenship and Immigration Services (USCIS) said the new rule, which will take effect in 60 days and is open for public comments and modifications, will not apply to unaccompanied children. It will also be implemented in phases, starting with a limited number of individuals.

Record arrivals

Record numbers of people have arrived at the US-Mexico border in search of protection since last year, with most fleeing poverty and gang violence in the so-called “Northern Triangle” countries of Central America: Honduras, Guatemala and El Salvador.

But most have been turned away under Title 42. For example, between the start of 2021 and February 26 of this year, the US expelled more than 20,000 Haitians, including children, under the policy, according to the International Organization for Migration (IOM).

Haiti has been reeling from worsening political and economic crises since the assassination of President Jovenel Moise last July. The country is currently suffering from a political deadlock over when and how to hold elections, and armed gangs – which have strengthened their grip on much of the country – have been kidnapping people for ransom.

Human Rights Watch (HRW) said in a report on Thursday that most people sent back to Haiti under Title 42 had escaped the crisis-stricken island years before, and had been living in Brazil or Chile. The report found that among 383 returnees, 69 percent said they did not feel safe in Haiti and 84 percent wanted to leave the country again.

Haitians gathered under Bridge
More than 15,000 Haitians camped under a bridge in Texas in September of last year before most were deported without a chance to apply for asylum [File: Julio Cortez/AP Photo]

Guerline Jozef, co-founder and executive director of the Haitian Bridge Alliance, an organisation that assists Haitian migrants, told Al Jazeera that 130 people – including 30 children – were expelled to Haiti aboard a US deportation flight on Friday. She blamed deep-rooted “anti-Blackness” for what she said was a clear double standard in the treatment of asylum seekers.

“Why is it that we respond to the humanity of Ukrainians differently than other people, those who are Black and brown?” Jozef asked. “Why is it that the response to Haitians coming to us in the middle of a crisis in Haiti was to detain, expel and abuse them – and at the same time when it comes to people from Europe, we welcome them?”

Last week, border agents allowed dozens of Ukrainians to come into the US through the southern border, exempting them from Title 42 amid Russia’s ongoing assault of Ukraine. Rights groups welcomed the move, but denounced what they said was a double standard.

US media outlets have reported that the Biden administration is considering revoking Title 42 at the border starting on April 1, a move that would potentially result in a surge in people trying to enter the US.

The move is likely to draw the ire of Republican leaders who have seized on the issue of migration to attack Biden and accuse him of endangering the security of the US. On Thursday, The Hill reported that Republican Senator Rick Scott wrote a letter to DHS asking how it would deal with an influx of arrivals if Title 42 were to be lifted.

Source: Al Jazeera