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Report Card: The U.S. Asylum System After President Biden’s First Year

Jan 19, 2022

Blog Post

Dan Friedman

A Haitian migrant glances back toward the United States while crossing the Rio Grande to Mexico from Del Rio, Texas on Sep. 20, 2021 as U.S. immigration authorities began deporting immigrants back to Haiti and thousands more waited under a bridge in Del Rio.

(John Moore/Getty Images)

During his presidential campaign, Joe Biden promised to reform our nation’s immigration system with “real leadership and real solutions” and recommit our country to welcoming asylum seekers and refugees. Yet, in office, the Biden administration has prioritized some policies designed to deter people from seeking asylum in the U.S. and both President Biden and Vice President Harris told migrants in Central America “do not come.” Despite some successes, the Biden administration has also overseen a series of anti-asylum decisions. We spoke to the HIAS Policy and Advocacy team to get their help in grading the administration on its first year of work toward solving major asylum issues.

The Biden Administration’s First Year
 

Asylum Cooperative Agreements (ACAs)
GRADE: A, excellent work

One of the ways that the Trump administration prevented people from gaining asylum in the U.S. was through a series of agreements with El Salvador, Guatemala, and Honduras known as the Asylum Cooperative Agreements (ACAs). Under these agreements, the administration would deport individuals seeking asylum in the U.S. to one of these countries and force them to seek protection there instead. This applied even if the asylum seeker had never even visited this country. A report showed that not a single one of the people deported under the ACAs received asylum in the new country. Early in the administration’s first year, Secretary of State Anthony Blinken suspended and terminated the ACAs with El Salvador, Guatemala, and Honduras.

Arriving Unaccompanied Minors
GRADE: D, poor

Early in 2021, when a large number of unaccompanied minors entered the U.S., the administration ran out of licensed shelter space and began putting children in unlicensed Emergency Intake Sites (EIS). Though timing could explain the need for EISs, as their use took place early in the administration’s tenure, these sites do not provide children with the protection they would have in licensed shelters. Whistleblowers alleged poor treatment of the children at these sites, including children being burned with scalding water and threatened with deportation.

Attorney General Decisions
GRADE: A-, an excellent start

Attorney General Merrick Garland has used his power over immigration court judges to undo some of the more egregious barriers to asylum in immigration court. This included, in one set of decisions, reducing the obstacles for survivors of domestic violence and victims of family-based persecution who are seeking protection. In another decision, he restored immigration judges’ ability to pause proceedings, which helps immigrants to apply for relief and the government to focus on more important cases. Finally, he reduced the burden on asylum seekers to prove every aspect of their asylum case again on appeal.

Department of Homeland Security Metering
GRADE: B-, good

Further to a federal court ruling, the Department of Homeland Security (DHS) ended the “metering” policy. Also known as queue management, metering restricted the number of individuals who could request asylum at ports of entry per day. Since metering punishes individuals by forcing them to return to the country they are fleeing, it is unconstitutional. Any new policy must guarantee that they can seek asylum in the United States.

Border Programs
GRADE: D, poor

At the U.S.-Mexico border, the U.S. government does not provide the protection mandated by international agreements about asylum seekers. While it did exempt unaccompanied children, the administration continues to misuse public health laws to expel many arriving noncitizens without giving them the chance to claim asylum. And, while the Biden administration attempted to end the Remain in Mexico program, which forces asylum seekers to wait in dangerous parts of Mexico while seeking asylum in the U.S., a court required the Biden administration to restart the program. Despite fighting the court order and appealing the decision to the U.S. Supreme Court, the administration also expanded the program to additional nationalities, including Haitian nationals who are forced to wait in Mexico where they are vulnerable to anti-black and anti-Haitian prejudice.

Del Rio Crossing
GRADE: F, bad fail

In September, thousands of asylum seekers – mostly Haitian – began crossing the U.S. southern border near Del Rio, Texas. DHS couldn’t process these asylum seekers in a timely manner, so it began forcing the asylum seekers to wait under a bridge in 90-degree heat with little food, water, or sanitation. As the situation worsened, DHS responded with a six-point plan that largely focused on deporting Haitians to their home country as quickly as possible, despite the Biden administration’s acknowledgment of Haiti’s “deteriorating political crisis, violence, and staggering increase in human rights abuses.”

 

Opportunities for the Biden Administration’s Second Year
 

Defining the Right to Asylum and Refugee Protection
GRADE: INCOMPLETE, promising

The Trump administration proposed a number of regulatory changes that would restrict the rights of asylum seekers. The courts have stopped some changes, while the Biden administration has rescinded or delayed others. Administration plans include asking for public input on modifying or permanently removing the above-mentioned regulations, as well as creating regulations that clarify what grounds qualify asylum seekers for legal protections.

Family Reunification
GRADE: INCOMPLETE, more work needed

In February 2021, President Biden created the Interagency Task Force on the Reunification of Families to reunify families separated at the U.S. southern border. The task force has contacted and registered hundreds of families, expedited processing of passport documents for certain families, and established a parole process for families to enter the U.S. However, more than 1,000 children who were separated from their families at the U.S.-Mexico border are yet to be located. Some organizations have sued the federal government for damages related to the separation, but the Biden administration is currently fighting the lawsuits in court after settlement negotiations broke down.

Immigration Court Backlog
GRADE: INCOMPLETE, more work needed

There are now over 1.5 million cases in the immigration courts. This represents a wait time of over four years for those seeking asylum in the court system. This is patently unfair and untenable.

ICE Detainees
GRADE: INCOMPLETE, more work needed

Over 20,000 people are still being held in ICE detention centers awaiting deportation or release, though this no longer includes any families as of December 2021. Before the start of the pandemic, the number rose above 50,000, but when President Biden took office it was approximately 15,000. 

 

For an update on the state of the U.S.-Mexico border at the start of 2022, register for our "Stories From the Border" webinar on January 27, at 4pm ET.