The Volokh Conspiracy

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Biden's New Trump-Lite Asylum Policy Proposal

It's less bad than Trump-era efforts along the same lines. But saying that is damning with faint praise.


Last week, the Biden Administration announced plans for a new policy that would make it difficult or impossible for migrants to cross the southern border for the purpose of applying for asylum. The new rule would summarily expel most asylum seekers unless they have 1) been rejected for asylum in a third country they have passed through (usually Mexico), 2) they have used the CBP One cellphone app to make an appointment for an asylum interview with a Customs and Border Protection (CBP) official, or 3) they can prove that an "ongoing and serious obstacle" prevents them from doing one of the above (the burden of proof is on the asylum seeker).

Critics rightly point out that many asylum seekers don't have access to cellphones or cannot use the app for other reasons. Among other problems, it is notoriously prone to various glitches. Even if the app works as it is supposed to, migrants who use it may have to wait months to get an interview, during which time they are likely to be exposed to dangerous conditions in Mexico or Central America.

These and other flaws have led opponents to compare the new Biden policy to Trump-era initiatives designed to bar asylum seekers. In response, the administration points out they have given would-be migrants some alternative options, such as the app, and applying for private sponsorship under a program modeled on the successful Uniting for Ukraine policy. The latter is open to would-be migrants from Cuba, Nicaragua, Venezuela and Haiti. Trump's proposals didn't include any such workarounds.

But even if Biden's new proposal isn't fully Trumpian, it is certainly Trump-lite. While it does not categorically bar all asylum seekers, it does effectively do so for the many who do not qualify for private sponsorship (either because they can't find a sponsor or do not come from the four covered countries), and cannot effectively use the app. The option of proving they face an "ongoing and serious" obstacle to using the app or applying in a third country is unlikely to work for many, given that the burden of proof is on them, and mere lack of access to a cell phone is unlikely to qualify.

When and if implemented (the plan is still under review), Biden's policy will make asylum impossible for many people fleeing horrific conditions, and otherwise legally entitled to it. Nor is the plan likely to achieve any significant good that even comes close to outweighing this evil.

This new proposal is the Biden administration's replacement for Title 42 "public health" expulsions, begun by Trump under the pretext of combatting the Covid pandemic, and later continued by Biden in order to reduce perceptions of disorder at the border. After multiple lawsuits over their legality, Title 42 expulsions seem likely to end in May, when the administration plans to terminate the Covid-19 national emergency declaration.

Biden has long played a double game on Title 42, claiming to want to end the policy, but also perpetuating it in an effort to tamp down negative publicity about the border situation. The new proposal is a continuation of that strategy. Sadly, the administration has not yet fully figured out that the best way to prevent border disorder is to make legal migration easy, even though its new policy of using the parole power to grant entry to migrants from four nations is a step in the right direction, and has already greatly reduced the flow of illegal migration. If implemented, the new Biden asylum policy will incentivize many asylum seekers to become illegal migrants, as that would be their only way to find relative safety and opportunity in the US.

The Biden proposal has triggered anger from many in his own party. That might force the administration to reconsider. If they proceed with the idea nonetheless, it might be invalidated in court, as was the similar policy adopted by Trump in 2019.

In the meantime, the proposal highlights an ongoing tension in Biden's immigration policy. This administration has made many improvements relative to its predecessor, and some of its innovations are major improvements over previous presidents, as well—most notably Uniting for Ukraine and other private sponsorship initiatives. But it has also sometimes perpetuated and extended cruel restrictionist policies, like Title 42, for what seem to be crass political calculations.

Lost in the debate over asylum policy is the reality that even the most generous possible version of it is currently constrained by  very narrow criteria for eligibility. Under current US and international law, asylum is only granted to people who qualify as "refugees," defined as those unable or unwilling to return to their home countries due to past persecution or a well-founded fear of being persecuted in the future "on account of race, religion, nationality, membership in a particular social group, or political opinion."

This definition excludes many victims of war, violence, and oppression. I  give some examples here:

For example, it doesn't include the vast majority of North Koreans, subjects of the world's most repressive regime. For the most part, that government's victims are targets of what we might call "equal-opportunity oppression" doled out to almost everyone who lives under the regime's rule, not just to members of specific racial, ethnic, religious or other "social" groups. It doesn't even include people subjected to forced labor, as long their enslavement wasn't based on any of the above prohibited characteristics. Thus, the US government's  cruel and ridiculous policy barring asylum to people enslaved by terrorist groups is acceptable under this definition, so long as the terrorists are equal-opportunity slaveowners.

The same point applies to most people fleeing violence and war. As long as the threat to their safety emanates from the general conditions facing people in the region, as opposed to being specifically targeted on the basis of one of the prohibited characteristics, they don't qualify as refugees.

Even if terrorists or repressive governments target you personally, you still don't qualify for refugee status unless their motive was one of the criteria listed above.

Congress would do well to fix this problem. But I don't hold out much hope it will happen anytime soon.