How the Biden Administration Can Protect Both Public Health and the Right to Asylum

President Biden ran on a platform promising to bring dignity and humanity to our immigration system. Over the last nine months, he has frequently shown that to be true for many populations seeking humanitarian protection in the U.S, through his support of Dreamers and increasing the annual refugee cap. However, he has failed to demonstrate that he will respond to crises at our southern border with a humane approach rather than repeating the mistakes of past administrations that relied on an ill-conceived theory of deterrence. The Biden administration has used COVID-19 as an excuse to close our borders to those seeking protection rather than expanding our processing capacity to safely allow asylum seekers into our country. 

In March 2020, the Trump administration implemented a rarely used health law, Title 42, that allowed the U.S. to rapidly expel migrants arriving by land without providing them the opportunity to apply for asylum. The Trump administration implemented Title 42 against the advice of experts, who said it would do little to contain the spread of COVID-19. When the Biden administration took over in January, it provided a limited exception to Title 42 expulsions — for unaccompanied minors — but otherwise continued to expel asylum seekers under the guise of limiting the spread of COVID-19. 

Title 42 has effectively replaced the Trump-era Migrant Protection Protocols (MPP), which created refugee camps in northern Mexico. In terminating this program, the Biden administration collaborated with the Mexican government, the United Nations High Commissioner for Refugees (UNHCR), the United Nations Children’s Fund (UNICEF), and the International Organization for Migration (IOM) to process thousands of migrants through ports of entry with COVID-19 testing. As the operation began, the Department of Homeland Security assured the public that “the United States and our partners will employ all necessary safety precautions in accordance with the Centers for Disease Control and Prevention (CDC) guidance, including mandatory face coverings and social distancing. Individuals processed through this program will be tested for COVID-19 before entering the United States.” MPP processing has been halted by a court injunction, but DHS is challenging that decision and planning to resume its termination of the program. 

Yet even as the Biden administration casts MPP as a program “not aligned with our nation’s values” and seeks to end it, Title 42 expulsions have once again left thousands of people in Mexico, or returned to the dangerous situations in their home countries that they were fleeing. The winding down of MPP has proven that the administration is able to safely process large amounts of migrants, but officials have continued to push the narrative that we must keep our borders closed to protect public health. Secretary of Homeland Security Alejandro Mayorkas said: “Irregular migration poses a significant threat to the health and welfare of border communities, and to the lives of the migrants themselves, and should not be attempted. If you come to the United States illegally, you will be returned. Your journey will not succeed, and you will be endangering your life and your family’s lives.” 

When an encampment of Haitian asylum seekers formed in Del Rio, Texas, DHS responded by surging personnel to “improve control of the area.” This surge led to Border Patrol agents on horseback chasing, abusing, and terrorizing the migrants and preventing them from returning to the camp. While both the White House and Secretary Mayorkas have condemned the abuse of migrants in Del Rio, they continued to deport them back to Haiti.

These actions do not reflect an administration that is focused on creating a humane immigration system. They are reminiscent of harsh policies that aim to deter migrants from attempting to seek protection in the U.S. The Biden administration should focus on building our processing capacity in order to safely and effectively process asylum seekers. 

Recommendations:

Collaborate with international partners

The Biden administration can increase processing capacity by working with international partners, similar to its process for terminating MPP. The administration can work with international agencies and the Mexican government to provide testing and vaccines to those waiting to be processed through ports of entry. 

Implement vaccination program

There was speculation that DHS would provide COVID-19 vaccines to migrants in detention, but no formal policy has been enacted. Providing free vaccinations to detained migrants would reduce the risk of transmission and protect public health. The Biden administration has worked closely with the Bureau of Prisons to make personal protective equipment and vaccines available to individuals in its custody, and so already has a model for how vaccines can be distributed to detention centers. 

Additionally, the administration should provide access to vaccinations for migrants before they are in the detention system. In August, hundreds of migrants waiting in Tijuana were vaccinated by health officials. The administration has shipped more than 100 million doses of vaccine to over 60 countries, including Northern Triangle countries and Haiti, which account for a large population of asylum seekers. These doses could be administered to migrants along their journey to the border. 

Limit detention

According to a recently released report from the DHS inspector general, Customs and Border Protection cannot provide adequate space in its detention centers for migrants to socially distance, nor can it transfer them to bigger facilities in a timely fashion. CBP should quickly remedy this and transfer migrants to facilities with the resources to follow CDC guidelines for social distancing and PPE. In order to ensure there is enough detention space, asylum seekers should only be detained when absolutely necessary. Implementing parole programs can leave space for newly arrived migrants who need to be screened or quarantined.

Conclusion

Over 18 months have passed since COVID-19 began rapidly spreading across the U.S. For half of that time, the U.S. response has been led by the Biden administration. The administration has shown a remarkable ability to develop, implement, and adapt plans to respond to the public health crisis. Continuing to rely on an ineffective and dangerous policy like Title 42 can no longer be justified as a public health measure when there are other, more humane, ways to manage our borders. It is time for the Biden administration to fulfill its promise “to secure our border, while ensuring the dignity of migrants and upholding their legal right to seek asylum.” In order to do it, it must stop relying on Title 42 as a deterrence mechanism and expand our processing capacity. 

Photo by Greg Bulla on Unsplash

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