In a brief filed with the Supreme Court yesterday, the Biden administration declared its intent to replace the Title 42 expulsion policy with a sweeping ban on asylum for most people who seek protection at the U.S. border. The government has stated that “in the coming weeks” it will issue a rule that bars asylum for people who pass through any third country en route to the border and are unable to seek protection there first. The administration plans to rush this policy into effect before May 11, which would almost certainly preclude it from seriously considering public input during the statutorily required notice and comment period.
People fleeing persecution and torture have a legal right to seek protection in the United States, no matter how they reach the border, and no matter what countries they pass through first. The previous administration’s transit ban violated that right, as the courts acknowledged, and inflicted enormous suffering, returning asylum seekers to perilous conditions and tearing families apart. President Biden previously denounced the Trump-era transit ban and pledged to end the policy, along with other illegal asylum restrictions imposed by his predecessor. Faith groups, civil and human rights organizations, and 77 congressional leaders of the president’s own party have implored the president to remember his promise and shelve the planned rule.
”The Biden administration is well aware not only of the transit ban’s dubious legality, but of the dire conditions that face asylum seekers in the most common countries of transit,” said CGRS Director Karen Musalo, who offered a trenchant critique of the administration’s adoption of the transit ban in Just Security today. “People seeking asylum at our southern border generally pass through Mexico, and often Central America, first. Most of the countries they transit are profoundly unsafe for asylum seekers and migrants, who are targeted for violence and discrimination throughout their journey to the United States. Our neighboring countries that do have asylum systems in place are already operating far beyond capacity.”
“Last night the president heralded the United States as a ‘beacon to the world’ that chooses ‘hope over fear,’” Musalo continued. “These lofty words do not square with his administration’s shameful decision to turn its back on refugees and attempt to offload its protection responsibilities to smaller countries with far fewer resources. The planned transit ban rule will position the United States not as a beacon, but as a country that violates its international and domestic legal obligations, tramples on the rights of the most vulnerable, and forces its neighbors to shoulder the consequences.”
“We are outraged that the Biden administration is poised to resurrect a version of Trump’s transit ban, an illegal policy that places people seeking asylum directly in harm’s way,” CGRS Director of Policy & Advocacy Kate Jastram added. “The White House will no doubt attempt to repackage their policy as distinguishable from Trump’s, which was repeatedly struck down by the courts. But a ban is a ban. Once again, President Biden is reverting to the Trump playbook in an attempt to gain political points and leaving people seeking asylum in the lurch. We urge the administration to reverse course.