A Year After February 2021 Order, Biden’s Asylum Promises Remain Unfulfilled

On February 2, 2021, President Biden signed a sweeping executive order to restore and enhance asylum processing at the U.S.-Mexico border and expand pathways to protection in the region. One year later, these promises remain unfulfilled. As detailed in our recent assessment of President Biden’s first year in office, his team has instead doubled down on Trump’s most draconian, anti-asylum policies. As a result, people fleeing persecution remain in dangerous limbo, with no functioning asylum system at the U.S. southern border.

The February 2021 order charted a clear path to resume “safe and orderly processing” of asylum claims at the border, directing government agencies to reinstate asylum processing in line with public health guidance and existing law. Instead, the administration has continued to rely on an obscure legal provision known as “Title 42” to illegally expel people seeking asylum to danger under the pretext of public health. In the past year the Biden administration has used this Trump policy to expel thousands of asylum seekers to Mexico, where violence against migrants escalates, and has carried out a campaign of deadly expulsions to Haiti and other countries. Rather than implement commonsense COVID-19 policies to safely restart asylum, the administration has embraced “xenophobia masquerading as a public health measure.”

The Biden administration initially delivered on another executive order promise to end the Remain in Mexico program. However, attorneys general in Texas and Missouri successfully obtained a legally questionable district court order, upheld on appeal, requiring the administration to make good faith efforts to resume the program. To the shock and disbelief of advocates, the administration has gone beyond the court’s ruling and expanded the program’s application to nationalities that were not subject to it even under Trump. Relaunched in December 2021, Remain in Mexico 2.0 continues to expose people seeking asylum to grave harms while denying them any semblance of due process.

“When President Biden issued his executive order last February people seeking asylum and their advocates felt hopeful,” CGRS Director Karen Musalo said today. “It seemed the president was committed to see his campaign promises through and swiftly restart asylum at the southern border. Instead, his administration has put politics before human rights, embracing and defending some of the most egregious policies of the Trump era. The human cost has been staggering. We urge the president to immediately reverse course.”

Beyond the border, Biden’s February 2021 order directed his administration to implement a migration strategy in coordination with regional governments to strengthen protection systems in the region and expand pathways to safety. In July 2021 the administration released its Collaborative Migration Management Strategy, which promised to promote “safe, orderly, and humane migration” in North and Central America.

The Biden administration has taken some small steps to increase access to protection in the region, including the reinstatement of the Central American Minors (CAM) program. However, on the whole, the administration has increasingly relied on policies that externalize our borders further south, outsource our asylum obligations, and impede the ability of people to seek protection in the United States. In addition to accelerating pushbacks under Title 42 and Remain in Mexico 2.0, the administration has pressured the Mexican government to ramp up harsh enforcement measures, emboldening migration officials to abuse people seeking asylum. This week disturbing news broke that the Biden administration is now expelling Venezuelans seeking asylum to Colombia, a country that already hosts nearly two million Venezuelan migrants and refugees.

“Last year President Biden pledged to implement a regional migration strategy that would promote respect for the human rights of asylum seekers,” CGRS Manager of Regional Initiatives Felipe Navarro Lux said. “But at nearly every turn, his administration has turned its back on people escaping persecution. The administration’s policy choices have continued to put asylum seekers in danger, punishing them to reinforce the callous message that the president, vice president, and their team have reiterated time and time again: ‘Do not come.’ This is not a humane or effective response to people fleeing for their lives.”

The February 2021 executive order also directed the Departments of Justice and Homeland Security to determine whether U.S. treatment of asylum claims based on domestic or gang violence is consistent with international standards, and to propose a joint rule clarifying the meaning of “particular social group” – an important element of the refugee definition that has been under attack by anti-asylum forces for years. The deadline for the proposed rule has long passed. This delay is causing real harm to people seeking asylum, as bias and inconsistency in this area of the law have resulted in wrongful denials of protection to women escaping domestic violence and other people fleeing life-threatening persecution and torture.

“If the Biden administration is truly committed to building a humane asylum system aligned with its stated values and international law, the path forward is clear,” CGRS Director of Policy & Advocacy Kate Jastram said today. “The legal analysis mandated by the February 2021 order is not complicated. We are deeply concerned that internal resistance motivated by political cowardice may be causing the administration to waver. If President Biden fails to deliver on this promise, too, CGRS and our partners are prepared to hold him to account and fight relentlessly for those whose lives hang in the balance.”