The Biden administration inherited a mess of an immigration system. The prior administration took steps across the board to bog down an already outdated system with policies and programs that actively and deliberately made it worse, and then brandished how bad the system was for political attention. Some of these policies were loud and obvious– such as the Trump administration’s various incarnations of the Muslim Travel Ban, the asylum ban, and the border wall. But some were less obvious, in the form of death by a thousand papercuts. Baseless Requests for Evidence that added unpaid-for time to an agency that relies on filing fees. A hiring freeze that compounded delays, inefficiencies, and inaccuracies as trained officers left and were not replaced. It was a particularly manic time to practice immigration law, and next to impossible to keep on top of the law that changed daily between new regulations and almost immediate injunctions. Then COVID-19 was a near-fatal blow to the Department of State and U.S. Citizenship and Immigration Services after years of Trump administration efforts to actively dismantle those agencies. It will be years before the harm caused to our immigration system can be undone.
Title 42 was one of those terrible policies. Putting aside the inhumanity and illegality of its use to effectively end asylum at the southern border, it caused another form of harm. By relying on Title 42, two different administrations essentially put border management on a bureaucratic credit card. A blunt instrument, Title 42 was never intended to be used as a border management tool. Using it that way for three years allowed the United States to ignore the regional shifts in migration. It allowed the administration to put the minimum payment on the bureaucratic credit card, and it allowed Congress to continue ignoring its obligations to reform the immigration system. AILA and our partners like the American Immigration Council have been focused on offering solutions; some improvements have been made but Congress in particular has ignored the fact that real, meaningful reform requires a holistic approach to the entirety of immigration system, but that didn’t happen. So now the bill is due. With interest.
With House Republicans moving forward on unconstructive and harmful legislation, the Biden administration is trying to do border management without Congress. Expanding parole and refugee programs, creating regional processing centers, they are using executive branch tools to try and pay the bill. But, because Congress hasn’t acted, the administration is limited in its options. And limited options can lead to some very bad choices when a huge bill is due. The asylum transit ban, set to replace Title 42, is not an acceptable border management tool any more than Title 42 was. It is taking what we should value most as Americans – our commitment to helping our neighbors – and sacrificing it for an appearance of orderly process. The appearance of paying the bureaucratic bill, without actually paying it. This regulation makes refugees largely ineligible for asylum based on how they entered and whether they applied for asylum elsewhere and is modeled on Trump administration regulations – which Candidate Biden railed against, and which were struck down almost immediately. The asylum transit ban distills asylum access down to a lottery system on a glitchy phone app. Many of us have held our breath waiting for the results of a lottery-based ticket or permit for something fun that we wanted to do. But, what if your life depended on it?
The rationale given by the administration for the asylum transit ban emphasizes and re-emphasizes the need for orderly systems. But this cannot be a justification for the restrictions that the new rule is placing with access to asylum. The United States has a commitment – both legally and morally – to ensure that meaningful access to asylum is maintained. We should aim for orderly systems while also ensuring access to asylum at our borders in accordance with our laws and our humanitarian values. Sacrificing our values, and the lives of asylum seekers, in the name of bureaucratic efficiency without meaningfully changing anything about our immigration system is unacceptable. The bill is still coming due.