Biden must not trade away the right to seek asylum

On the eve of a U.S. presidential election year and under the shadow of wars in Ukraine and Gaza, asylum seekers and refugees have become chips on the Capitol Hill bargaining table.

What risks being lost in this high-stakes game is a recognition that fundamental human rights are not negotiable, including “the right to seek and to enjoy in other countries asylum from persecution” enshrined in the Universal Declaration of Human Rights.

Republican leaders are demanding drastic changes in decades-old U.S. immigration law that, in effect, would end the right to seek asylum on U.S. territory and mandate detention for any asylum seekers who manage to lodge claims. Their big bargaining chip is the $110 billion emergency aid bill for Ukraine and Israel, which includes an additional $5.3 billion for Customs and Border Protection and $2.3 billion for Immigration and Customs Enforcement, among other increased funding for Department of Homeland Security operations.

Seeing the Ukraine and Israel funding as essential, and desperate to cut a deal before Congress goes into recess, the Biden administration has reportedly agreed to “a new border authority to expel migrants without asylum screenings, as well as a dramatic expansion of immigration detention and deportations.”

Many of the border enforcement and immigration control policies the Republican leaders are seeking to codify are already being practiced by the Biden administration. But they are currently either undertaken with the flexibility to make case-by-case exceptions, or legally bound by other due process guardrails that lawmakers are trying to eliminate.

For example, Republican negotiators would require asylum seekers transiting through another country to file claims in that country before reaching the U.S. The Immigration and Nationality Act has a “safe third country” provision, but it requires such countries to meet standards, such as providing access to full and fair asylum procedures.

Similarly, Republican leadership is demanding, and the White House appears open to, mandatory detention of asylum seekers. Yet the Immigration Act already makes detention mandatory for new arrivals awaiting interviews under expedited removal provisions, to determine whether they have a credible fear of persecution in their home country and might qualify for a full asylum interview. Detention already continues even after an asylum officer has determined the applicant has a credible fear, unless Homeland Security exercises discretion.

Stripping that last shred of discretion would predictably increase the likelihood of harm, especially to asylum seekers who have experienced violence and abuse, because of disgraceful conditions of immigration detention, inadequate medical care, separation of families, impeded access to legal representation, sexual abuse, and discriminatory treatment.

The UN Office of the High Commissioner for Refugees detention guidelines caution that detaining asylum seekers is “inherently undesirable” and “in many instances, contrary to the norms and principles of international law.” Alternatives to detention have been shown to be less expensive, less harmful, and just as effective in ensuring that asylum seekers and migrants will show up for their immigration proceedings.

The impact of mandatory detention on asylum seekers will be even greater if the White House and Senate Democrats accept another reported Republican demand: the nationwide expansion of expedited removal for the first two years after arrival, which is currently limited to recent arrivals at or near the border. Expedited removal puts new arrivals apprehended at or near the border on a fast-track for deportation if they are not able to show a “credible fear” of being persecuted in their home countries. This would open the prospect of country-wide racial profiling and short-cutting due process for immigrants facing deportation.

But perhaps the most fundamental and far-reaching demand on the table is to ratchet up the standard in credible-fear screenings. Republican negotiators are demanding that the current “significant possibility” of having well-founded fear of persecution should be changed to a “more likely than not” probability. The change would have serious implications for the standard needed to establish an asylum claim and thus access an asylum hearing before an immigration judge.  

In the landmark 1987 case INS v. Cardoza-Fonseca, the Supreme Court explicitly rejected a “more likely than not” asylum standard, saying that even “a 10 percent chance of being shot, tortured, or otherwise persecuted” should be enough to be granted asylum.

It’s unfortunate that domestic immigration policy ever got mixed up in emergency foreign policy funding. Biden and members of Congress who will be voting on the supplemental aid package should think hard about what is and isn’t fair game for negotiation.

Negotiating over how much to fund the Department of Homeland Security is perfectly fine. But erecting barriers to right to seek asylum, or raising to unreasonable and unreachable heights the standard a person with legitimate fears must establish, is not all right.

Bill Frelick is the refugee policy director at Human Rights Watch.