Advocacy groups call on Biden to reverse ‘asylum ban’

A broad array of civil rights, human rights and immigration advocacy groups led by Human Rights First is calling on the Biden administration to reverse its plan to couple a border crackdown with increased pathways to legal immigration.

In a letter to President Biden, 292 groups took aim specifically at what they call an “asylum ban,” whereby potential asylum-seekers could be made ineligible for entry into the United States by virtue of escaping dangers at home or on the migrant trail.

“Your administration’s announcement of plans to establish a presumption of asylum ineligibility for individuals who do not use ‘established pathways to lawful migration’ and do not apply for protection in countries of transit advances the agenda of the Trump administration, which repeatedly sought to impose similar asylum bans,” the groups wrote. 

“Word-smithing, tweaks and spin do not change this reality.”

Administration officials have vehemently denied that their plans amount to an “asylum ban,” in part because they are including a series of humanitarian exceptions to their proposals to make certain migrants ineligible to claim asylum.

“I’ve seen the criticism of ‘It is a ban.’  But it is not a ban at all, and it is markedly different than what the Trump administration proposed.  What we are trying to do is draw people in a safe and orderly way, which is not the case now,” Homeland Security Secretary Alejandro Mayorkas told reporters en route to El Paso, Texas earlier this month.

Mayorkas added that migrants will have to apply for relief either in their countries or in countries they transit – as opposed to on U.S. soil after crossing the border – but that consequences for not doing so are subject to appeal.

“And if they were denied, then — then they are not subject to — not a ban, but a rebuttable presumption of ineligibility.  And there’s a marked difference between the two,” said Mayorkas.

Under a Biden administration asylum plan released earlier this month, the United States is issuing up to 30,000 monthly entry permits to would-be asylum-seekers from Venezuela, Cuba, Haiti and Nicaragua.

In exchange, the Biden administration has said it will return to Mexico an equal number of migrants from those countries who are encountered at the border.

“While we welcome the limited, temporary legal pathways for some nationals from Cuba, Haiti, Nicaragua and Venezuela, such pathways are neither asylum nor a substitute for asylum, and they do not excuse the legal damage and human suffering that has and will be inflicted by asylum bans or other policies that seek to impose harmful consequences on people seeking this country’s protection,” the groups wrote.

To be eligible for the entry permits, migrants must apply from their current location, whether in their home country or in a third country; if migrants cross an international border before applying, they become ineligible for the program.

The administration is due to issue a Notice of Proposed Rulemaking (NPRM) to formalize the plan, a planning stage which advocates see as an opportunity to nip the policy in the bud.

“We urge you not to issue the NPRM on the asylum ban,” the groups wrote.

The advocacy groups — which include heavyweights like the American Civil Liberties Union, UnidosUS, CHIRLA and Community Change — claim that ineligibility runs counter both to the spirit of the asylum program and to Biden’s personal campaign pledges.

“We call on you not to break your campaign promise to end restrictions on asylum seekers traveling through other countries,” the groups wrote.

In his campaign pitch on immigration, Biden pilloried former President Trump over his “misguided policies” and said cross-border crime was fostered “​​because Trump has misallocated resources into bullying legitimate asylum seekers.”

And as president, Biden has often been critical of the Trump administration’s attempts to undermine the asylum system, while maintaining many of the border management policies enacted under Trump to bring the hammer down on crossings.

Still, the Biden administration’s proposal for Venezuelan, Cuban, Haitian and Nicaraguan asylum-seekers is the first formal proposal to implement what advocates see as an asylum ban, also known as a “transit ban” or a “safe third country agreement.”

Advocates say such bans have rendered some legitimate asylum-seekers ineligible for protection and made the asylum process unnecessarily onerous for others, disproportionately affecting Black and indigenous migrants.

“For example, the asylum transit ban led the United States to deny asylum to a Cuban political activist persecuted for supporting an opposition movement, a Venezuelan journalist and her child, a student activist shot during a protest against the Nicaraguan government, and LGBTQ asylum seekers who had fled various countries where they are at risk of harm,” they wrote.

This story was updated at 3:59 p.m.