The Asylum-Blocking Policies Continue

The expansion of Title 42 to allow for the expulsion to Mexico of citizens from Cuba, Nicaragua and Haiti, announced by President Biden today, will prevent numerous protection-seeking migrants from entering the country and is certain to endanger many of them.

Among other measures to address the arrival of migrants and asylum seekers at the U.S.-Mexico border, President Biden also announced an expanded humanitarian parole program for individuals of those nationalities who have a U.S.-based sponsor and appropriate documentation.

In addition, the Department of Homeland Security (DHS) and the Department of Justice expressed their intent to issue a proposed rule by which migrants who fail to enter through a legal pathway, including the parole program, or who don’t first seek protection in another country through which they transited, would be ineligible to seek asylum in the United States. This action is reminiscent of prior “transit ban” asylum bars, including a 2019 Trump administration initiative, that have already been ruled illegal. 

The Washington Office on Latin America (WOLA) is dismayed that in its eagerness to reduce the number of migrants arriving at the United States’ border to seek protection, the Biden administration has again negotiated with Mexico the expansion of a program that a U.S. federal judge had already ruled “arbitrarily and capriciously” violates U.S. law, and has no basis in public health. The program has also resulted in over 13,000 crimes against migrants who have been blocked from entering the U.S. or expelled to Mexico during the Biden administration, according to human rights organizations.

DHS will begin the new parole process for individuals from Nicaragua, Haiti, and Cuba while continuing with the program for Venezuelans that was announced in October 2022. DHS announced it will admit 30,000 individuals from these four countries per month. 

The Mexican government has also agreed to receive 30,000 migrants expelled from the United States from these countries per month, in addition to continuing to receive its own citizens and citizens from Guatemala, Honduras and El Salvador who are expelled under Title 42. 

Although expanding legal pathways for a select number of individuals is a welcome step, the monthly number of admissions remains limited considering that over 134,000 citizens from Nicaragua, Cuba and Haiti were encountered at the border in October and November 2022. As occurred with the announcement of the Venezuela parole program, DHS stated that “Individuals who enter the United States, Mexico, or Panama without authorization following today’s announcement will generally be ineligible for these processes.” This will leave thousands of migrants stranded throughout the route and place additional burden on those countries. 

In essence, the new parole program apart from providing only temporary permission to reside in the United States, would establish a double system of ineligibility for people to seek asylum: access to asylum would be denied to individuals from eligible countries who are unable to use the parole program, and the parole program would be restricted to those who meet certain requirements and would be closed to those who have crossed borders without authorization.

WOLA witnessed the effects of this model on Venezuelans at the U.S.-Mexico border in November 2022, where we spoke to dozens of families, some living in an unsanitary encampment, who were stranded with no legal pathway to seek protection. Since December, new encampments have sprung up in Matamoros, Reynosa, and Mexico’s southern border-zone city of Tapachula.

At the same time, as long as Title 42 remains in place, asylum seekers from Mexico, Guatemala, El Salvador, and Honduras will continue to see serious limits on their ability to seek protection in the United States, while migrants from other nationalities may still be admitted. 

Increased legal pathways outside the asylum system are essential, as is the administration’s announcement that it will triple to 20,000 the number of refugees from Latin America and the Caribbean whom the United States will admit for FY2023 and 2024. Ongoing cooperation with other countries in the region through the framework established in the Los Angeles Declaration on Migration and Protection is also vital. Nevertheless, none of these measures can replace the right to seek asylum at the U.S. border, which for decades has been a basic element of U.S. immigration law. 

Today’s announcement outlines a system that, apart from providing only temporary permission to reside in the United States, will block the most vulnerable from accessing protection. The right to seek asylum, enshrined in U.S. and international law, is based on the understanding that a person forced to flee their home due to persecution has the right to protection without having to meet additional requirements such as those outlined today. 

As long as Title 42 or other asylum-blocking policies close the U.S.-Mexico border to asylum, thousands of people will have no legal pathway to safety. U.S. policies will force them to take dangerous, hidden migration routes, where they are more likely to fall prey to kidnappers, extortionists, sexual predators, and corrupt migration and law enforcement officials. As the Title 42 experience has shown, such policies have a disproportionate impact on Black and Indigenous populations.

Today’s expansion of Title 42 expulsions into Mexico is the latest in a long line of rights-violating U.S. border policies to which Mexico’s government has agreed. Over the last several years, Mexico has received thousands of people expelled across its northern border under Title 42 without the chance to seek asylum; participated in the now-defunct “Remain in Mexico” program, under which asylum seekers were forced to wait in Mexico during their U.S. asylum cases; and participated in chain expulsions of migrants and asylum seekers to other countries without the opportunity to access protection. The Mexican government has also imposed visa requirements on several South American nationalities at the request of the United States, and deployed military troops to its borders to block migration. The thousands of reported attacks against families and individuals expelled to Mexico under Title 42 demonstrate how maintaining and expanding expulsions increases the danger facing asylum seekers. 

Far from combating human smuggling and organized crime at the border, these U.S. and Mexican government actions place asylum seekers into the hands of criminal groups waiting to prey on them. In many cases, organized criminals are waiting at the very sites where expulsions take place. It is also entirely unclear how Mexico intends to provide for the safety and other needs of an additional 30,000 expelled people per month in its territory.  

WOLA recognizes the need for increased legal pathways for migration and enhanced cooperation to address the current migration flows at the regional level. However, measures to further restrict access to asylum at the U.S. border, and to outsource migration and protection related roles to Mexico and elsewhere, suggest that rather than working to create a rights-respecting reception system at the border, the Biden administration is continuing to prioritize enforcement and deterrence at the expense of the safety and well-being of vulnerable, protection-seeking migrants.