What the Fxxx is Biden’s Asylum Policy?

Answer: To fudge it

Following a record of more than two million “encounters” by Border Patrol agents on the southern border, the Department of Homeland Security on October 12 announced new rules to reduce the arrivals of Venezuelans, one of the largest groups.

“Effective immediately,” it said, “Venezuelans who enter the United States between ports of entry, without authorization, will be returned to Mexico.”

Amid the legal tangle and political passions around immigration, however, the press release omitted as much as it said.

Crucially, it didn’t clarify how it would legally expel the Venezuelans into a third country. The answer came in another release the same day by the Mexican government, who U.S. officials had just been talking to. “Mexico will continue its unilateral policy of receiving migrants from Title 42 for humanitarian reasons,” Mexico’s foreign ministry said.

Title 42 hails from a 1944 public health act that stipulates people can be rapidly expelled if they might have an infectious disease. President Donald Trump applied it in 2020 when the pandemic was declared. But President Joe Biden promised to end it and his administration is engaged in an ongoing battle in federal courts to ban its use.

The U-turn by Biden to expand Title 42, along with Mexico’s help, has clearly got nothing to do with public health at this stage of the pandemic. It’s not even just about Venezuelans. It has got everything to do with a word that was not mentioned in either the U.S. or Mexican releases – asylum. And it reveals something about what Biden’s real policy is on refuge and the border compared to his rhetoric.

Immigration enforcement on the southern border used to be centered around those who cross without papers to work. But in the last decade, there has been a huge increase in people arriving to claim asylum, and this has sped up in the Biden years. They are largely not sneaking into the United States, but handing themselves into U.S. agents, either at border posts or between them, and making a case that going back home would get them killed or imprisoned.

Coming chiefly from Latin America, the asylum applicants have contributed to a backlog of 1.9 million pending cases in immigration courts (including asylum and other cases) – which could fairly be described as overwhelming the system. The claimants not only cite the repression of authoritarian regimes in Venezuela, Nicaragua and Cuba. They also cite the brutal organized crime violence from Mexico to Honduras to Brazil to Jamaica.  

Trump was open about his strategy to try and deter, or directly stop, people from claiming asylum. His measures went from the cruel family separations (perhaps the most unpopular feature of his entire administration) to the legally dubious “Remain in Mexico,” which made applicants wait in dangerous refugee camps south of the Rio Grande.

In campaign mode, Biden promised to throw out these Trumpian tactics and replace them with “a fair and humane immigration system” in line with “values as a nation of immigrants.” This appealed to a section of the Democrat base to whom migration is a core issue, and fit in with the idea of the party as progressive and caring.

Faced with the increasing numbers, however, the Biden administration is making it more difficult for people to apply for asylum with dubious measures such as Title 42 and working with Mexico to be a buffer to reduce the northward flow (As Trump and Barack Obama did). At the same time, Washington is still claiming to be making the asylum system more humane, with some tweaks such as attempting to speed up cases.

The result is a confused patchwork of laws and rules, and it is yet to be seen if this will actually slow the northward march. In short, Biden is fudging his asylum policy and avoiding the real debate.

Running From Police, Running From Gangsters     

Earlier this month, I stood on the U.S.-side of the border just north of Tijuana. A few dozen people had jumped over the fence from the Mexican side and were waiting inside a U.S. buffer zone so they could be processed. I talked through the bars to three men, who are pictured at the top. They were from Jamaica and said they had fled for their lives from gangsters who had killed family members.

The Jamaicans had no food and water and asked me when they would be taken in. I relayed to them what a border patrol agent had just told me – that the detention centers were full up. The agents had to wait for some space before they could make more arrests.

Anyone covering immigration has to be impressed by the personal struggles of every individual. You see men and women, tiny children, sprawling families, fleeing horrors and enduring intense hardships. But I don’t pretend that the answers are straightforward with the current number of people on the move.

Back in 2008, when Obama won the presidency, the main border issue was the millions of undocumented Mexicans crossing to work in the United States. Obama would not make speeches condemning migrants, like Trump did. But the great paradox is that the Obama government actually “removed” a record number of migrants from the interior of the country - more even than Trump did. This earned Obama the nickname “deporter in chief” in migrant activist circles. It also gave Biden a model to work on; you take one position in your rhetoric and another in practice.

During these Obama years, asylum applications started shooting up. The number of so-called credible fear assessments that were completed, the first stage in an asylum application, went from 5,500 in 2009, Obama’s first year in office, to 92,000 in 2016, his last.

The terms around refugees and migrants are confusing and hotly debated. Refugees tend to be considered those who flee for their life or freedom, and economic migrants flee from poverty. In reality, these lines are blurred and many run from both hunger and bullets.

Then there is a difference between the refugee program (USRAP), in which a designated number of refugees are awarded a place and flown in, and those who make it to the United States on their own and claim asylum. There is then a further difference still between those who come forward and apply, known as “affirmative asylum” and those who are in removal proceedings and apply for “defensive asylum.”

Latin America has seen the huge rise in asylum seekers, I believe, for three main reasons. First, you have a swing back to authoritarian governments, which followed the wave of democratization. The are various examples but the biggest basket case is Venezuela, where people have been repressed and half starved. The United Nations announced this month that more than 7 million Venezuelans have abandoned their homeland since 2015, more even than Syria.

The second factor is the rise of paramilitary organized crime. It’s not only Mexico, but gangs, cartels, posses and commandos operate in much of the continent, often in cahoots with police. They not only traffic drugs, but carry out violent shakedowns, rig votes, steal oil, and of course, help smuggle the same people fleeing them. They are a big reason why the vast majority of the world’s most murderous cities are in Latin America.

A third factor I believe is that those heading north have become more aware of their right to claim asylum. I have been with the UN Refugee agency as its reps hand out pamphlets to migrant caravans. Activist groups such as Pueblo Sin Fronteras have grown and become more present on the road. And the migrant smugglers, or coyotes, will also now offer the service of smuggling people in specifically so they can claim asylum.

Most claims from Latin America are turned down by U.S. judges. One recent breakdown found 85 percent from Mexico and 80 percent from Salvador were denied. However, the majority of 54 percent of Venezuelans were accepted. This is because asylum laws are more favorable to those fleeing governments than those fleeing gangs. Either way, the current backlog means that applicants can wait years in the United States for their hearing, a fact that many heading north are aware of.

“Do not come. Do not come.”

On taking office, Biden officials didn’t seem to have a concrete plan on asylum, and they may have been surprised by the sheer rate that the numbers rose. Since 2020, the backlog in immigration courts has spiked from 1.2 million to 1.9 million. There are now 311,000 pending cases of Hondurans alone.

Another sign is the number of people in a so-called “alternative to detention” program with immigration authorities, which includes many of those who are detained on the southern border and apply for asylum. This has almost quadrupled from 86,000 in January 2021 to 316,000 this September.

By mid 2021, we saw the tepid calls by Biden and Vice President Kamala Harris to stop the northward flow. The most memorable was a speech by Harris in Guatemala when she said, “Do not come. Do not come. The United States will continue to enforce our laws and secure our border.” Notably, Harris failed to mention the word asylum, instead talking about legal and illegal immigration. She avoided the real issue, which is more complicated than simply law enforcement.

The White House is taking some measures to deal with the backlog of cases. One is a pilot program to give asylum officers rather than judges the right to decide who can stay or go, to try and speed up the process. But that appears to have run into problems right away as most of those refused simply appeal to see a judge.

It is also turning back to Mexico as a trusted ally to reduce the flow of migrants with the military-controlled National Guard rounding them up. In turn, Mexico keeps favorable conditions for its half trillion dollars in annual trade and the White House doesn’t criticize Mexico’s swing towards militarization.

There are soaring asylum applications in Mexico as well, with more than 130,000 in 2021. Incredibly, this made Mexico the third highest recipient of claims in the world after the United States and Germany, according to a report.

In the latest announcement, Homeland Security said it will run a form of special refugee program for 24,000 Venezuelans, who it will screen and bring to the United States. On the ground at the border, though, thousands more were being turned away, and demonstrations broke out with Venezuelans standing on the riverbank with signs saying “Help me,” and others in more combative scenes rioting in a detention center.

For many, of all nationalities, there is just confusion. Title 42 is used on some migrants some of the time but others get taken it. Some manage to apply for asylum at border posts but many others get turned away. Many are scraping around for information from those who run migrant shelters, but they can be equally confused.

Such uncertainty comes from such a fudged policy. It would seem hard that Washington can keep on using Title 42 forever, especially as its own court challenge may strike it down. But then it could search for another legal maneuver to turn people away, further entangling the rules.

The asylum issue will not go away though, and at some point the United States may have to forge a coherent policy on it. And in doing so, it may have to tackle the fundamental question of whether it really honors the right of people from across the world to come and seek refuge, or whether it does not.

Photos by Ioan Grillo, CrashOutMedia 2022