Washington Post: Biden’s Announced Asylum Transit Ban Undermines Access to Life-saving Protection

This op-ed was originally published in the Washington Post.

On Jan. 5, the Biden administration announced that it planned to issue a regulation “to provide that individuals who circumvent available, established pathways to lawful migration, and also fail to seek protection in a country through which they traveled on their way to the United States, will be subject to a rebuttable presumption of asylum ineligibility in the United States.”

These two reasons to bar people from seeking asylum — for transiting through other countries and for crossing the U.S. border without authorization — have different rationales and historical origins. But both have been marshaled against Central Americans since the late 1980s — severely undermining access to asylum. Doing so endangers people’s lives and breaks U.S. and international law. History reveals the purpose and perils of such bars.

No such bars stopped earlier waves of refugees seeking protection in the United States, especially those coming from Europe. When people who fled the Bolshevik Revolution applied to be considered “bona fide refugees” under a 1934 U.S. law, it did not matter that they had spent several years during the previous decade in Germany, France, China, Argentina, Cuba, Mexico or Canada and then crossed a land border without getting inspected by a U.S. official — as many did — beginning in the mid-1920s. They told immigration officials that conditions in those countries made it hard for them to live and it would be years before they could qualify for an immigration visa to the United States. So, they made their way to the United States on their own — and their mode of entry, and even their use of fraudulent travel documents, did not preclude them from adjusting to permanent status.

In the 1950s and 1960s, Congress passed several refugee laws that provided for the resettlement in the United States of people from communist countries who made it to certain Western European countries. During the Kennedy administration, a program was set up for people who had fled the Chinese mainland to Hong Kong. Reflecting an effort to perpetuate the country’s existing ethnic and racial composition and to attract the “best and the brightest” in the context of Cold War competition, priority for resettlement was given to people who had relatives in the United States or who were highly educated and skilled and the number of people who could be resettled was far beneath the demand. But nobody was barred from eligibility for refugee status in the United States unless they were “firmly resettled” in another country, with ties there and access to safety and permanent legal status (along with access to housing, work and education, i.e., the rights and opportunities of nationals of that country).

In 1968, the United States signed on to the Protocol to the 1951 U.N. Refugee Convention, which eliminated the original temporal and geographical limitations of the convention so that it applied to all people worldwide, not only to Europeans displaced by World War II. But U.S. officials generally did not conceive of migrants from the Americas as refugees in the 1970s. The exception was Cubans, who were treated as refugees whether they came directly from Cuba by sea or by air or indirectly by air from Spain or by land from Mexico.

The 1980 Refugee Act incorporated into U.S. law the U.N. Convention’s ideologically and geographically neutral definition of a refugee (i.e., anyone with a well-founded fear of persecution based on their race, religion, nationality, political opinion or membership in a particular social group). The law also said that any person could seek asylum at the border or within the United States “irrespective of status.”

Implicit in that last phrase was that, in accordance with international law, manner of entry does not impact the right to seek asylum and that the United States would adhere to Article 31 of the U.N. Convention and not penalize asylum seekers for unauthorized entry. Still, in the years that followed, immigration officials refused to give Salvadorans and Guatemalans who crossed the border a fair chance to seek asylum. As Immigration and Naturalization Service Commissioner Alan Nelson told Congress in 1984, “These people are, in fact, economic migrants,” with easy access to the southern border rather than asylum seekers fleeing persecution.

In the face of federal court rebukes of this cursory and discriminatory treatment of Central American asylum seekers by the end of the decade, Sen. Phil Gramm (R-Tex.) and the Federation for American Immigration Reform (FAIR) supported a bill that would bar from asylum eligibility anyone from South or Central America who did not apply for refugee resettlement in the United States from a transit country. But even the Reagan administration recognized this was a false option for Central Americans since U.S. consulates in Mexico — a country they transited — did not process them for resettlement in the United States (and generally denied them visas to travel to the United States). Indeed, in 1989, the U.S. government allocated just 3,500 refugee resettlement slots to people from all of Latin America and the Caribbean, which in practice went almost entirely to Cubans, while 53,000 slots were available to refugees from Vietnam and 24,000 for people from Eastern Europe and the Soviet Union, later supplemented with an additional 16,000.

But a related idea was percolating in Europe that would be taken up in the United States in the 1990s by the Clinton administration and then again during the Trump administration. The idea was that refugee status should be sought not from, but in, the first country that an asylum seeker transited and that, by agreement, states could forgo assessing claims and send asylum seekers to “safe countries.” Though this suggested xenophobia and hostility to asylum seekers, European officials and even the Office of the U.N. High Commissioner for Refugees rationalized it as a way of managing resources and distributing responsibility.

It certainly has not led to safety and dignity for asylum seekers in what are now called “front-line” European states or other states they have been sent to. Because of this system of restriction on access to asylum based on mode of travel and entry, Eritrean asylum seekers, who have extremely high grant rates in Europe, languish in Libyan prisons. Afghans made to stay in Turkey, considered a safe country by Greece, are blocked from seeking protection and are being deported by Turkey directly to Afghanistan.

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 made ineligible for asylum those coming from countries with which the United States had a safe third country agreement. According to the law, these agreements could be made with countries where the “life or freedom” of asylum seekers would not be at risk and where they “would have access to full and fair” asylum procedures. As one of numerous efforts to cut off Central Americans from asylum, President Donald Trump tried and failed to make such a safe third country deal with Mexico, which did not meet those necessary criteria. (Trump did get Guatemala to make such a deal for a brief time that led to harm and suffering for asylum seekers sent there from the U.S. border.) The Trump administration also promulgated a regulation that made ineligible for asylum in the United States any person who did not seek asylum in a country they transited. Human Rights First documented the prolonged detention, return to danger and family separations caused by the regulation. In the words of Justice Sonia Sotomayor, the regulation affected “some of the most vulnerable people in the Western Hemisphere.”

The Biden administration insists its regulation will be different because it has opened up new legal pathways from transit countries and it will give asylum seekers a chance to prove why they didn’t use one of the legal pathways available to them. But migrants from Guatemala and Honduras lack parole programs that are newly available only to Venezuelans, Nicaraguans, Cubans and Haitians who have passports and sponsors in the United States. Further, parole, discretionary temporary permission to enter and stay in the United States with no path to citizenship, is a far cry from permanent refugee status. Fifteen thousand refugee resettlement slots this year are for all of the Caribbean and Latin America, where over 7 million Venezuelans are displaced. It is hard not to see this rule as an effort to limit access to asylum in the United States specifically for people from northern Central America and to treat today’s forcibly displaced people from the Americas unlike people seeking refuge from elsewhere in the past. 

PHOTO CAPTION: Migrants live under difficult conditions at Anapra sector after snowfall as they wait at the southern border of the United States, in Ciudad Juarez, Mexico on January 2, 2022. (Photo by Christian Torres/Anadolu Agency via Getty Images)