Asylum advocates have called on Joe Biden to undo dozens of policies under the Trump administration attacking the asylum process of the United States. These include the nicknamed “death to asylum” rule that was schedule to go into effect this week but was blocked by a federal judge. The rule would make it almost impossible to qualify for asylum, introducing new eligibility bars and further restricting an already difficult to satisfy and narrow refugee definition. Such measures reflect the Trump administration’s undemocratic break from even performative compliance with the rule of law, human rights, and our international legal obligations.
However, even before the Trump administration wrought havoc, our asylum system already failed to protect too many vulnerable individuals escaping life-threatening violence and seeking the protection that our laws promise. Contrary to alarmist allegations of exploitation of “loopholes,” the odds have long been stacked against asylum seekers.
If Biden truly wants to “save the soul of our nation” as he claimed during his campaign, to restore the best version of our national identity as a historic place of refuge for those fleeing persecution, he must do more than scrap Trump era policies and tackle four key problems for access to asylum that predate Trump.
First, the Biden administration must resolve the backlog of over one million cases pending in our immigration courts, where most individuals currently apply for asylum. This mess originated when the Bush administration ramped up interior enforcement and it skyrocketed under the Obama administration and Trump administration.
Biden promised to include an excellent proposed solution to overcome this hurdle: hiring more asylum officers to adjudicate all pending asylum claims at the USCIS asylum office. This would not only take cases off the overwhelmed dockets of immigration judges but also eliminate longstanding arbitrary discrimination in the asylum process.
Under existing rules, only asylum seekers who overstay their visas and unaccompanied children are allowed to apply at the asylum office, with officers trained to conduct nonadversarial and appropriate interviews. If their cases are denied, they next go to court to appeal. Conversely, adults and accompanied children who cross the border illegally are barred from consideration at the asylum office; they apply directly in immigration court, an adversarial and retraumatizing process.
There is nothing just or licit in denying due process to certain asylum seekers. International asylum law prohibits punishing individuals who flee their homes for crossing borders illegally rather than obtaining a visa, which is indeed virtually impossible for most in developing countries because of our very immigration policies. Accompanied children have the same developmental characteristics and similar vulnerabilities as unaccompanied children and should also be treated in appropriate ways. Ensuring all asylum seekers the right to present their claims at the asylum office would bring the United States into true compliance with our international obligations.
Second, Biden must end the practice of systematically detaining asylum seekers, including mothers with children, which became widespread under Obama. Detaining asylum seekers without just cause is prohibited under international law. It is also dangerous because it allows the coronavirus to spread like wildfire. The solution is simple: we release asylum seekers while they await their hearings. Over 85 percent of immigrants show up to their immigration proceedings. The number rises to 99 percent when they have legal representation.
Third, as other countries of asylum already do, the federal government must provide universal legal representation at no cost to all asylum seekers. This will not only ensure they show up to their interviews but also that they have a real shot at claiming protection in our complex asylum process, where it is virtually impossible to succeed without an attorney.
Finally, the Trump administration negated years of progress by attacking established case law on gendered persecution that allowed victims of domestic violence to qualify for asylum. We must not only scrap these draconian changes but also more broadly change course to remedy our longstanding failure to protect other vulnerable groups of individuals escaping violence.
Because of the narrow way asylum law is interpreted in our courts and at the asylum office, already under Obama, we routinely denied asylum to Central American children fleeing age-based persecution at the hands of gang members who forcibly recruit minors. The United Nations Refugee Agency considers their experiences eligible for refugee status, and we must do the same to protect the most vulnerable amongst those who flee their homes.
If Biden truly wants to save the soul of our nation, he must ensure genuine compliance with international law by dismantling not only the barriers in access to asylum erected by Trump but also those that existed before. Doing so will require the political will to champion access to justice and human rights that matches the energy devoted to violating human rights and igniting xenophobia over the past four years.
Chiara Galli is a postdoctoral fellow in sociology with Cornell University.