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US Department of Homeland Security Secretary Alejandro Mayorkas speaks at a press briefing at the White House in Washington, DC on May 11, 2023. © 2023 Sipa via AP Images

(Washington, DC) – President Joe Biden’s new border plan focused on deterrence will almost certainly lead to a rise in the already record number of migrants dying at the United States southern border, enrich criminal cartels, and return refugees to likely harm, Human Rights Watch said today.

Biden’s “asylum ban,” announced in a rule in the Federal Register on May 10, 2023 is set to replace the abusive Title 42 summary border expulsion policy originally created by the administration of President Donald Trump under the false premise of protecting public health.

“Despite having more than two years to plan for the end of Title 42 and campaigning on promises to create a humane border, Biden has recycled one Trump policy after another, leading to countless abuses of mostly Black and Brown migrants,” said Ari Sawyer, US border researcher at Human Rights Watch. “His latest plan replaces Title 42 with a policy that continues to rely on failed and deadly deterrence and would bar people from applying for asylum.”

Biden’s new plan combines elements from Trump policies, including Title 42; a hyper-expedited deportation program that after due process abuses was scrapped when the expulsion policy took effect; and the asylum “third country transit ban,” found unlawful by two federal courts under the Trump administration.

The revamped asylum ban will block asylum seekers at the border from entering the United States for five years unless they obtain an appointment through the cellphone application “CBP One.” Appointments are extremely limited and usually book up within minutes, meaning that asylum seekers wait for months, trying each day to secure a spot. The result is electronic “metering” – forcing asylum seekers to wait in dangerous conditions at the border for an indeterminate amount of time.

Mexican President Andrés Manuel López Obrador has agreed to accept non-Mexican asylum seekers who are rapidly removed by the United States. Since the implementation of the ‘Remain in Mexico’ policy in 2019 and Title 42 in 2020, asylum seekers sent to Mexico have experienced kidnapping, rape, extortion, and other abuses by organized crime and Mexican officials.

By continuing these rapid removals, albeit with a new legal justification, Biden and López Obrador are knowingly continuing to put asylum seekers at risk, Human Rights Watch said. When the United States sends migrants to Mexico, criminal cartels are enriched by kidnapping them and then extorting money from their US-based family members to secure their release.

The United States is obligated under international law to respect the principle of nonrefoulement – the obligation not to return a person to a country where they are at risk of persecution, torture, or other irreparable harm.

Asylum seekers who turn themselves in at or between ports of entry without accessing one of the very limited appointments on CBP One may be held in inhumane conditions in Border Patrol custody, where they will be processed for expedited removal, which does not afford asylum seekers adequate due process protections. Federal asylum officers who will be obligated to rapidly adjudicate claims under the rule have spoken out against the policy, saying it is “inconsistent with the asylum law enacted by Congress, the treaties the United States has ratified, and our country’s moral fabric and longstanding tradition of providing safe haven to the persecuted.”

The CBP One app itself is discriminatory and impedes effective access to asylum for many people whose circumstances are such that they already face increased risks. It has frequently crashed due to the handful of appointments available each day and is not accessible for people who don’t have a smartphone, internet access, or a safe place to stay. It also further disadvantages Black and Brown asylum seekers, as it uses facial recognition technology with an inherent bias against darker-skinned people.

The new rule says that narrow exceptions will be made for people who can show they could not access the application, do not speak one of the available languages, or are illiterate, but officers of Customs and Border Protection (CBP), an agency that has abused border crossers and residents with near-total impunity, will make those decisions. CBP agents have been caught lying on official paperwork for asylum seekers and have routinely performed illegal turnbacks of asylum seekers at ports of entry.

The administration claims that using expedited removal for people who cross between ports of entry or do not make an appointment will disrupt smuggling networks. On the contrary, with no other way to access protection, asylum seekers are more likely to engage smugglers, further enriching criminal cartels, Human Rights Watch said.

It is also likely that the new rule will lead people to take greater risks to try to enter the United States undetected. Deterrence policies, including border militarization, have already driven border deaths to record numbers under the Biden administration. Under the Trump administration, border deaths averaged about 300 each year – an already unconscionable number – but that number skyrocketed in fiscal year 2022, when, under the Biden administration, more than 850 people died while crossing the border, often to seek safety, reunite with family, return home, or improve their lives.

“The Biden administration claims this policy is humane, but there is nothing humane about turning back asylum seekers at the border, and deterrence policies have long been known for their deadliness,” Sawyer said. “Biden should stop copying Trump at the border and finally follow through on his promises to create rights-respecting border policies.”


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