NGO Letter to Biden Administration Welcoming Asylum Executive Order, Urging Swift Rescission of Harmful Policies

Dear President Biden:

The executive orders your administration issued last week are welcome initial steps toward ending the illegal and inhumane asylum and border policies implemented by the Trump administration. The undersigned faith-based, legal, humanitarian, and human rights organizations urge your administration to swiftly rescind the harmful policies still in place, provide refuge to children, families, and adults fleeing persecution and torture in compliance with U.S. law and treaty obligations, communicate and coordinate with civil society groups assisting asylum seekers, and ensure sufficient resources are dedicated to guarantee a humane and dignified reception of people seeking protection.

We applaud your administration’s rescission of some unlawful Trump administration policies, including the asylum entry ban proclamation, the use of fast-track deportation programs that block asylum seekers from access to legal counsel, and the “zero tolerance” policy that led to large-scale family separations. We also welcome the State Department’s announcement, following your directive to review the asylum cooperative agreements, that it “has suspended and initiated the process to terminate” these agreements, which transfer asylum seekers to countries that are not safe for refugees and do not have functioning asylum systems.

Your executive order issued on February 2, 2021 directs prompt review of some Trump administration policies, including the Migrant Protection Protocols (MPP), the misuse of Title 42 public health authority, and the third-country transit ban. We urge your administration to complete rapid reviews of these and other policies listed in the order and to end them expeditiously. Their illegality and devastating consequences are abundantly clear. Public health experts have repeatedly confirmed that policies to block and expel asylum seekers do not safeguard public health. Review of expedited removal and asylum eligibility, as indicated in the order, are also crucial, and we look forward to engaging with your administration on needed reforms.

Every day that holdover Trump administration policies remain in effect, people seeking U.S. humanitarian protections are being turned away or expelled to places where their lives are at risk in violation of U.S refugee and anti-trafficking laws and treaty obligations. Last week a dozen Mexican police officers from a reportedly U.S-trained unit were implicated in a January 2021 massacre of Guatemalan migrants in the state of Tamaulipas, where the United States continues to expel individuals under Title 42 and where thousands of people await MPP adjudication of their requests for asylum in the United States. There were already over 1,300 public reports of rape, kidnapping, and assault against people forcibly returned to Mexico under MPP alone. Haitian migrants, including asylum seekers, are being expelled to the country they fled without access to the U.S. asylum system. Families and adults, including asylum seekers, continue to be expelled to Mexico. In addition, the third-country transit ban – an interim version of which was vacated and enjoined by separate federal courts – was finalized in late December 2020 by the Trump administration and is now back in effect. It bars asylum for virtually all refugees seeking protection at the southern border and separates refugee families. A deportation flight to Cameroon, which had included asylum seekers denied protection because of the illegal third-country transit ban, was cancelled this week just hours before takeoff.

As the administration reviews these policies, each day counts. Many families seeking asylum in the United States remain separated, torn apart by U.S. border officers who forcibly returned or expelled their family members alone to Mexico. While the review takes place and as the Department of Homeland Security (DHS) begins to receive, rather than block or expel, people seeking protection in the United States, the administration must ensure that:

• local Customs and Border Protection and Immigration and Customs Enforcement officers adhere to interim instructions and guidance;
• DHS and other relevant agencies coordinate and communicate effectively with NGOs that have been preparing to receive and assist asylum seekers;
• asylum seekers are not sent to immigration detention but released through parole or other legal authority and referred to case-management services operated by non-profit organizations for additional immigration court appearance support where needed;
• children arriving at the border are protected, guaranteed fair opportunities to seek relief, and relevant agency policies and procedures ensure consideration of the best interests of the child in every decision and compliance with the Trafficking Victims Protection Reauthorization Act;
• adequate financial, logistical and other support for organizations and local governments sheltering and arranging onward transportation is provided to ensure the humane and orderly reception of people seeking protection in the United States; and
• support is distributed to UNHCR, shelters, and other civil society organizations that provide for the basic needs of people forced to wait in Mexico.

In the coming days, your administration must also swiftly address other harmful and illegal policies not mentioned in the Executive Order that block, punish and deny relief to children, families and adults seeking humanitarian protections in the United States, including:

• asylum turnbacks through the so-called “metering” of asylum seekers at ports of entry, which effectively deprives them of access to the U.S. asylum system;
• detention of asylum seekers, including families, and denial of parole, which illegally punishes people seeking refugee protection in the United States, as well as reports of discriminatory detentions and release denials of African and other Black asylum seekers and migrants;
• a slew of regulations, policies, and Trump administration Attorney General rulings that aim to undermine U.S. refugee law through executive action, subvert due process norms, and rush immigration court adjudications;
• criminal prosecutions for unauthorized entry/re-entry, including of asylum seekers, in violation of U.S. treaty obligations;
• review politicized hiring and promotion of immigration judges and Board of Immigration Appeals members biased against asylum seekers and other immigrants;
• lack of appointed counsel for people in removal proceedings, including children and indigent asylum seekers; and
• cruel restrictions on work authorization, denying asylum seekers the ability to support themselves or forcing them to work informally under exploitative conditions as they wait adjudication of their claims. Delayed access to work authorization should be reviewed especially in light of the lack of federal or state assistance to asylum seekers during the lengthy adjudication period.

Finally, we are grateful to see your administration commit to restarting the Central American Minors (CAM) program, which provided a pathway to safety through resettlement or humanitarian parole for children from the Northern Triangle of Central America by reuniting them with a parent in the United States. As your administration initiates this process, we recommend:

• providing necessary resources to ensure the safety of children waiting for reunification, access to legal orientation and counsel, and application preparation support;
• ensuring CAM parolees can receive Office of Refugee Resettlement (ORR) services, have a path to permanent immigration status, and that parents in the United States reunifying with CAM parolees are protected from deportation to avoid family separations; and
• extending CAM to cover young people who aged out while CAM was terminated or have other relatives in the United States who could safely care for them, and considering a program to allow parents to reunite with children in the United States as parolees or asylees.

To ensure communication and address emergent issues during the review of these policies, we respectfully request that your administration:

• immediately designate public DHS liaisons for urgent cases, including impending deportations, Title 42 expulsions, individuals in MPP facing extreme harm or with medical vulnerabilities, and other emergent matters;
• convene regular engagements between officials from DHS, Health and Human Services, the Centers for Disease Control and Prevention and other relevant agencies with legal service providers and other groups working with asylum seekers; and
• publicly provide timeframes for review and further agency actions, including a timeline for transiting asylum seekers forced to remain in Mexico due to MPP and/or Title 42 to safety in the United States.