The Biden Administration at One Year: Urgent Recommendations for Upholding U.S. Refugee Law, Restoring Asylum, and Saving Lives

One year after President Biden took office, his administration has taken steps to end some Trump administration policies that blocked refugees from asylum but has failed to take critical steps to end others. The Biden administration has continued to embrace, wield, and defend the Trump administration policy of evading refugee law by citing specious public health concerns, blocked and expelled thousands toward danger, and failed to comply with asylum law at the southern border.

Some welcome steps have included President Biden’s direction in his February 2021 executive order to review Trump administration policies, a Department of Justice (DOJ) memoranda to end “zero tolerance” family separations, the memoranda terminating the Remain in Mexico policy, a partial wind-down of that policy that brought nearly 13,000 people into safety in the United States, and the vacating of several Trump administration Attorney General rulings that denied refugees asylum. However, many other commitments made by President Biden have not been fulfilled yet, including his executive order’s direction to resume reception and processing of asylum seekers. Although President Biden promised to restore asylum and end the Trump administration “Remain in Mexico” policy, the Biden administration recently restarted that program in the wake of a lawsuit brought by Trump allies.

The Biden administration’s choice to use the similarly horrific “Title 42” policy to evade refugee law has stained President Biden’s record and endangers—every day that it and similar Trump policies remain in place—the lives of people seeking this country’s protection. Through its use and embrace of this policy the Biden administration is flouting and subverting U.S. refugee law and international treaties, as a former top State Department legal expert and senior diplomat both confirmed. Since President Biden took office one year ago, Human Rights First has tracked over 8,700 reports of kidnappings, brutal assaults, and other attacks suffered by asylum seekers and migrants blocked or expelled due to this policy. The U.N. High Commissioner for Refugees (UNHCR) and other international authorities have repeatedly and publicly called on the Biden administration to end the policy and stop violating refugee and human rights law—rare public rebukes that reflect the deep damage inflicted globally by this continued subversion of refugee law. Despite highly dangerous conditions in Haiti, the Biden administration has used Title 42 to expel 14,000 adults and children directly to Haiti since September 2021, purposefully denying them asylum hearings or even the fear inquiry required in expedited removal.

The administration’s choices have triggered condemnations from international authorities and agencies, civil rights and human rights leaders, public health experts, refugee protection agencies, and members of Congress. Far from helping President Biden politically, this embrace of Trump policy has perpetuated disorder, inflated border apprehension numbers, bolstered racist tropes that paint immigrants as disease threats, undermined the credibility of professed commitments to human rights, played into the hands of Trump allies seeking to entrench his policies, and painted the administration as willing to sacrifice American ideals to appease perpetrators of xenophobic and racist rhetoric.

The Biden administration must immediately change course, renew its commitment to uphold human rights, reject Trump-era policies, and shift to a genuine humanitarian response, led by humanitarian agencies, that upholds refugee laws and effectively manages and resources refugee reception. The recommendations below follow multiple sets of blueprints and recommendations previously issued and outline critical steps including:

• End the use of Title 42 and take all steps legally permissible to terminate Remain in Mexico (RMX);
• Rescind the asylum entry and transit bans and other Trump policies that punish or block refugees from protection;
• Restore compliance with refugee law immediately – including restarting asylum at ports of entry;
• Employ effective and humane reception and case support rather than rights-violating detention; and
• Improve asylum processes so that they are fair and timely.

In addition, as detailed in other recommendations, Biden administration efforts to address migration in the Americas must center human rights and encourage countries to ensure access to asylum.