Immigration advocates slam Biden’s new border rules: ‘It’s a wealth test.’

Soon after taking office, President Joe Biden sent legislation to Congress to reform America’s immigration system, promising to restore fairness and compassion and reverse Trump-era policies that made it difficult for fleeing migrants to seek protection in the United States.

But rather than the sweeping immigration reforms promised, the Biden administration is instead being accused of stripping away migrants’ rights to seek asylum at U.S. borders and expanding the use of hard-line Trump-era policies like Title 42, the pandemic-era measure used during the last three years to quickly expel hundreds of thousands of migrants for public-health reasons back to Mexico or their home countries.

On Thursday, the administration announced that anyone seeking asylum at a U.S.-Mexico border checkpoint will now need to first book an appointment online by downloading a Customs and Border Protection app called CBP One. If an appointment is granted, asylum seekers will then need to go to a specified port of entry in Arizona, Texas or California. Also, the U.S. announced it will accept up to 30,000 legal migrants a month from Cuba, Haiti, Nicaragua and Venezuela while expelling others who illegally cross the border under Title 42. To apply, the migrants from those four countries, who will be allowed in for two years and allowed to work, will need to go online.

While advocates welcomed the opening of the new legal pathway for migrants from the four nations, they heavily criticized the administration’s new border policies, calling them “a wealth test” that ignores the United States’ obligation to protect vulnerable people who are fleeing persecution and now requiring refugees to get a smartphone and data plan.

“We also must ask how implementing a system that requires migrants to have a smartphone with internet access and have a certain level of digital navigation skills to set their immigration appointments impact those desperately seeking safety, especially those who don’t speak English, or Spanish, or don’t manage a written language,” said Tessa Peti, executive director of the Florida Immigrant Coalition.

‘Imminent threats’

Melissa Crow of the Center for Gender and Refugee Studies at University of California Hastings College of the Law in San Francisco, said as Biden noted during his announcement about the new policies on Thursday, traveling to the U.S. to seek asylum is not a decision that any person takes lightly.

“People arriving at our border are often fleeing imminent threats to their lives. Not to mention that they may not have cellphones, reliable internet access or even be aware of the CBP One app,” she said, adding that Thursday’s announcement “represents a total abandonment of President Biden’s campaign promises.”

“It’s been deeply disturbing to hear the president affirm that seeking asylum is legal and have him pledge to create a safe and humane process at the border and then turn around and announce policies that further undermine access to asylum,” Crow, director of litigation, said Friday during a call with some of the 100 advocates who are part of the #WelcomeWithDignity Campaign for asylum rights. “These reckless policy decisions will exact a horrific human toll and will leave a lasting stain on the president’s legacy.”

READ MORE: New program for Cuban, Haitian and Nicaraguan migrants is complex. What you need to know

As humanitarian groups criticized the new policy announcement Friday, John Kirby, coordinator for strategic communications at the National Security Council in the White House, pushed back Friday.

“Obviously, we take a different view,” Kirby told reporters at a press briefing. “What we would say is this is a president who understands that safe and legal immigration into this country is a key cornerstone of our own security and prosperity, and that he is advancing ways to improve those legal pathways to entry.”

“He increased — dramatically increased — the number of refugees that we’re willing to take in from nations in the hemisphere. He also improved the process by which people seeking asylum can do that in, again, a legal, safe way,” Kirby added. “And we’re also, obviously, having to make sure that it’s legal migration that we’re focused on, and that illegal migration is curbed as best as we can through more stringent enforcement mechanisms. So it’s a balance.”

Cuban migration to the U.S. surged in 2022

According to U.S. Customs and Border Patrol data, migration from Cuba, Haiti, Nicaragua and Venezuela has increased following a lull after the implementation of Title 42, a policy to expel migrants implemented during the height of the COVID-19 pandemic. Since then, total numbers of migrants coming each country month have fluctuated, often seasonally or following political events or policy changes specific to migrants from a particular country of origin. Data show migration from Cuba increased the most since the beginning of 2022.

Source: U.S. Customs and Border Protection "nationwide encounters" from fiscal year 2020 to December 2022.
Susan Merriam | McClatchy and Ana Claudia Chacin | Miami Herald

In announcing the changes, Department of Homeland Secretary Alejandro Mayorkas insisted that the administration is still preparing for the end of Title 42, and that the new measures are to provide for safe and orderly processes at the 2,000-mile U.S. Mexico border, where migrant surges often convey images of chaos and confusion.

Mayorkas said the new rules are a reflection of an administration that is “doubling down” on its collaboration with other countries in the region following last year’s Summit of the Americas in Los Angeles. During the summit, regional leaders along the migratory chain, which stretches from South to Central America to Mexico, agreed to create legal pathways for migrants and better enforce their borders.

‘Inhumane’ policy

But even Biden’s own congressional supporters, like Democratic U.S. Sen. Bob Menendez of New Jersey, who sponsored his comprehensive immigration overhaul bill in the Senate, aren’t completely on board with the new changes. Menendez and three other Democratic senators have condemned the policy announcement, which includes a potential asylum ban for those who fail to apply for asylum in a third country while in transit to the United States.

In a joint statement, the senators said while they welcomed the increased possibility of the U.S. allowing Cubans, Haitians, Nicaraguans and Venezuelans into the country under the new parole program, the new measures still make migrants vulnerable to traffickers.

U.S. Sen. Bob Menéndez
U.S. Sen. Bob Menéndez

“This narrow benefit will exclude thousands of migrants fleeing violence and persecution who do not have the ability or economic means to qualify for the new parole process,” Menendez said in the statement with senators Ben Ray Luján of New Mexico, Alex Padilla of California and Cory Booker of New Jersey.

The continued used of Title 42, “a failed and inhumane Trump-era policy,” will do nothing to restore the rule of law at the border, the lawmaker said, adding that they are “deeply disappointed by the Biden administration’s decision to expand” use of the public health rule.

“Instead, it will increase border crossings over time and further enrich human smuggling networks,” the statement said.

At issue for most critics is the continued and expanded use of Title 42, whose controversial use by the Trump administration was criticized by Biden on the campaign trail and whose termination last month was blocked in court by Republican governors in border states. The U.S. Supreme Court is scheduled to hear oral arguments on March 1.

“Title 42 was a kind of somewhat cynical effort by the Trump administration to prevent people from crossing into the United States or even applying for asylum. It was a sweeping over-extension of what was a public health measure, to deal with an immigration crisis,” said Michael Posner, a former Obama administration official who is currently the director of the New York University Stern Center for Business and Human Rights. “I think to the extent that the Biden administration is continuing to use Title 42, is a mistake.”

Posner said the border policies announced by the Biden administration this week can best be described as “a piecemeal approach to a crisis” whose responsibility for resolution rests partly with the Biden administration and a Congress, which refuses to look at comprehensive immigration reform.

Asylum backlog

For 50 years, Posner said, U.S. law has allowed people who come to the border to apply for asylum to seek protection from persecution. He acknowledges that, with an asylum application backlog of 1.7 million cases that can take at least four years to resolve, the system is broken and needs addressing.

“President Biden is going to the border next week and it’s going to heighten public attention to these issues,” Posner added. “But this is a moment for the Biden administration to basically stand up for the principle of asylum; stand up and push to Republicans who are in disarray to provide the kinds of resources to fix the asylum paralysis, so that it is a viable alternative and you don’t have people taking advantage of that system, because it’s broken. We need a system that allows genuine refugees to apply for asylum but filters out those who are simply using the law as a way to get into the United States and don’t have a viable claim.”

Immigration advocates agree.

Amnesty International condemned the administration’s new measures as an “attack on the human right to seek asylum.”

Amy Fischer, Amnesty International USA Advocacy Director for the Americas, said the Biden administration has “fully reversed course on its stated commitment to human rights and racial justice by once again expanding the use of Title 42, announcing rule-making on an asylum transit ban, expanding the use of expedited removal, and implementing a new system to require appointments through a mobile app for those desperately seeking safety.”

“These new policies will undoubtedly have a disparate impact on Black, Brown, and Indigenous people seeking safety,” she said. “In fact, Amnesty International previously found that the cruel treatment of Haitians under Title 42 subjected Haitian asylum seekers to arbitrary detention and discriminatory and humiliating ill-treatment that amounts to race-based torture.”

Eleanor Acer, senior director for refugee protection at Human Rights First, said Friday that despite the Biden administration’s “plans to add some tweaks to their asylum ban at the end of the day, it’s an asylum ban, which is a policy straight out of Trump’s playbook.”

“The pursuit of an asylum ban would be a tremendous political miscalculation that will play into the hands of allies of the former administration by bolstering their messages and normalizing their agenda,” Acer said. “It will cause disorder rather than order, turn away Black and Brown refugees who suffer great harm, separate families and subvert refugee law and human rights.”

Citing a December 2020 report by the group, Acer said Human Rights First tracked over 13,400 reports of kidnapping, torture, rape and other brutal attacks against asylum seekers who were blocked by the U.S. or expelled back into Mexico under Title 42 since Biden took office two years ago.

Also of concern is that the United States is outsourcing its obligations to countries that don’t necessarily have a good track record with asylum claims, or the treatment of migrants. For example, while Mexico was the world’s third most popular destination for asylum-seekers in 2021 after the U.S. and Germany, according to the United Nations, studies show that Haitians and Cubans have low approval acceptances.

Immigration advocates say while the administration has touted that the new parole program for Cubans, Haitians and Nicaraguans is being based on the “success” of a similar program for Ukrainian and Venezuelan refugees, they remain concerned that only middle-class individuals with valid passports, access to the internet and the ability to purchase their tickets to the U.S. will be able to benefit.

Acer said Human Rights First has found flaws in the Venezuela parole program, which remains inaccessible to many of the most vulnerable refugees in need of protection.

“That is a humanitarian disaster. Far from being a success, the Biden administration’s decision to expand use of Title 42 to expel people seeking asylum from Venezuela has also been a humanitarian disgrace. So too will be an expansion of Title 42 to expel people seeking asylum from Cuba, Haiti and Nicaragua,” she said

. “We recommend that the Biden administration do all it can to restore refugee law at ports of entry and along the borders; maximize its capacity to process asylum seekers swiftly through ports of entry [and] increase an improved safe pathway for migrants seeking travel to this country.”