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Article by Hayley Dick | June 10, 2024 | Global Rights Defenders
Introduction
Migration in North America is impacted significantly by the US-Mexico border with 2.5 million asylum seekers and migrants entering the US in 2023. Most asylum claims are made by individuals from Latin America and the Caribbean nations, notably Cuba, Nicaragua, Colombia, Venezuela, Honduras, and Haiti. The sheer volume of asylum claims has overwhelmed border infrastructure, with a record number of encounters with asylum seekers in 2023.[1] While domestic and international law guarantee the right to seek asylum for anyone within or arriving at US borders, several policies enacted over the past decade have obstructed asylum seekers from exercising their right, violating both domestic and international law.[2]
Most recently, the Biden administration implemented the Circumvention of Lawful Pathways Final Rule, commonly referred to as the Final Rule, aimed at deterring illegal migrant border crossings while promoting safe and lawful pathways for migration. It establishes a rebuttable presumption of asylum eligibility for individuals entering the US from the US-Mexico border without authorization. Certain expectations exist, including individuals permitted to travel to the US by the Department of Homeland Security, those who applied for asylum in a third country but were denied, and those who arrived at a port-of-entry utilizing US Customs and Border Protection’s application, known as CBP One.[3] However, since 2023, the CBP One application has become the primary method for processing asylum claims at ports of entry, yet it has been plagued with issues that hinder asylum seekers, highlighting the US’ contravention of international and domestic law.
Effects of the Application
The CBP One application imposes strict limits on the number of asylum seekers who can secure appointments, forcing many to endure months-long waits on the Mexican side of the border. This situation exposes them to grave dangers, including kidnappings, and instances of physical and sexual violence.[4] Additionally, the CBP One application presents numerous barriers for asylum seekers, such as the 23-hour window for individuals to respond to their appointments, limited language options, and technological and financial constraints, which curtail individuals’ ability to exercise their right to seek asylum.[5] In certain instances, asylum seekers lack access to a cell phone or service, preventing them from requesting appointments and significantly reducing their chances of safely and successfully seeking asylum in the US. Consequently, some individuals have been repatriated to their home countries without undergoing proper asylum assessment due to their inability to access the application.[6] Furthermore, organizations like Human Rights Watch have reported that the application’s reliance on facial recognition technology exacerbates adverse impacts on Black and Indigenous asylum seekers, raising concerns about racial bias and the risk of misidentification, further endangering these vulnerable populations.[7]
International and Domestic Frameworks
The right to asylum was established in the 1948 Universal Declaration of Human Rights. The surge of refugees in the post-WWII period prompted the creation of the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol, further solidifying international law regarding refugees and asylum seekers.[8] These legal obligations, which the US has ratified and played an important role in drafting, encompass several key components, including non-discrimination, the prohibition of improper penalties on individuals seeking refugee protection based on their manner of entry, and facilitation of refugees’ integration and naturalization.[9] Central to the Convention and its Protocol is the principle of non-refoulement, which prohibits Contracting States from returning refugees to their home country or another country where their life may be threatened.[10] Despite the US’s involvement in drafting the Convention and its subsequent ratification of the Protocol, its implementation of the CBP One application violates the non-refoulement principle, often compelling individuals to their home country or into Mexico, thereby exposing them to the risk of persecution.
Beyond international agreements, the US is governed by domestic law concerning refugees and asylum seekers. In 1980, the Refugee Act, signed by President Carter, established legislation guiding the admittance and resettlement of refugees within the country. The Act defined who constitutes a refugee, expanded refugee admissions, granted the president authority to admit refugees in emergencies, and established domestic legislation on non-refoulement.[11] Essentially, it aligned the US domestically with the Convention and its Protocol by defining a refugee as a person with a “well-founded fear of persecution.”[12]
The Biden administration’s dissuasive measures aimed at limiting the number of asylum seekers at ports-of-entry violate international and domestic refugee law. By compelling asylum seekers to remain on the Mexican side of the border while awaiting processing of their CBP One application, they are subjected to dangerous conditions. These risks disproportionately affect individuals whose identities intersect with more than one disenfranchised group, namely, 2SLGBTQ+, women, people of colour, children, Indigenous, and non-Spanish speaking asylum seekers.[13] Furthermore, the Biden administration’s CBP One application process violates the Convention Against Torture (CAT), a treaty ratified by the US. The CAT mandates that States must ensure no delays or deficiencies in the asylum process hinder asylum seekers from pursuing their claims. This includes dissuasive measures or policies that either refuse to process claims or needlessly prolong them. As most asylum seekers are only permitted to approach US ports of entry with a CBP One appointment (with exceptions outlined in the Final Rule), the US effectively engages in a form of refoulement by obstructing entry at the border and denying due process, thereby breaching its international obligations under the Refugee Convention and CAT.[14]
The Biden administration’s policies are hindering asylum seekers’ access to their right to asylum guaranteed under international law, perpetuating risks for vulnerable populations escaping perilous circumstances. Most notably, the administration recently introduced an executive order granting authority to halt processing asylum claims for irregular border crossings exceeding an average of 2,500 per day over a week.[15] The implementation of the CBP One application policy and Biden’s latest executive order underscores the administration’s efforts to restrict asylum seekers’ entry into the country. Furthermore, these measures are likely to result in increased instances of refoulement, infringing on both international and domestic law.
How we can help
1. Raise Awareness: Share accurate information regarding the challenges faced by asylum seekers at the US-Mexico border because of the Biden administration. By amplifying the voices of those affected and advocating for compassionate and humane migration policies, we can increase awareness and promote change.
2. Support Organizations: Donate to organizations that work directly with asylum seekers and migrants at the US-Mexico border, such as Asylum Seeker Advocacy Project and Human Rights First.
References
[1] The Guardian. (2024, February 7). Mexico border explained: charts on immigration [News article]. Retrieved from https://www.theguardian.com/us-news/2024/feb/07/mexico-border-explained-chart-immigration
[2] Amnesty International. (2024). CBP One – A Blessing or a Trap? Retrieved from https://www.amnesty.org/en/documents/amr51/7985/2024/en/
[3] Amnesty International. (2024). CBP One – A Blessing or a Trap? Retrieved from https://www.amnesty.org/en/documents/amr51/7985/2024/en/
[4] Human Rights First (2023). Lives At Risk: Barriers and Harms As Biden Asylum Ban Takes Effect. Retrieved from https://humanrightsfirst.org/wp-content/uploads/2023/05/Barriers-and-Harms-As-Biden-Asylum-Ban-Takes-Effect31.pdf
[5] Human Rights Watch (2023). “This Hell Was My Only Option:” Abuses Against Migrants and Asylum Seekers Pushed to Cross the Darién Gap. Retrieved from https://www.hrw.org/report/2023/11/09/hell-was-my-only-option/abuses-against-migrants-and-asylum-seekers-pushed-cross
[6] Houston Landing (2024). ‘Trying to win the lottery:’ CBP One app violates right to asylum, says human rights group. Retrieved from https://houstonlanding.org/trying-to-win-the-lottery-cbp-one-app-violates-right-to-asylum-says-human-rights-group/
[7] Human Rights First (2023). Lives At Risk: Barriers and Harms As Biden Asylum Ban Takes Effect. Retrieved from https://humanrightsfirst.org/wp-content/uploads/2023/05/Barriers-and-Harms-As-Biden-Asylum-Ban-Takes-Effect31.pdf
[8] American Civil Liberties Union. (n.d.). Five Things to Know About the Right to Seek Asylum [Web article]. Retrieved from https://www.aclu.org/news/immigrants-rights/five-things-to-know-about-the-right-to-seek-asylum
[9] Human Rights First (June 2023). Biden Administration Asylum Ban: Widely Opposed Missteps Violates Law and Fuels Wrongful Deportation of Refugees. Retrieved from https://humanrightsfirst.org/wp-content/uploads/2023/06/Asylum_Ban_Final_Rule_Factsheet_6.28.pdf
[10] UNHCR (2011). The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol. Retrieved from https://www.unhcr.org/sites/default/files/legacy-pdf/4ec262df9.pdf
[11] Council on Foreign Relations. (2024, March 6). How Does the U.S. Refugee System Work? [Report]. https://www.cfr.org/backgrounder/how-does-us-refugee-system-work-trump-biden-afghanistan
[12] National Archives Foundation. (n.d.). Refugee Act of 1980. Retrieved from https://www.archivesfoundation.org/documents/refugee-act-1980/
[13] Ibid.
[14] Amnesty International. (2024). CBP One – A Blessing or a Trap? Retrieved from https://www.amnesty.org/en/documents/amr51/7985/2024/en/
[15] Al Jazeera. (2024, June 5). How will Biden's new restrictions affect asylum seekers at US border? [News article]. Retrieved from https://www.aljazeera.com/news/2024/6/5/how-will-bidens-new-restrictions-affect-asylum-seekers-at-us-border