Skip to main content
Home

Main navigation

  • Centers & Programs
    • Centers
      • Center for Energy Studies
      • Center for Health and Biosciences
      • Center for the Middle East
      • Center for Public Finance
      • Center for the U.S. and Mexico
      • McNair Center
      Center for Energy Studies
      Providing new insights on the role of economics, policy and regulation in the performance and evolution of energy markets.
      More Details
      The globe at night, lights in populated areas illuminated
      Center for Health and Biosciences
      Advancing data-based policies that promote health and well-being in the U.S. and around the world.
      More Details
      Female healthcare worker lifts finger to press digital buttons featuring topical iconography
      Edward P. Djerejian Center for the Middle East
      Developing pragmatic policy approaches to the region’s enduring political, economic and societal concerns.
      More Details
      Topographic map of Middle East
      Center for Public Finance
      Delivering research and analysis on the effects of major U.S. fiscal policies.
      More Details
      Stack of coins with mathematical figure overlays
      Center for the U.S. and Mexico
      Strengthening the binational relationship by addressing major concerns on both sides of the border.
      More Details
      Textured flags of America and Mexico
      McNair Center for Entrepreneurship and Economic Growth
      Providing actionable policy analysis and recommendations that aim to expand the economy through private enterprise.
      More Details
      Professionals gather around a large table with laptops, printed documents and coffee cups for a business meeting
    • Programs
      • China Studies
      • Drug Policy
      • International Economics
      • Presidential Elections
      • Religion & Public Policy
      • Science & Technology Policy
      • Space Policy
      China Studies
      Analyzing the influence of the transnational circulation of people, technologies, commodities and ideas in China.
      Read More
      Person walks alongside large banner with Chinese characters
      Drug Policy
      Pursuing research and open debate to develop pragmatic drug policies based on common sense and driven by human rights interests.
      Read More
      Marijuana
      International Economics
      Studying timely issues in global economic policy as well as developmental policy in foreign countries.
      Read More
      International paper currencies stacked together, showing range of colors and styles
      Presidential Elections
      Offering nonpartisan analysis of elections to better understand the changing dynamics of presidential campaigns.
      Read More
      An assortment of campaign buttons from a variety of US elections and political pursuits are displayed in a collage
      Religion and Public Policy
      Exploring how religion and cultural factors interact with public policy issues.
      Read More
      A worn path stretches between rows of olive trees
      Science and Technology Policy
      Addressing a broad range of policy issues that affect scientists and their research.
      Read More
      A scientist picks up test tubes from a rack.
      Space Policy
      Focusing on U.S. space policy and the future of space travel.
      Read More
      The International Space Station (ISS) orbits the Earth at sunrise
  • Events
    The front of Baker Hall, from across the plaza, with fountain in foreground
    Center for Health and Biosciences | Roundtable
    Tue, Feb. 07, 2023 | 4:30 pm - 5:30 pm
    Baker Briefing: Addressing the Maternal Mortality Crisis in Texas See Details
    Child at border plays in the dirt with superhero toy
    Center for the U.S. and Mexico
    Thu, Feb. 23, 2023 | 5 pm - 7:30 pm
    Immigration Reform and the Impact on Children: A Town Hall Discussion See Details
    Tile mosaic over an entrance to Baker Hall that reads "A Bridge Between the World of Ideas and the World of Action"
    Center for the U.S. and Mexico | Edward P. Djerejian Center for the Middle East
    Wed, Mar. 15, 2023 | 5:30 pm - 7:30 pm
    Charting Paths Forward on Immigration Reform See Details
  • Experts
    • Biomedical Research
    • Child Health
    • China
    • Conflict Resolution in the Middle East
    • Domestic Health Policy
    • Drug Policy
    • Energy
    • Entrepreneurship and Economic Growth
    • Global Health
    • Health and Biosciences
    • Human Rights and Refugees
    • International Economics
    • Islam and Politics
    • Latin American Energy
    • Middle East
    • Political Economy of the Arab Gulf
    • Presidential Elections
    • Public Finance
    • Religion and Public Policy
    • Science and Technology
    • Space Policy
    • Texas Politics
    • U.S. and Iran
    • U.S. and Mexico
    • See All Experts
    • Experts in the News
  • Support
    • Join the Baker Roundtable
      Join the Baker Roundtable
      Learn more about the Baker Institute’s membership forum, which supports the mission of the institute and offers members exclusive access to experts and events.
      Read More
      RT
    • Major Gifts
      Major Gifts
      Major gifts provide the funds necessary for the Baker Institute to explore new areas of study and research, and expand current programs.
      Read More
      Wallace S. Wilson meeting with former British Prime Minister Tony Blair
    • Endowments
      Endowments
      Endowment gifts provide the Baker Institute with permanent resources that support research programs, fellows and scholars.
      Read More
      Pictured from left are William Martin, Katharine Neill Harris, Ambassador Edward Djerejian, Alfred C. Glassell, III, and Pam Lindberg
    • Planned Giving
      Planned Giving

      Plan a gift that will ensure lasting, meaningful support for policy programs important to you.

       

      Read More
      meeting
    • Corporate Support
      Corporate Support
      Corporations can become involved with the institute in a number of ways and see the benefit from the research conducted by our fellows and scholars.
      Read More
      Wide shot of the Doré Commons during a Shell Distinguished Lecture Series event featuring Wim Thomas
  • About
    • People
      People
      Learn more about the Baker Institute's leadership and get contact information for the administrative staff.
      Read More
      Secretary James A. Baker, III, stands with a portion of the Berlin Wall, outside of Baker Hall
    • Student Opportunities
      Student Opportunities
      Through the internships on campus and beyond, Rice students can explore careers in public policy, or simply become better informed about important issues of the day.
      Read More
      Amb. Edward P. Djerejian speaks with students outside Baker Hall
    • Annual Report
    • Blog
    • Contact
      Contact Us
      Complete a form for event, media or other inquiries, and get directions and parking information for the Baker Institute.
      Read More
      The front of Baker Hall, from across the plaza, with fountain in foreground
  • Contact
  • Research
    • Economics & Finance
      Economics & Finance
      Read More
    • Energy
      Latest Energy Research
      Summary on Latest Energy Research
      Read More
    • Foreign Policy
      Foreign Policy
      Read More
    • Domestic Policy
      Domestic Policy
      Read More
    • Health & Science
      Health & Science
      Read More
    • All Publications
  • Facebook
  • Youtube
  • Twitter
  • Linkedin
  • Economics & Finance
  • Energy
  • Foreign Policy
  • Domestic Policy
  • Health & Science
  • All Publications
Women’s Rights, Human Rights and Refugees | Policy Brief

How Biden’s New Border Policy Hurts Asylum Seekers

January 9, 2023 | Kelsey Norman
Asylum documents

Table of Contents

Author(s)

Head shot of Middle East fellow Kelsey Norman
Kelsey Norman
Fellow for the Middle East | Director, Women's Rights, Human Rights and Refugees Program
Read More

Share this Publication

  • Facebook
  • Twitter
  • Email
  • Linkedin
  • Print This Publication
  • Cite This Publication

    Norman, Kelsey P. 2023. How Biden’s New Border Policy Hurts Asylum Seekers. Policy brief no. 01.09.23. Rice University's Baker Institute for Public Policy, Houston, Texas. https://doi.org/10.25613/S2M6-E140.

    Copy Citation

Tags

immigrationasylumBidenUS Mexico border

Introduction

The Joe Biden administration announced sweeping changes to migration policy at the U.S. southern border with Mexico on January 5, 2023.[1] Three nationalities of arriving asylum seekers — Nicaraguans, Cubans and Haitians — will be eligible for a small-scale program through which they can apply to enter the United States under humanitarian parole, so long as they have a sponsor residing in the U.S. and meet other requirements. This is in addition to Venezuelan nationals who became eligible for the program in October.

However, a worrying aspect of the policy change involves adding these same nationalities to those that can be expelled to Mexico under the Title 42 ban, meaning that individuals arriving at the southern border will be unable to seek asylum in the United States. The administration also proposed instating a “transit ban,” similar to the safe third country agreements that were attempted under former President Donald Trump, whereby individuals are required to seek asylum in the first country they pass through and can be returned to that country if they attempt to instead seek asylum in the United States. This brief explains the proposed changes in detail and recommends a better way to help asylum seekers, taking stock of Biden’s overall approach to asylum two years into his presidency.

Biden’s Use of Title 42

The Trump administration took unprecedented actions to limit the number of asylum seekers, refugees, and regular and irregular migrants allowed to come to or remain in the United States. President Biden campaigned on a very different approach to migration and asylum than his predecessor, and during his first few weeks in office, he released a slew of executive orders that aimed to make substantive changes to this policy area. Technically, the administration has fought in court to remove the Title 42 ban, which prevents people from seeking asylum and forces them to remain in Mexico without access to a well-functioning asylum system and important protections. Yet simultaneously, the Biden administration has been adding to the list of nationalities that can be expelled to Mexico under Title 42.

In October 2022, when the number of arriving Venezuelans spiked, the administration convinced the Mexican government to accept Venezuelan nationals expelled from the U.S. under Title 42, while simultaneously allowing a small number of Venezuelans still outside the United States to apply for humanitarian parole. The administration’s latest move to include Nicaraguans, Cubans and Haitians in this program represents a further attempt to prevent nationalities in need of protection from arriving and successfully claiming asylum at the southern U.S. border. To apply for humanitarian parole, Venezuelan, Nicaraguan, Cuban or Haitian individuals need to have an existing connection in the U.S. who can serve as a sponsor, and must have the wherewithal to wade through the necessary bureaucratic process and use an app. Additionally, they must be able to afford a plane ticket, pass a background check and meet other administrative requirements. There is also a cap of 30,000 individuals from those four nationalities who can be accepted into the program each month.

Seeking asylum is a right protected by domestic and international law and should not be contingent upon existing connections in the U.S. or financial assets. Furthermore, forcing those seeking asylum to wait in Mexico under Title 42 places individuals in highly unsafe conditions where they are easily preyed on by traffickers and may end up being kidnapped or subject to extortion. Many are forced to look for alternative and irregular ways to cross the border — usually by paying a smuggler — because there is currently no legal way to seek asylum in the U.S. for most families and adults. The expulsion of individuals under Title 42 over the last three years is partly responsible for the higher-than-usual numbers of what Customs and Border Patrol refers to as “encounters” with people trying to reach U.S. soil — especially since many individuals make repeated attempts to cross the border.[2]

The Proposed ‘Transit Ban’

Safe third country agreements are a way to legally return asylum seekers to the territory of another country that the individual previously passed through. The U.S. has a safe third country agreement in place with Canada, whereby asylum seekers who arrive in Canada after having traveled through the U.S. can be sent back to the U.S. to have their claims assessed there, and vice versa. Countries of the European Union have been using safe third country agreements since the 1990s, when Germany first instigated their use. And the 2016 EU-Turkey “deal” also had a safe third country mechanism embedded within it, meaning that Syrian nationals could be returned to Turkey as part of the agreement.

The Trump administration used this model to enact safe third country agreements with Guatemala, Honduras and El Salvador in 2019. Since safe third country agreements are not treaties, they can be signed unilaterally and do not require congressional approval. The agreements were rightly cancelled by executive order during the initial days of the Biden administration since Guatemala, Honduras and El Salvador all lack well-functioning asylum systems, and individuals returned to these countries are often subject to generalized violence. However, the Biden administration appears to be changing course, announcing its plans to develop a “transit ban” that would similarly allow the U.S. to return an asylum seeker to any country that they passed through on their way to the U.S., forcing them to instead seek asylum there.

Rather than a safe third country agreement with Mexico, the Trump administration instigated the Migration Protection Protocols (MPP, informally the “Remain in Mexico” program), which required asylum seekers from Central American countries to remain in Mexico while awaiting court hearings in the United States. Like the safe third country agreements with Guatemala, Honduras and El Salvador, President Biden formally ended the MPP program shortly after his inauguration, though the program subsequently went through legal battles after Texas and Missouri sued to keep it in place, with the Supreme Court ultimately ruling in the administration’s favor.[3] President Biden met with Mexican President Andrés Manuel López Obrador on January 9 at the North American Leaders’ Summit, with immigration as one of the central topics on the agenda. It is unclear how the Biden administration will seek Mexico’s cooperation on establishing a transit ban, and whether an option to revamp and extend the MPP program is on the table. 

A Better Approach

While expanding pathways to protection for specific nationalities of arriving asylum seekers is a positive step, only a small proportion of potential asylum seekers will be able to meet the onerous requirements of advanced humanitarian parole. Asylum seekers with fewer resources who arrive at the U.S. border should still have the right to apply for protection under U.S. and international law, and should not be returned to northern Mexican border cities where their safety cannot be guaranteed. The administration campaigned on a promise of ending the use of the Title 42 ban to expel asylum seekers and has been fighting the ban in court; it should not be expanding the use of Title 42 to further infringe on the rights of asylum seekers to legally access safety.

The administration has faced a pattern of needing to reallocate and rush resources to the border whenever the number of arriving asylum seekers increases, which we know is likely to occur every winter and early spring because of more temperate weather — and which will certainly occur when Title 42 is eventually overturned in court. The administration needs to develop a more robust and consistent manner of receiving asylum seekers and conducting initial vulnerability assessments, not just for minors, but also for adults and families, regardless of nationality. One of the ways to prevent a strain on Department of Homeland Security resources and facilities is to expand the opportunities for arriving asylum seekers to stay with family members or in hostels while awaiting their asylum hearings, since either of these options is much cheaper than immigration detention.[4] While some conservative politicians object to this due to concerns over individuals not appearing in court, a 2021 American Immigration Council report examining 10 years of data concluded that over 80% percent of asylum seekers do show up for their hearings, and this number is over 90% percent when asylum seekers have access to a lawyer.[5]

At present, the administration is attempting to appease not only conservative politicians and voters, who claim that the situation at the border is a crisis, but also liberal immigration advocates, who would like to see additional pathways for asylum seekers to enter the United States. In reality, the administration has not won favor from either camp. The administration should return to its initial approach to asylum, emphasizing that asylum is a normal and manageable process, and that refugees arriving at our southern border can be vetted and should be able to remain in the United States if their claims are found to be valid. Ultimately, in the second half of its term, the Biden administration needs more political courage on the issue of asylum.

Endnotes


[1] Department of Homeland Security, “DHS Continues to Prepare for the End of Title 42; Announces New Border Enforcement Measures and Additional Safe and Orderly Processes,” January 5, 2023, https://www.dhs.gov/news/2023/01/05/dhs-continues-prepare-end-title-42-announces-new-border-enforcement-measures-and. 

[2] John Gramlich, “Key Facts About Title 42, the Pandemic Policy that has Reshaped Immigration Enforcement at the U.S.-Mexico Border,” Pew Research Center, April 27, 2022. https://www.pewresearch.org/fact-tank/2022/04/27/key-facts-about-title-42-the-pandemic-policy-that-has-reshaped-immigration-enforcement-at-u-s-mexico-border/. 

[3] American Immigration Lawyers Association, “Featured Issue: Migrant Protection Protocols,” American Immigration Lawyers Association, October 7, 2022, https://www.aila.org/advo-media/issues/port-courts. 

[4] Laurence Benenson, “The Math of Immigration Detention, 2018 Update: Costs Continue to Multiple,”  National Immigration Forum, May 9, 2018, https://immigrationforum.org/article/math-immigration-detention-2018-update-costs-continue-mulitply/. 

[5] American Immigration Council, “11 Years of Government Data Reveal That Immigrants Do Show Up In Court,” January 28, 2021, https://www.americanimmigrationcouncil.org/news/11-years-government-data-reveal-immigrants-do-show-court. 

 

This material may be quoted or reproduced without prior permission, provided appropriate credit is given to the author and Rice University’s Baker Institute for Public Policy. The views expressed herein are those of the individual author(s), and do not necessarily represent the views of Rice University’s Baker Institute for Public Policy.

©2023 Rice University’s Baker Institute for Public Policy
https://doi.org/10.25613/S2M6-E140
  • Print This Publication
  • Share
    • Facebook
    • Twitter
    • Email
    • Linkedin

Related Research

iran flags
Edward P. Djerejian Center for the Middle East | Women’s Rights, Human Rights and Refugees | Issue Brief

Iran’s Protests 40 Days On

Read More
Europe Map
Edward P. Djerejian Center for the Middle East | Women’s Rights, Human Rights and Refugees | Journal

The European Union's Migration Management Aid: Developing Democracies or Supporting Authoritarianism?

Read More
Pakistan Flooding
Edward P. Djerejian Center for the Middle East | Center for the U.S. and Mexico | Women’s Rights, Human Rights and Refugees | Report

How Can We Protect “Climate Refugees”?

Read More
  • Facebook
  • Youtube
  • Twitter
  • Linkedin
  • Donate Now
  • Media Inquiries
  • Membership
  • About the Institute
  • Rice.edu
Contact Us

6100 Main Street
Baker Hall MS-40, Suite 120
Houston, TX 77005

Email: bipp@rice.edu
Phone: 713-348-4683
Fax: 713-348-5993

Baker Institute Newsletter

The email newsletter of Rice University's Baker Institute for Public Policy provides a snapshot of institute news, research and upcoming events.

Sign Up

  • © Rice University's Baker Institute for Public Policy
  • Web Accessibility
  • Privacy Policy