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Biden Must Reverse Plans to Revive Deadly Trump-era Asylum Bans

President Biden campaigned on a promise to restore our asylum laws, which allow people who can prove they are fleeing persecution because of their race, religion, political beliefs, nationality, or social group to secure permanent protection in the U.S. He specifically pledged to end a harmful Trump-era policy known as the “transit ban” that unfairly barred asylum for vulnerable migrants fleeing danger who did not apply for asylum in another country before reaching the U.S. southern border. But Biden recently announced plans to revive key features of that policy, along with aspects of another Trump ban that illegally blocked asylum for people who entered the country without going through an official border crossing.

These policies are harmful and illegal. The administration must immediately change course and make good on its pledge to ensure the most vulnerable have access to refuge.

The right to seek asylum, guaranteed in U.S. law, stems from international agreements following the atrocities of World War II. It reflects our nation’s commitment to protect people in need of refuge, and to prevent the forced return of vulnerable people into harm’s way. Congress designed our asylum laws to ensure that everyone escaping persecution has a chance to seek safe harbor here, regardless of how they must flee danger or enter the country.

The administration must recognize how bad it looks to bring back an anti-immigrant Trump policy from Stephen Miller’s playbook, especially one that multiple courts found to be unlawful. Despite the administration’s efforts to distinguish its proposal from Trump’s, they share a common core, which is to punish people for not requesting asylum in the countries they must travel through to reach the U.S., like Mexico and Guatemala. This ignores the obvious reason why so many do not seek asylum there: These countries do not offer real sanctuary for migrants fleeing persecution.

The administration’s own records, alongside NGO reports, make it painfully clear that these countries have not developed working asylum systems and that, for many migrants, it would be pointless and life-threatening to stay and apply. Critically, our courts have long recognized that a person’s decision not to seek asylum while in transit to the U.S. has no bearing on their need for protection.

This means that, like Trump’s rule, Biden’s proposal would send people facing persecution back to danger and bar asylum even to those people with the strongest claims. This includes people like a Cameroonian refugee who was barred from asylum under Trump’s transit ban, despite being brutally tortured by his country’s military for being an independence activist.

Biden has claimed that his proposal is different because the administration has separately created programs that allow people from four countries to apply in advance for temporary permission to come to the U.S. However, they only apply to a small number of nationalities and have limited capacity. They also require that applicants have a U.S. financial sponsor, a passport, resources to pay for a costly plane ticket, and the ability to wait for the application’s approval — the very things that the most vulnerable asylum seekers lack.

The core concept of asylum is that a person has an urgent need for protection — often from their own government. Although the new programs will benefit those who qualify, they are not a realistic option for many people who cannot ask their persecutor for travel permission or who are unable to wait in dangerous conditions while applying for approval, let alone those who lack financial sponsors and resources of their own.

The administration has also suggested that the potentially deadly impact of the proposed ban will be mitigated because migrants may be able to access asylum if they make a border appointment through an application on their phone. But this policy echoes Trump’s first asylum ban, found unlawful by the courts, that also barred people who entered the U.S. without going through an official border crossing. This approach disregards a key reality asylum seekers face in pursuit of safety.

The most vulnerable asylum seekers, who are frequently poor and who may speak neither English nor Spanish, are often those least likely to have the resources or capability to use a complicated smartphone app in a foreign language or wait weeks or months in danger for an appointment. This is precisely why our laws prioritize protection and allow individuals to be considered for asylum regardless of how they enter or arrive in the country.

Biden’s proposed tweaks to Trump’s asylum bans are mere window dressing, designed to try to hide the needless suffering the plan will inflict on desperate people who must make the journey to safety however they can. It would leave many of the most vulnerable asylum seekers in the same position as Trump’s bans did — unfairly denied critical, permanent protection for reasons that have nothing to do with their need for refuge.