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What is happening at the U.S. southern border?

Under pressure to address a surge of migrants at the US-Mexico border, Joe Biden announced a far-reaching crackdown on migrants seeking asylum last week, expanding the use of a controversial public health measure known as Title 42 to restrict people from Cuba, Nicaragua, Haiti and Venezuela from illegally entering the US, while offering those legally seeking relief a new pathway to America.

Before the president’s first trip to the US-Mexico border since he took office in 2020, immigration advocates condemned the Biden administration’s decision to expand Title 42 as disheartening and a failure to uphold his campaign promises. They took some solace in the creation of a legal pathway to asylum for those in four countries, but still, for them, Biden’s actions were not enough – they leave out other migrants, and the parole program is beset by requirements that impose significant barriers to migrants without access to resources, perpetuating inequities within the US immigration system.

In other words, immigration advocates say, the cost of expanded expulsion of migrants under the guise of public health without a clear path to asylum outweighs the promise of expanded refugee access and a legal outlet for asylum. “For a lot of us working in immigration justice, at the start of the administration, there was incredible hope that Title 42 would end and push forward to re-establish access to asylum,” the director of the American Immigration Council’s Immigration Justice Campaign, Alex Miller, said. “We’ve been disappointed.”

The Biden administration’s so-called “carrot and stick” approach aims to deter the historic-high millions of migrants fleeing persecution from their home countries and seeking US asylum from entering the country illegally. Federal figures from the 2022 fiscal year show that US border agents stopped migrants more than 2m times along the southern border, setting an all-time record. They turned migrants away under the Title 42 provision more than 1m times.

“The problem is the carrot is not universally accessible,” Miller added. “Legal access to asylum will be limited to those who are the right nationalities, have the right means and support, to apply for parole … The sticks they are offering are restricting access, and that’s not a fair trade.”

Under the Biden administration’s new policy, if migrants from those countries pass background checks, buy a plane ticket, obtain financial sponsorship, and meet other requirements, they would be allowed to legally enter under the “parole program”. They would be authorized to live and work in the US for two years.

But immigration advocates worry about the Department of Homeland Security’s proposed rule – which they say is similar to the Donald Trump White House’s “transit ban” – because it would make migrants seeking asylum ineligible if they failed to seek protection in a third country before reaching the US and if they “circumvent available, established pathways to lawful migration,” as homeland security secretary Alejandro Mayorkas said last week.

They also worried that the parole program’s requirements – modeled after the administration’s approach to refugees fleeing Afghanistan, Venezuela, and Ukraine – impose barriers to migrants who lack the resources to buy flights and find a financial sponsor.

On Twitter, United We Dream, an immigrant youth-led rights group, slammed Biden’s new policy “a racist and classist attack” on migrants. United We Dream’s deputy director of federal advocacy, Juliana Macedo do Nascimento, said in a statement that the Biden administration’s expansion of Title 42 would hurt “the same people seeking asylum that they purport to protect”.

Biden with Tony Blinken and Deb Haaland, announcing new migrant rules.
Biden with Tony Blinken and Deb Haaland, announcing new migrant rules. Photograph: REX/Shutterstock

The American Civil Liberties Union’s director of border strategies, Jonathan Blazer, said in a statement that the Biden administration’s “knee-jerk expansion of Title 42 will put more lives in grave danger”, adding that his plan “ties his administration to the poisonous anti-immigrant policies of the Trump era instead of restoring fair access to asylum protections”.

“His commitments to people seeking safety will ring utterly hollow if he moves forward in substituting one illegal anti-asylum Trump policy for another,” Blazer said.

Miller told the Guardian that the administration’s new proposals include allowing asylum seekers to use an app in English and Spanish to schedule appointments. That, the administration argues, will reduce “wait times and crowds at the US port of entry and allow for safe, orderly, and humane processing”. Miller said that effort makes the legal asylum seeking process harder for migrants who lack technological access and speak indigenous dialects beyond Spanish as well as for those who cannot obtain legal representation to help them navigate the process.

Biden has said that Congress needs to enact a more comprehensive immigration reform. In the interim, the administration’s new parole process, which he described as “safe, orderly” and humane, would “make things better but will not fix the border problem completely”.

The National Immigration Law Center’s vice-president of law and policy, Lisa Graybill, told the Guardian that while the administration’s creation of the asylum that gives 30,000 people access is better than nothing, its overall approach reflects seeing immigration enforcement and creating outlets for asylum as a “zero-sum game”. It’s a mistake presidents and politicians have made before, she said.

She added that Biden had been “following an old playbook that does not work” by allocating resources toward enforcement rather than creating a “humane and orderly processing system that is built around recognizing the right to asylum instead of violating it”. Instead, the parole program as designed, she said, will hurt impoverished migrants and those who fled their countries in haste without meeting all requirements, acting as barriers to even those who have legitimate asylum claims while helping middle and higher income migrants with access to resources.

The chief adviser for policy and partnerships at the American Immigration Lawyers Association, Angela Kelley, said that Biden’s creation of the parole program was “smart” and reflected an attempt to use the “tools in his toolbox and use them in more creative ways”. She pointed out that the Biden administration aimed to triple the number of refugees resettled seeking asylum from Latin American and Caribbean countries. Yet, she added, the outdated US immigration laws have not kept up with who qualifies for asylum, such as those fleeing the damaging effects of climate change.

“That’s the difference maker: under Trump, it was all about kicking out people – they were systematic in dismantling the refugee program, legal immigration channels of people coming for employment for families, for students. That’s not the approach of the Biden administration,” Kelley said, noting that it will take time to see the effects Biden’s actions will take on the migration system. “They’re restoring all of that. The unfortunate continued reliance on Title 42 is a monkey on their back that they have to figure out how to shake and use the resources you have … to try [to] manage the migration of people the best you can.”

Title 42’s future is uncertain as the US supreme court in December stopped Biden’s administration from ending the program to give the justices more time to weigh in on whether states have the legal grounds to intervene in an ongoing case over the program.

Kelley, who had previously done immigration work for Biden and the Barack Obama White House, saw the expansion of its Title 42 program as “worrisome” for vulnerable migrants who would be sent back to dangerous conditions in Mexico. She noted that by creating legal pathways to asylum, the administration is trying to “to ease the pressures” at the US border in the hope that they wouldn’t need the pandemic program any longer.

“What is heartbreaking is that in an effort to limit the number of people who are coming, you are turning away asylum seekers, who are the migrants you want to protect,” Kelley said.

Immigration advocates and Biden agree that long-term changes needed to come from Congress – a questionable prospect given that the Republican-controlled House struggled to elect its speaker, and past bipartisan efforts at immigration reform had also failed.

Even so, some advocates say now it’s a question of where resources are sent: They called for more resources to be directed toward assisting nonprofits and NGO groups working with asylum seekers at the border, hiring more asylum officers and more immigration judges, and investing in more legal assistance for migrants unable to afford private attorneys.

“For three years under Title 42, access to asylum has been undermined,” Miller said. “All of the documented evidence of kidnapping, rape, and extortion of migrants in Mexico, in particular at the border – it’s incredibly troubling that we’re expanding the expulsions of migrants to Mexico.

“These are not just numbers, these are people with individual stories with their own lives they’re trying to defend. It’s really easy to get lost in the big picture. We’re talking about people here.”

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