Last week, I traveled to the U.S.-Mexico border to witness the end of Title 42, the public health law that then-President Donald Trump used as a pretense to fulfill his goal of keeping people seeking asylum from pursuing their legal right to apply for protection in the United States.
Because of Title 42, people fleeing persecution due to their race, religion, political opinion or affiliation with a particular social group, were sent back to Mexico or to the home country they left even if their lives were in danger. Some were killed upon return. Title 42 also forced many seeking protection to wait in Mexico, the country where I was born, in precarious and unsafe conditions. There, many of them were targeted due to their vulnerability, suffering violence, kidnapping and extortion, as have some of my family members living in Mexico.
When he ran for president, Joe Biden vowed to restore the right to seek asylum. He has done the opposite. True, his administration’s initial attempt to end Title 42 was stopped by a lawsuit. But since then, it seems the administration has capitulated to anti-immigrant forces by announcing the implementation of policies that copy from the Trump playbook and that have the same effect as Title 42, policies that bar most people seeking asylum at the southern border from availing themselves of the process.
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Biden had a promise to keep. Instead, he followed Trump’s lead.
When the COVID-19 public health emergency ended last week, Biden had the opportunity to fulfill his promise, abide by international and U.S. law, and allow all those seeking asylum a fair chance to apply for it. Instead, the Biden administration implemented its own asylum ban, which dusted off policies that the Trump administration had sought to put in place, but that the courts had blocked.
Biden’s asylum ban bars most people from seeking asylum if they traveled through other countries along their way to the U.S.-Mexico border, unless they applied for and waited for a final determination in another country. But how is a Honduran citizen, like my husband, supposed to safely apply for asylum in Guatemala or Mexico, countries with barely functioning asylum systems and that are themselves seeing their own citizens travel north in search of protection?
Biden’s ban makes an exception for those who arrive through a port of entry after having received a scarce appointment through a smart phone application, CBPOne. On my visit to the border, where I traveled at the invitation of the Haitian Bridge Alliance as a representative of the American Civil Liberties Union, I witnessed firsthand how this phone app increases the inequities built into the immigration system, which leave the most vulnerable without protection.
To access CBPOne, you need a smart phone and cellular data. Is it reasonable to expect everyone who flees their country in fear of their life to have money to be in possession of a smartphone and cellular data? It certainly wasn’t a fair assumption to make of one mother I met at an encampment in Matamoros, next to the bridge along the Rio Grande.
When I asked if she had attempted to get a CBPOne appointment, she explained that her phone had been stolen on the way north, a common occurrence on the more than 1,500-mile journey, and that she had not had money to buy another one.
Those who are lucky enough to get their hands on a cell phone and get cellular data or free wifi, must then be literate, technologically savvy and be able to understand how to address the error messages that they receive in English on the app.
In a shelter in Reynosa with a clear Wifi signal that guests can use, I saw many people trying to secure CBPOne appointments and getting errors requiring them to update the app, saying that there had been a “system error,” or saying that the “request timed out” because “[t]he server took too long to respond,” which “could be due to a poor network connection.”
Those who had submitted the application in Haitian Creole or Spanish received the errors in English and did not know what to do. People were confused and frustrated. One of them asked me, “Why does the richest country on Earth make things so difficult for us?”
She had 24 hours to secure appointment. But government’s phone app didn’t work
Many people have been trying to secure an appointment on CBPOne every day since January. I was able to find one lucky applicant who was notified via email that she had received an appointment. She was instructed to go back to the application to verify and get the details for her appointment. But when she went to the app, there was no information on how to do so. If she didn’t figure it out in the next 23 hours, her appointment would be lost, and she would have to go through the lottery-like system all over again.
It is past time that we move away from creating systems whose purpose it is to discourage those running for their lives from availing themselves of the asylum process.
The Biden administration now touts “deterrence” as one of its key strategies, but how can it be a good thing to deter people from exercising a human right protected under international and U.S. law?
Plus, deterrence does not work. Imagine being a mother in Honduras receiving threats from the gangs against you and your family. You know that calling the police is useless, as some elements of law enforcement collaborate with the gangs and the institution has shown that it cannot offer the necessary protection. You know that staying home is a death sentence. You have seen it with your own eyes. You have heard the gunshots in your neighborhood. You have had family members disappear only to be found dead. A mother running for her life and her children’s lives will not be deterred. She will do anything to protect them. As one mother at the border told me, “We decided that we would rather risk our lives and go north than stay in our country and be killed.”
Instead of creating systems that bar people fleeing for their lives from presenting their case at the U.S.-Mexico border, we should welcome people seeking asylum with a just and orderly process. Instead of sending troops to the border, we should create welcoming centers, where those seeking protection can express their fear, be processed, be released into community networks, and be given adequate time and the opportunity to present their case with a lawyer in court, regardless of how they traveled to or entered the United States.
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The administration claims that its asylum ban, which contains a few narrow categories of exemptions, has been created to avoid chaos at the border and to ensure that people follow legal pathways. However, the administration’s policies themselves have created the conditions that it now seeks to solve.
Relying on a faulty phone application to decide who gets a chance to present their case and who has to stay in Mexico in precarious and dangerous conditions for extended periods of time, hoping for a chance to win an appointment that never comes, increases people’s desperation and weakens trust in the system. Not having enough appointments to meet the demand creates backlogs and bottlenecks at the border. Having legal pathways that require somebody running for their life to stay put and wait in the country where their life is at risk makes a mockery of the asylum system and devalues human life.
The right to apply for asylum should not be reserved for the selected few. Instead of becoming more Trumpian with each new immigration policy, President Biden should take the opportunity to show the world that migration, which can save lives and allow people to start new ones, can be managed fairly and humanely.
Maribel Hernández Rivera is deputy national political director for the American Civil Liberties Union. She is also a PD Soros fellow and a Public Voices fellow of The OpEd Project.