The Biden administration recently resuscitated a Donald Trump-era ban on asylum for most refugees at the southern border, citing fears of increased border crossings. Federal courts had found a version of the same ban violated U.S. and international law. But the Biden administration clung to deterrence policy as a child to a piece of candy – giving false comfort without any evidence of effectiveness.
In speaking with migrants in Mexico this summer, I’ve learned that carrots work much better than sticks. Harsh deterrence policies are not only ineffective, they are unnecessary when safe options for seeking asylum exist.
The asylum ban penalizes asylum seekers who fail to use the new CBP One phone application, which allows people to schedule an appointment at southern border ports of entry to ask for protection. And for all its problems – which are many, and worthy of concern and immediate attention – asylum seekers are motivated to use the app, if they can.
With an appointment, migrants can approach U.S. ports of entry with confidence that they will be seen and heard. There is no need for penalization and unnecessary cruelty against asylum seekers who do not succeed in securing an appointment. With CBP One and other humanitarian initiatives, the United States can meet its obligations to asylum seekers.
Across administrations, the U.S. government has used deterrence policies to respond to increased numbers of asylum seekers at the southern border. Such policies have separated families, threatened lives, strengthened criminal organizations, and cost billions of dollars. A different vision would allow for greater investment in border communities and programs that spur integration of refugees, largely to economic benefit.
I have spoken with dozens of migrants traveling through Mexico with the intention of seeking protection in the United States. All said the same thing – that CBP One is known to all, and everyone is using it or attempting to use it. Since none of the migrants I spoke with even knew about the asylum ban, the policy was not influencing their behavior. And even after I explained the new rule, asylum seekers still listed violence and extortion in Mexico as the key factor that discouraged them in their journey toward the United States, not stricter border policies.
Facing renewed legal challenge to the asylum ban, the Department of Homeland Security (DHS) has said that “the rule is working as intended” as a deterrent. It has also suggested that if ended, a parade of bad things would ensue: mainly high levels of unlawful migration that would stress government agencies and overwhelm shelter capacity throughout the United States. Yet the government has failed to provide any data to support its contentions.
What the new ban has done, however, is arbitrarily deny protection to individuals in desperate need of safety and with the right to seek asylum under the law.
Before the ban, U.S. asylum authorities found that 83% of individuals presenting asylum claims had a likelihood of winning protection and could continue with their claims in court. With the ban in place, asylum officials have permitted only 46% of individuals to continue forward with their claims. The political repression in Venezuela, Nicaragua and Afghanistan certainly did not diminish overnight. The United States simply decided to turn its back on asylum seekers.
If the administration’s objective is really a manageable border policy honoring its legal obligations toward asylum seekers, it should rescind the asylum ban immediately. It should significantly increase the number of CBP One appointments available each day and provide more robust and sustainable funding to organizations and local governments around the nation offering support and welcome to migrants.
The government can expand its existing parole programs and broaden eligibility to other nationalities. Now is the time to abandon deterrence policies toward protection seekers.
Elissa Steglich is a clinical professor and co-director of the Immigration Clinic in the School of Law at The University of Texas at Austin.
A version of this op-ed appeared in the Dallas Morning News.
