President Biden recently announced changes to US immigration rules that will effectively embed two Trump-era policies, one of which the Supreme Court’s conservative majority has temporarily refused to halt: Title 42. It is a measure ostensibly intended to curtail the spread of COVID-19 by expelling or refusing entry to migrants from Central America. The other is the so-called “safe third country” policy, which requires migrants to apply for asylum in a country through which they transit on their way to the southern border. They must show that the request was denied before attempting to make an asylum claim in the United States.
Employing these measures displays the hypocrisy of both major political parties when it comes to asylum seekers and refugees. Also, defending these indefensible rules is often done with the aid of lies and misinformation.
On the campaign trail, Biden promised to end Title 42, and last spring the White House and the Centers for Disease Control determined that it was no longer necessary. Attorneys general from 19 Republican-dominated states objected to lifting it, and the Supreme Court agreed.
President Biden recently announced that his administration would expand Title 42 to include people from Cuba, Haiti, and Nicaragua. They face expedited removal if they do not first “legally” apply for asylum in another country despite the fact that the administration announced the formal end of the safe third country rule last year. To call El Salvador, Honduras, Guatemala and border settlements in Mexico “safe” is an absurd linguistic contortion. To refuse people asylum at the border after fleeing danger, only to send them to other highly threatening places, is cruel. It is worth noting that the Office of Refugee Resettlement estimates that nearly 45 percent of asylees and refugees living in the United States have experienced torture. There is no reason to believe that those who are currently encamped at the southern border have had pleasanter lives.
The silver lining in the cloud is that the government will allow up to 30,000 people each month to live and work in the United States for two years if they have an in-country sponsor, can afford the airfare, and pass vetting. The process is called humanitarian parole authority, the same provision afforded to Ukrainian refugees.
Prior to Biden’s announcement, the Supreme Court’s stay on rescinding Title 42 was a cause for celebration among anti-immigration advocates. One of the most vocal proponents for keeping Title 42 is Arizona’s recently-former attorney general Mark Brnovich. He and his colleagues greeted the court’s decision with much enthusiasm. Brnovich announced on his Twitter account that Title 42 can “stop an even greater flood of illegal immigration.” The notion of an inundation that will drown the culture in foreign influence, the government in debt, and the taxpayer in crime (or disease) is a common refrain.
In a recent NPR interview, Brnovich was aghast that the Biden White House is “literally letting people make asylum claims.” On Twitter, he opined that at least Title 42 would “make sure we enforce our immigration laws.” The claim that law enforcement is non-existent and that it creates “open borders” are talking points that do not bear the slightest scrutiny. Requesting asylum or refugee status is perfectly legal. In fact, the Immigration and Nationality Act, which is an integral part of US immigration law, has this to say on the matter:
“Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival … irrespective of such alien’s status, may apply for asylum…”
The Trump administration added an exception to this law, the aforementioned “safe third country” rule, which President Biden is effectively resurrecting.
Also, in 1968, the US Senate ratified the 1967 Protocol Relating to the Status of Refugees, an international treaty that forbids states from sending people back to places where their lives and rights are threatened. This is a grim reality for thousands of people now stuck in makeshift encampments at the border who have fled hideous violence in their home countries. The protocol makes it clear that
“No Contracting State shall expel or return (“refouler”) in any manner whatsoever to the frontiers of territories where … life or freedom would be threatened on account of … race, religion, nationality, membership of a particular social group or political opinion.”
The US Constitution’s Article 6 stipulates that such international agreements “shall be the Supreme law of the land.” It is hard to take seriously claims that asylees and refugees are criminal trespassers and that adhering to domestic and international law is actually a violation of legal statutes. Mr. Brnovich and his allies have it precisely backwards, and President Biden, in his remarks last week, did not mention this important point of law.
As far as “open borders” are concerned, that is a criticism that has no connection to contemporary reality. There were open borders in the United States until the end of the nineteenth century, when all immigrants had to do was fill out a landing card upon arrival. However, that began to change in the 1880s with the Chinese Exclusion Act. Today, the southern border is highly militarized. A report by the Department of Homeland Security states that the budget for border surveillance was over $16 billion in 2022 alone. US Customs and Border Protection employs in excess of 19,000 agents, 16,000 of who are stationed in southern states adjacent to Mexico. Hundreds of thousands of migrants are turned away or expelled every year. The “open border” charge is a complete myth.
Some notable Republicans have immigrant backgrounds, making their anti-migrant positions another instance of hypocrisy. For instance, former President Trump’s mother and paternal grandfather came from Scotland and Germany, respectively. Florida Governor Ron DeSantis, who infamously sent Venezuelan migrants to Martha’s Vineyard without notifying local authorities, is of Italian extraction.
Former Attorney General Brnovich’s parents emigrated from the former Yugoslavia. In an interview for the Phoenix New Times, Brnovich recounted how Croatian fascists persecuted ethnic Serbs like his mother’s family during World War II. According to his retelling, his mother’s friend, a woman who eventually found refuge in America, had been forced to hide in forests to escape execution at the hands of marauding bands.
That is not much different than what happens to migrants who hide from roaming gangs in the Darien Gap, a huge jungle that stretches between Colombia and Panama. According to Doctors Without Borders, an organization that provides medical care for those who undertake perilous journeys northward, many Venezuelan women are often found hiding there and are later raped, robbed or killed.
The United Nations High Commissioner for Refugees records hundreds of stories from those who are literally running for their lives. A horrifically typical example is that of a seventeen-year-old boy from El Salvador. He said that a gang tried to persuade him to join and when he refused, he was beaten. A friend who refused was murdered. That’s when he decided to go to the United States. At the conclusion of his interview, he simply said, “I want a future.”
A decent future is likely what Brnovich’s parents wanted when they decided to emigrate, free from the terror that death threats and assaults evoke. Fear is no less intense and refuge no less necessary because of a person’s country of origin.
Both Republicans and Democrats would do well to remember that most Americans—70 percent according to a 2022 Gallup poll—favor immigration and think it is good for the country. Those sentiments should matter in a democracy and could well pave the way to more humane immigration policies.