So far, the message has leaned too hard in the direction of telling asylum seekers not to come.
Alejandro Mayorkas, the new secretary of Homeland Security, gave a press briefing on Monday that showcased this problem.
There was good news and bad news. The good news is that Mayorkas announced that parents whose children were separated from them under Trump while they sought asylum here — and still haven’t been reunited with them — will have the option of reuniting in the U.S.
To that end, Mayorkas said the administration will “explore lawful pathways” for those families to remain in the U.S. This was a big ask, though there are still uncertainties ahead.
Lee Gelernt, an ACLU lawyer who represents those children, noted that Mayorkas merely committed to exploring the possibility of allowing families to unite here. “We need to see concrete, specific progress,” Gelernt told me.
This is critical, because these families were subjected to appalling abuse at the hands of the U.S. government.
Still, Gelernt noted that he’s “grateful” that the administration has made a “commitment to helping these families,” which he called an “important first step.” So this is arguably moving in the right direction.
But the bad news is that generally speaking, the administration is still struggling to get its message to asylum seekers right.
Mayorkas declared that those who want to seek asylum in the U.S. “need to wait.” He noted that arriving families and single adults will continue to be turned away due to a covid-related health guideline adopted by Trump — under Title 42 of the Public Health Safety Act — that allows the government to temporarily block noncitizens from entering to preserve public health.
Under this policy, Trump had been expelling asylum seeking adults and children, and as Alex Nowrasteh shows, those numbers have been quite dramatic. But the Biden administration has been allowing unaccompanied children to enter (and get taken into custody) despite the restriction, while keeping it in place for adults and families.
There are two difficulties here. First, it’s not clear why Biden still has yet to lift the restriction imposed under Title 42. As Gelernt pointed out, this must only be used in the interest of public health, and not to “control migration.”
Mayorkas’ framing of the issue makes it sound as if the latter is part of the goal, i.e., to buy time to rebuild the system. And as Gelernt noted, DHS — an enormous agency with all sorts of resources — surely has the capacity to test arriving migrants for covid in a way that protects public health.
What’s more, under the current policy, asylum seekers are being expelled without even getting a hearing. And our commitments to international human rights laws and norms dictate that they must get a fair hearing and due process.
Which brings us to the second problem. There’s no way to justly telling asylum seekers that they “need to wait.”
“For a family that’s facing immediate danger, that statement is meaningless,” Gelernt told me.
To be clear, there are real complexities here. It might not be crazy for the administration to worry about the politics of lifting the public health restrictions right now (but even if that reading of the politics is right, that’s not a kosher reason for keeping them in place).
What’s more, it’s understandable that the administration might want to send a message that the new system has yet to be implemented, particularly to those who might get exploited by smugglers into believing that with Trump gone, they can now waltz in.
But there’s a better way to send this message. Officials should lead unambiguously with the idea that we are restoring the human rights commitments that Trump tried to destroy, and clarify that those with reasonable grounds to apply for asylum will get a fair hearing if they come, but also that no one should be under any illusions that the system will be dramatically transformed overnight.
“Our laws are unequivocal that we must give them the right to seek asylum,” Gelernt told me. Instead, Gelernt said, the message should be that “you’re going to be entitled to a hearing, but you will not necessarily be automatically given permanent status.”