Rebuilding from the ashes, Trump’s heritage on immigration and asylum policy

With President-elect Joe Biden’s new administration taking office on 20 January 2021, there will be an opportunity for the US administration to renew its commitment to human rights, not only by ending its own egregious human rights violations but also by re-engaging with the international community through the United Nations and multilateral institutions.

For four years the Trump administration has implemented policies that have time and again demonstrated its disregard for human rights and its desire to suppress the rights of specific groups for political gain. We have seen executive orders and federal policies passed, along with divisive and hateful rhetoric directed at women and girls, the LGBTQI+ community, Black and Latino people, migrants and refugees, among others.

One of the Trump administration’s flagship issues, since his 2016 presidential campaign, has been migration and asylum. His promises to build a wall along the border with Mexico and to destroy the asylum system soon became public policy. His administration has devoted significant time and effort to punishing those who arrive in the United States seeking safety and protection, including families and children. This has affected people fleeing levels of violence comparable to war zones, coming from El Salvador, Honduras and Guatemala, those fleeing political repression in Cuba and massive human rights violations in Venezuela and Nicaragua, as well as a growing number of people forcibly displaced from countries outside the continent due to persecution and conflict.

Instead of offering shelter to people in need, the Trump administration devised a series of policies to criminalize them and deny them protection. It did this by claiming that there were insufficient resources to respond to these cases, all the while spending billions of dollars on militarizing the country’s borders.

In 2018, thousands of parents seeking asylum were charged with crimes under a “zero tolerance” policy that resulted in thousands of children being forcibly separated and detained, literally held in cages or flown to other facilities thousands of miles away, without consent and with no information as to their whereabouts. The US authorities have clearly and deliberately inflicted deep and lasting mental suffering on these families in an attempt to deter other desperate people from seeking asylum.

Instead of offering shelter to people in need, the Trump administration devised a series of policies to criminalize them and deny them protection

As if these incredibly cruel and illegal practices were not enough, the Trump administration then instituted the programme known as “Remain in Mexico”, which has forced tens of thousands of people seeking asylum at the Mexican border to wait in Mexican border communities in dangerous and insecure conditions. Under this programme, and with the agreement of the Mexican government, the Trump administration has forcibly returned nearly 60,000 people to Mexico while their US asylum applications are being processed, where they are at the mercy of organized criminal groups that extort, kidnap and assault them on a regular basis.

In 2019 the Trump administration also pressured the governments of Guatemala, El Salvador and Honduras to sign a series of “safe third country” agreements, enabling it to disregard its obligations to process asylum applications for people from third countries whose conditions may be far from safe and who are in need of protection.

The use of immigration detention has also soared in recent years. Tens of thousands of migrants, including thousands of asylum seekers and families with children, are currently being held in immigration detention centres up and down the country, under the supervision of the Department of Homeland Security (DHS), while they fight for their right to remain in the United States. The Trump administration has used immigration detention as a way of punishing people solely on the basis of their immigration status and criminalizing those fleeing persecution and violence in their own countries.

These detention practices are exacerbating a crisis beyond the US borders: tens of thousands of people have been deported during the COVID-19 pandemic, including hundreds who tested positive after contracting the virus while being detained in unsafe and unsanitary detention facilities in the United States. Deportees have reported facing exposure to the virus, a quarantine system in their home countries that violates human rights, and stigma.

By March 2020, there was virtually no further possibility of seeking asylum at the US-Mexico border. Using the COVID-19 pandemic as a pretext, the Trump government has illegally expelled tens of thousands of people, including families and unaccompanied children, under an order nominally issued by the Centers for Disease Control and Prevention (CDC) that empowers border officials to summarily return people to Mexico or rapidly return them to their home countries.

Making the most of his last months in office, President Trump has introduced a number of new anti-asylum eligibility laws, including a ban on asylum for any persons transiting through a third country en route to the United States; a broad new regulation that radically redefines all elements of the definition of refugee; and a general prohibition on eligibility based on public health, which is rooted in xenophobia and discrimination rather than science.

It will be no easy matter to reverse the suffering these policies have caused. Joe Biden’s incoming government has promised a radical change in migration and asylum policy. And yet many of the human rights violations suffered by migrants and refugees are neither new nor exclusive to the Trump administration; his government merely sped up the machinery and dramatically exacerbated its dire consequences. This forms an outstanding historical debt that requires urgent attention.

President Biden will be able to set a new direction for his administration by, for example, issuing executive orders in his first days in office that place the human rights of people in need of protection at the heart of his actions. The United States has an opportunity to end its practice of unnecessary, costly and punitive immigration detention, which has caused such enormous human suffering and led to a crisis of infection during the pandemic.

Many of the human rights violations suffered by migrants and refugees are neither new nor exclusive to the Trump administration; his government merely sped up the machinery and dramatically exacerbated its dire consequences

Among other things, the Biden administration should also establish a moratorium on deportations during the COVID-19 pandemic, while dismantling the architecture of the Trump era’s illegal asylum and immigration policies. Restoring the asylum system and humanitarian protection must start by annulling the 20 March order automatically expelling asylum seekers and unaccompanied children without due process, as well as overturning the dozens of policies that unfairly limit access to the right to seek asylum, including at the US-Mexico border.

The new administration must ensure that people who are waiting in border communities in Mexico under the “Remain in Mexico” programme are immediately accepted into US territory to continue their asylum application processes. It is therefore essential that Mexican President Andrés Manuel López Obrador’s government cooperates closely with President Biden to put an end to this cruel and illegal policy.

The Biden government must furthermore establish strong alternative avenues of protection for people whose evident risk in their home countries requires urgent attention, such as the designation of temporary protection status for Venezuelan nationals and other forms of protection for people arriving from countries in crisis situations.

The road will not be an easy one but the political will shown by the Biden government since the election will be crucial in reversing the dire legacy of the Trump administration.