Joe Biden gives US asylum-seekers second chance: Policy's possible impact and legal quagmire many face

Asylum-seekers whose claims were dismissed or denied under a Trump administration policy that forced them to wait in Mexico for court hearings will be allowed to return for another chance at humanitarian protection, the US homeland security department said Tuesday in a move that could benefit tens of thousands of hopefuls.

Registrations will begin Wednesday for asylum-seekers who were subject to the “Remain in Mexico” policy and either had their cases dismissed or denied for failing to appear in court, The Associated Press reported.

Many are believed to have left the Mexican border region, thinking their cases were finished, raising the possibility that they will make the dangerous trek to return.

The official said the administration is aware of those dangers and considering bringing people to the United States like it is doing to reunite families that remain separated years after Trump's “zero tolerance" policy on illegal border crossings.

The move is another significant effort at redress for Trump policies that Joe Biden administration officials and their allies say were cruel and inhumane and defenders say were extremely effective at discouraging asylum-seekers from coming to the US.

How many people will be impacted?

Under that criteria, it is unclear how many people will be eligible to be released into the United States pending a decision on their cases, according to a senior Homeland Security official who spoke on condition of anonymity because the announcement had not been made public.

But Michele Klein Solomon, the International Organisation for Migration’s director for North America, Central America and the Caribbean, told the AP she put the number at at least 10,000 people. Her organisation is working closely with the Biden administration to bring people to the border and ensure they test negative for COVID-19 before being allowed into the country.

The estimate seems low.

Syracuse University's Transactional Records Access Clearinghouse said the move could benefit 34,528 migrants — 27,842 who denied for failing to appear in court and 6,686 whose cases were dismissed.

President Joe Biden halted the Remain in Mexico policy his first day in office and soon allowed an estimated 26,000 asylum-seekers with active cases to return to the United States while their cases play out, a process that can take years in a court system backlogged with more than 1.3 million cases. More than 12,300 people with active cases have been admitted to the US since February, while others who have registered but not yet entered the country bring the count to about 17,000.

That still leaves out tens of thousands of asylum-seekers whose claims were denied or dismissed under the policy, known officially as “Migrant Protection Protocols.” Advocates have been pressing for months for them to get another chance, but the administration has been silent, leaving them in legal limbo.

The legal quagmire for asylum seekers

Many asylum-seekers whose claims were denied for failure to appear in court say they were kidnapped in Mexico. Others were too sick or afraid to travel to a border crossing in a dangerous city, sometimes with appointments as early as 4:30 am. Advocacy group Human Rights First tallied more than 1,500 publicly reported attacks against people subject to the policy.

Difficulty finding attorneys from Mexico meant few had legal representation, contributing to a measly 1.6 percent grant rate among cases that were decided. US authorities gave asylum-seekers a list of low- or no-cost attorneys, but phones would ring unanswered and messages went unreturned.

The Biden administration has not decided whether to admit people who showed up for court and had their claims denied, the official said. The logic behind the expanded eligibility is to give people who didn't appear in court another opportunity.

About 6,700 asylum-seekers had cases dismissed, the vast majority in San Diego, often after judges found the government made a mistake in applying the policy or the migrants failed to appear.

In all, about 70,000 asylum-seekers were returned to Mexico under the policy introduced in San Diego in January 2019 and expanded across the border after then president Donald Trump threatened Mexico with higher tariffs if it didn’t do more to reverse a major spike in border crossings.

The policy was highly effective at deterring asylum claims but widely criticized for exposing asylum-seekers to dangerous conditions in Mexican border cities and violating their rights under domestic law and international agreements, advocates say.

Those who were denied under the policy can register on a website operated by the UN refugee agency in collaboration with the International Organisation of Migration.

It is unclear where eligible asylum-seekers are but the migration group will work to bring them to the border, Klein Solomon said. The Mexican government has moved many people from the border to other parts of the country, arguing that it was safer to remove them from areas more in the grip of organised crime.

The US migrant crisis in numbers

Border encounters — a widely used but imperfect gauge that tells how many times US authorities came across migrants — rose sharply during DonaldTrump’s final months as president, from an unusually low 17,106 last April to 74,108 in December. They soared during President Joe Biden’s first months in office. Encounters totaled more than 180,000 in May, the highest since March 2000.

That’s only part of the picture, though. Who’s crossing is just as important a gauge as to how many are making the attempt, if not even more.

Mexican adults fueled last year’s rise, a throwback to one of the largest immigration increases in US history, spanning from 1965 through the Great Recession of 2008. In March 2020, the Trump administration introduced pandemic-related powers to immediately expel people from the United States without an opportunity to seek asylum. Facing no consequences, Mexican men kept trying until they made it.

About 28 percent of people expelled in March had been ousted before, according to Biden administration officials, compared with a 7 percent pre-pandemic recidivism rate in the 12-month period that ended in September 2019. The recidivism rate was 48 percent among Mexican adults during one two-week stretch last year in San Diego.

Families and children travelling alone, who have more legal protections and require greater care, became a bigger part of the mix after Biden took office. They accounted for more than 40 percent of all encounters in March, up from 13 percent three months earlier.

JooYeun Chang, a US health department acting assistant secretary, said the numbers of unaccompanied migrant children since March are "simply unprecedented".

The United States was by far the most popular destination for asylum-seekers last year, with 250,800 new claims, more than twice as many as Germany, with 102,600 claims, the UN refugee agency reported last week.

Spain, France and Peru rounded out the top five.

With inputs from agencies