Op-Ed: Enough with the political games. Migrants have a right to asylum

Young migrants walk past razor wire
Migrants walk past razor wire fencing to be taken by the Border Patrol after crossing the Rio Grande at Eagle Pass, Texas, in May.
(Dario Lopez-Mills / Associated Press)

President Biden’s seemingly chaotic policy toward asylum seekers at the U.S. border is no accident. It’s carefully crafted to minimize political fallout. The administration should keep it simple instead, by following the law and doing the right thing — admitting those who arrive at our borders seeking asylum.

Give voters a chance, Mr. President. The American people value decency. They don’t respect craven and calculated inconsistency.

This week, the Biden administration announced an expansion of a Trump-era policy to turn away individuals fleeing persecution who reach our borders. This began with a pretext of limiting the spread of COVID-19, using a public health law known as Title 42. Now it’s just a sop to people who oppose immigration.


Until the Trump administration used Title 42 in this way, the nation had honored its obligation to asylum seekers for 40 years, under the 1980 Refugee Act. It grants the right to seek protection. Abrogating that right has resulted in the untold suffering, the return of refugees to persecution and death, and chaos at the U.S.-Mexico border.

In April 2022, the Biden administration stated its intent to end Title 42. Litigation delayed the termination, but in mid-November, a federal judge ruled the policy unlawful, and ordered it to end by Dec. 21. The Supreme Court has stayed that order until it hears arguments next month.

Now, in a head-spinning turn of events, Biden has announced the expansion of Title 42 to Haitians, Nicaraguans and Cubans — nationalities that had not previously been subject to summary expulsion at the border.

If this were not enough of a contradiction, the administration also plans to resurrect another Trump-era policy which Biden had previously denounced, the “transit ban.” This rule bars from asylum any migrants who do not apply for and receive a denial of asylum from the countries they pass through on their way to the U.S.

This “outsourcing” of our refugee obligations to countries of transit, which a federal court found unlawful when implemented by the Trump administration, is ludicrous on its face. The asylum seekers who arrive at our border pass through countries such as Honduras, El Salvador and Guatemala, with human rights conditions as dire as in the migrants’ nations of origin.

To date, the only country with which we legally have such an arrangement is Canada — which makes sense because it has a robust refugee protection system and an admirable human rights record. And even if there are other countries of transit, such as Costa Rica, that have a well-developed framework for the protection of refugees, and solid records on human rights, they are already taking in numbers of asylum seekers that far exceed their capacity.


At the same time as the Biden administration rolls out plans for these and other anti-asylum policies, it has announced a number of laudable measures, two particularly worthy of mention.

First, the administration will create a special “parole” program for Nicaraguans, Haitians and Cubans, similar to one created for Venezuelans. This program will allow the entry of up to 30,000 individuals from the four countries each month — if they have a sponsor in the U.S. These individuals will be permitted to remain in the United States for two years, with authorization to work.

Second, the administration will increase to 20,000 from 15,000 the number of refugees from Latin America and the Caribbean whom it admits for resettlement in fiscal years 2023 and 2024.

These are positive developments, but modest compared with the unlawful and punitive anti-immigrant measures in this package deal.

It is no secret that the Republicans are highly motivated to make the border an issue. They will continue to do so, regardless of the reality. Rather than crack down on asylum seekers to woo the votes of anti-immigrant constituencies, Biden should uphold our legal obligations and make the case for why it is the right thing to do.

Doing so is the principled and moral path. It is also good politics. Polling consistently shows strong support for protecting asylum seekers, across party lines. It is not too late for the administration to change course, to uphold our national ideals, and to be an example to other nations around the world.

Biden will be criticized either way. He might as well be criticized for doing the right thing.


Karen Musalo is a law professor and the founding director of the Center for Gender and Refugee Studies at UC Law, San Francisco. She is also lead co-author of “Refugee Law and Policy: A Comparative and International Approach.”