Biden’s Asylum EOs and Where to Go from Here

In a series of Executive Orders (EOs) issued Tuesday night, President Joe Biden took several steps toward rolling back the Trump administration’s punitive and cruel asylum-related policies and practices, redressing the harm they caused, and restoring migrants’ basic human rights. The three EOs focus, respectively, on developing welcoming strategies to promote integration, inclusion, and citizenship for “New Americans;” creating a framework for addressing regional migration and to repair and strengthen the U.S. asylum system (“Asylum EO”); and reuniting families separated through Trump’s “Zero-Tolerance” policy (“Family Reunification EO”).

From the perspective of my organization’s U.S.-based clients – all torture survivors, most of whom are asylum seekers – the EOs are laudable in many respects but fall short in others. There is still a long way to go not only to turn the page justly and compassionately on the last four years, but crucially, to fix an asylum system that was broken well before Trump took office.

For example, there is a lot to like about the Asylum EO, which clearly signals a break from Trump-era discriminatory exclusion and a turn toward humanitarianism. It rescinds Trump’s anti-asylum EOs and proclamations. It adopts a regional strategy to address root causes of migration from Central America and to strengthen Central and North American countries’ asylum systems and resettlement capacity. The Asylum EO also directs reviews of both the “Remain in Mexico” program and the practice of summarily expelling asylum seekers under the pretext of public health (so-called “Title 42 expulsions”).

President Biden could and should have gone further, though, in particular by ending Title 42 expulsions altogether and creating a path to safety for asylum seekers stranded and at grave risk in Mexico. Since March 2020, the Department of Homeland Security (DHS) has turned away over 200,000 people at the border, asylum seekers included, under the guise of the COVID-19 pandemic, when public health experts have explained repeatedly that there is no legitimate reason for doing so. It is well documented that “Remain in Mexico,” which has forced 70,000 people (including children) into perilous circumstances, has had a devastating impact.

There are also other harmful and unlawful asylum-related policies that the Asylum EO does not tackle and that the administration must terminate quickly, including turnbacks and “metering” at ports of entry and detention (often without parole) of asylum seekers.

The task force created by the Family Reunification EO is critically important, and urgent—628 parents separated from their children under the “Zero Tolerance” policy reportedly remain so today. While it was a missed opportunity to limit the task force’s mandate to separations caused by “Zero Tolerance” – DHS also separated families because of often mistaken gang affiliation or minor criminal histories, for example, as well as pursuant to “Remain in Mexico” – one aspect of the task force’s charge begins to get at where the Biden administration must go from here: developing “recommendations regarding the provision of additional services and support to the children and their families, including trauma and mental health services” (emphasis added).

Trauma is the thread that weaves throughout the Trump administration’s asylum agenda, and a lens through which the Biden administration can identify and structure necessary additional reforms. The President needs to ensure that his administration undoes the full scope of Trump’s trauma-inducing scheme, provides redress for those who suffered it, and addresses longstanding, pre-Trump features of the asylum system that exacerbate or independently cause trauma.

To that end, the Center for Victims of Torture (CVT) today released a report on Designing a Trauma-Informed Asylum System in the United States. As the report explains, “[a] system that is trauma-informed ‘realizes the widespread impact of trauma and understands potential paths for recovery; recognizes the signs and symptoms of trauma in clients, families, staff, and others involved with the system; and responds by fully integrating knowledge about trauma into policies, procedures, and practices, and seeks to actively resist re-traumatization.” Such a system also inherently promotes fairness, accuracy, and efficiency.

Building on recommendations that more than 100 NGOs (including CVT) made to transform the nation’s immigration system broadly, as well as more specific humanitarian protection-focused recommendations from partner organizations, the report urges the Biden administration to prioritize the following five actions:

  1. Provide initial and ongoing training to all government personnel who regularly engage with asylum seekers on: recognizing signs of trauma exposure; understanding common behaviors of people exposed to trauma; and sensitive or trauma-informed principles for interacting.

All government personnel who regularly engage with asylum seekers should receive basic training on the psychological and physical effects of torture and other traumas, and on how to engage with trauma survivors in a non-adversarial manner. Such training should be tailored depending on the recipient’s role in the system—for example, whether the person is law enforcement, serves an adjudicatory function, is charged with collecting information, and/or has medical responsibilities. The training should include how to ask questions in a non-interrogative manner; incorporating boundaries, transparency and choice; and allowing for breaks as needed.

  1. Provide secondary trauma and resilience training and support, initially and at regular intervals, to all government personnel who routinely engage with asylum seekers.

Indirect exposure to trauma can have harmful health consequences to the individual and lead to occupational hazards such as prejudicing asylum seekers’ claims and high staff turnover. Secondary trauma and resilience training and support need to be expanded and emphasized for all government personnel who regularly engage with asylum seekers, including but not limited to asylum officers, Customs and Border Protection officers, Immigration and Customs Enforcement officers, immigration judges, and medical personnel.

  1. Provide trauma survivors with government-funded rehabilitation services, including as a form of redress for asylum seekers traumatized by Trump administration policies and practices.

A program to provide services should be housed in the Administration for Children and Families’ Office of Refugee Resettlement but should operate in close coordination with United States Citizenship and Immigration Services. Rehabilitation services should be provided by non-governmental organizations and entities with appropriate clinical expertise that contract with the federal government. Such services could also be mandated through settlement agreements in certain pending litigation.

  1. Phase out immigration detention.

Often indefinite in nature, immigration detention is both re-traumatizing and an independent source of trauma for many subjected to it and should be phased out entirely. The administration can dramatically reduce the detained population quickly by immediately ending family detention and cutting ties with the private prison industry; eliminating bond for those eligible for release; and applying a presumption of liberty when revisiting the status of currently detained immigrants and during initial assessments of those newly arriving.

  1. To the maximum extent possible, eliminate features of the asylum system that are unnecessarily adversarial or otherwise exacerbate or cause trauma.

There are a number of reforms that need to be made to reorient the asylum system toward cooperation, justice, and respect. They include shifting to a humanitarian-based “reception center” model at U.S. borders, with robust case management and support services, to minimizing the use of immigration court, to assessing claims through non-adversarial methods, processes, standards, and settings designed to facilitate truth telling and limit re-traumatization.

IMAGE: WASHINGTON, DC – FEBRUARY 02: U.S. President Joe Biden (L) talks with newly sworn in Homeland Security Secretary Alejandro Mayorkas before signing several executive orders directing immigration actions for his administration in the Oval Office at the White House on February 02, 2021 in Washington, DC. The orders will aim to reunite migrant families that were separated at the U.S.-Mexico border and authorize a wholesale review of former President Donald Trump’s immigration policies. (Photo by Doug Mills-Pool/Getty Images)

 

About the Author(s)

Scott Roehm

Washington Director of the Center for Victims of Torture. Chair of the Board of Directors for Refugee Council USA.