Haiyun Damon-Feng is an Acting Assistant Professor of Lawyering at NYU School of Law. Her research lies at the intersection of administrative law and immigration law and policy, and focuses on issues relating to executive power, federalism, procedure, and race.…
NIMBYism at the Border
March 6, 2023
Asylum law has a major NIMBY problem, and the Biden Administration’s newly proposed asylum ban is poised to be an extreme manifestation of it.
NIMBY, or “Not In My Backyard,” refers to movements by land owners or residents opposing new development or use of the land or resources they view as within their domain. On February 21, 2023, the Department of Homeland Security and Department of Justice jointly proposed regulations that would allow for the rapid deportation of asylum seekers on the theory that if a person traveled through another country before arriving in the United States, then they are that other country’s problem. These regulations are a variation on previous Trump-era policies that have been deemed unlawful by federal courts in California and the District of Columbia, and many scholars and advocates, including myself, have argued that policies like the asylum ban violate the United States’ obligations under both domestic and international law.
Politely cast by the government as a way to “encourage other countries to provide protection to migrants who need it” but recognized as an “asylum ban” by human rights advocates, the proposed regulations would effectively bar the vast majority of asylum seekers from qualifying for asylum in the United States. The policy, if passed, would mark a sea change in U.S. asylum law and procedure. It would be a departure from the United States’ historical practice — one that is in accordance with domestic and international law — of accepting and processing asylum seekers no matter how or where they entered the country. And, because it would apply only to migrants arriving through the southwest land border, the ban would have a clearly disproportionate impact on Central Americans, Haitians, Cubans, South Americans, and Africans — and anyone who cannot afford or obtain a plane ticket directly to the United States or Canada.
Generally, the proposed regulations would create a “rebuttable presumption” of ineligibility for asylum for migrants who enter the United States without authorization if they (a) travelled through a third country without applying for asylum there, or (b) did not register for and receive a prescheduled time to report to a designated port of entry through the new, but extremely glitchy, CBP One smartphone app. There are exceptions built into the rule for unaccompanied children and people who have “exceptionally compelling circumstances,” but these exceptions appear to be quite narrow. For many asylum seekers, the policy is clear: if they passed through other countries on their way to the United States, they must seek (and be denied) asylum in each of those other countries before they are eligible for asylum in ours.
The primary justification given for the proposed asylum ban is that, starting in May 2023, the United States will be faced with a historically high number of asylum seekers. This is due to a confluence of factors, including backlogs in processing asylum seekers that have accumulated since the Title 42 emergency order, issued at the start of COVID, functionally halted the process of seeking asylum at the southern border for over three years. The Title 42 order is scheduled to lift on May 11, 2023, the same day the proposed regulations would go into effect. Other factors contributing to the heightened levels of migration to the United States include political and economic instability in Nicaragua and Venezuela; continued violence in the Northern Triangle of Central America; political turmoil and fallout from natural disasters in Haiti; ongoing civil war and unrest in Cameroon, the Democratic Republic of the Congo, and Somalia; and efforts in the European Union to close their territory to asylum seekers as well.
The regulations argue that the solution to this heightened need for asylum is to band together with other nations in the Western Hemisphere to process and absorb all of these asylum seekers — not in our back yard, but in the countries they pass through before reaching us. But if these are the same countries that asylum seekers are fleeing, what does applying for asylum within one of these countries look like?
To illustrate the challenges that the proposed asylum ban would pose to asylum seekers, we might look to Mexico, which (at the insistence and with the assistance of the United States) has increased its asylum processing in recent years. COMAR, Mexico’s refugee processing agency, has expanded its presence throughout the country, and Mexico reports that it accepted more than 131,000 asylum applications in 2021, an 87% increase compared to 2019. However, COMAR does not have the funding or resources to meet its operational need, and has “forced hundreds of thousands to wait in appalling conditions to seek protection.”
Human rights groups continue to report that violence and discrimination against Central Americans and other migrants who are dark-skinned or perceived as Indigenous remain rampant throughout Mexico. Black migrants face even more targeted discrimination and violence from both civil society and Mexican government officials. Several of my former clients — all of whom were from Central America — were robbed, kidnapped, or raped by Mexican government officials while waiting for their chance to seek asylum. None of them felt safe in Mexico, but under President Biden’s proposed asylum ban, those experiences would likely not be enough to overcome the rebuttable presumption of ineligibility for asylum in the United States. Under the proposed regulations, individuals must show an imminent threat of future grave harm — threats arising from past harms or threats “based on generalized concerns about safety” are not sufficient.
Other countries in Central America are even worse equipped to process and support asylum seekers. A few years back, the United States implemented a policy to return asylum seekers to Guatemala, El Salvador, and Honduras pursuant to Asylum Cooperative Agreements (ACAs), which were entered into by the Trump Administration but swiftly terminated by the Biden Administration. The agreements prohibited migrants from seeking asylum in the United States by expelling them to these inaccurately dubbed “safe third countries” and allowing them to seek asylum there. The implementation of the ACAs was a humanitarian disaster. The vast majority of people expelled under the ACAs forfeited their right to seek asylum because the host country’s nascent — and effectively nonfunctioning — asylum system was impossible to navigate. Of the 945 asylum seekers sent to Guatemala pursuant to the ACA, not a single one was granted asylum.
The European Union has also been experimenting with pushing asylum seekers away. Following the refugee crisis in Europe in 2015, the EU entered into a deal with Turkey, a primary transit country for refugees fleeing to Europe, wherein migrants attempting to enter Greece would be expelled to Turkey. Europe’s move has been met with criticism from human rights groups and has resulted in state-sponsored violence towards refugees and the deaths of migrants fleeing violence and persecution.
The underlying assumption of these types of NIMBY policies is that asylum seekers should be willing (or required) to accept “any port in a storm,” no matter the port or the danger, instability, or hardship it presents. Yet U.S. courts have previously rejected this as a de facto requirement for asylum. In Damaize-Job v. INS, the Ninth Circuit found that it is reasonable for a person (in this case, from Nicaragua) who has experienced persecution “to seek a new homeland that is insulated from the instability of Central America and that offers more promising economic opportunities.”
The United States has also historically been opposed to policies like the proposed asylum ban. During the debates around the drafting of the 1951 Refugee Convention, the U.S. delegate pushed back against giving countries broad power to expel refugees for considerations of “public order” — the same type of justification the Departments of Homeland Security and Justice are now offering for the proposed asylum ban. The U.S. delegate took the position that:
“[W]hether or not a refugee was in a regular position, he must not be turned back to a country where his life or freedom would be threatened. No considerations of public order should be allowed to overrule that guarantee, for if the State concerned wished to get rid of the refugee at all costs, it could send him to another country or place him in an internment camp.”
The proposed asylum ban would manifest the parade-of-horribles consequences that our own delegate warned against and that we have previously decried as unacceptable.
In an era where the world’s politics, climate, and economies are inextricably linked to the push factors driving refugee migration, perhaps it is time to revisit our commitments to asylum seekers and refugees. For too long, “refugee-receiving” nations have profited from policies that exploit and destabilize “refugee-producing” nations, contributing to the very conditions that are pushing people to flee. Forced displacement is a global phenomenon, and it is a global responsibility. Asylum seekers should not be cast away as someone else’s problem, and the United States’ repeated displays of NIMBYism at the border should be rejected.
Many thanks to Karen Musalo, Dorien Ediger-Seto, Natasha Chokhani, and the editors of the Harvard Law Review for their helpful comments and feedback, and to Mumtaz Abdulhussein and Bailey Kendall for their excellent research assistance.
Haiyun Damon-Feng
New York University School of Law