Kids will pay the price for system failures

WASHINGTON, February 23, 2023 — The asylum ban proposed this week by the Biden Administration is likely to disqualify most migrants at the southern border from seeking asylum. Unaccompanied children are exempt fromthe proposed rule, but children arriving with families are not.

The proposed asylum ban is deeply unfair. It applies only to migrants at the southern border. It favors wealthy, white immigrants who can secure visas and arrive by plane. It inflicts grave hardship on Black, brown and Indigenous asylum seekers, as Human Rights First explains in this fact sheet. But this deeply unfair rule is even more unfair to children. Here’s how:

5 ways the asylum ban punishes children

  1. Kids pay the price for the system’s mistakes: Children with families aren’t separately asked whether they have a basis for protection. So if their parents’ due process is botched, the kids pay the price by being returned to the very danger they and their family fled. And we’re talking about a lot of kids:The number of children arriving at the border is five times what it was 15 years ago and that includes children who come with families.
  2. Children don’t control their approach to the border: Children arriving with families don’t dictate where to cross, whether to apply for asylum elsewhere before reaching the U.S., whether to make an appointment to approach the border, or any other decisions required by the new ban. The process renders children invisible.
  3. Technology once again confounds parents and families: Even if a family fleeing persecution and violence manages to secure a smartphone, the rule requires them to usean app known to be routinely problematic, glitchy and oversubscribed. In addition, the app is available only in English and Spanish, and rejects the photos of Black and other dark-skinned migrants. These issues almost ensure that thousands of families will be sent back tolong waits that have proven particularly dangerous for children.
  4. Expedited processes disproportionately harm children: The proposed rule relies on “expedited removal,” which gives asylum seekers only a short window to make their claim for protection before potentially being at risk of deportation. Expedited removal has long proven harmful to children with families, who are typically not able to raise independent claims for protection and whose trauma, developmental stage, and potential disabilities add barriers when making their case to officials. By using this expedited process, which often denies legal counsel and adequate language services, the federal government also sets children and families up for failure and jeopardizes all children’s fundamental right to safety, liberty, and family integrity. First Focus on Children and our partners at the Young Center will soon release a report documenting the danger of expedited processes for children.
  5. Family separation makes new inroads: The rule theoretically attempts to keep families together if they arrive together. That said, families may still be separated under this rule (as they were under the Trump Administration version of this rule). The rule quite clearly excludes the common scenario in which one family member seeks protection first and petitions for spouse and children later. The rule eliminates a pathway for a parent who flees hoping to eventually bring their children to the U.S.

In addition, the proposed rule disregards the plain text of asylum law, which reads: “[A]ny [noncitizen] who is physically present in the United States or arrives in the United States (whether or not at a designated port of arrival . . .), irrespective of such [noncitizen’s] status, may apply for asylum. . . .” No appointment required, no need to go to the “right part” of the border, no specific status required on arrival. 

First Focus on Children is a bipartisan advocacy organization dedicated to making children and families a priority in federal policy and budget decisions.