Sinema-Cornyn border proposal would hurt refugees. Congress should reject it

US asylum system needs to be repaired, not rigged against people fleeing persecution

Migrants are detained by U.S. Customs and Border Protection on May 21 at the border in San Luis, Ariz.  (Nick Ut/Getty Images)
Migrants are detained by U.S. Customs and Border Protection on May 21 at the border in San Luis, Ariz. (Nick Ut/Getty Images)
Posted June 3, 2021 at 3:26pm

The Bipartisan Border Solutions Act of 2021 has been framed by its authors as a way to address what they term an “influx” of migrants at the southern border. For any member of Congress who values the rights and lives of refugees, opposing this bill should be an easy decision.

Rather than building a fair, humanitarian system for people fleeing persecution, the legislation, introduced in the Senate by Kyrsten Sinema, D-Ariz., and John Cornyn, R-Texas, and in the House by Henry Cuellar, D-Texas, and Tony Gonzales, R-Texas, would punish refugees for seeking protection and subvert due process. While it includes some positive provisions, it creates more problems than it solves.

The bill proposes conducting rushed asylum officer interviews in just 72 hours — an absurd time frame for cases with life-and-death stakes. Arriving at the border, people seeking asylum are often detained, unrepresented, separated from loved ones, and physically and mentally exhausted from their journeys to the United States. As legal experts and services providers, we know all too well that asking someone in such dire circumstances to immediately present a coherent legal claim for asylum is unrealistic and unfair.

Asking traumatized refugees to plead their case immediately after being taken into U.S. custody isn’t just irresponsible and immoral; it will turn these interviews into tools for denying refugees protection.

Fast-track screenings hurt refugees and undermine the integrity of the asylum process, transforming initial assessments into rapid deportation devices. So it’s no wonder that the Trump administration resorted to similar tactics. When it secretly rolled out two similar programs, the percentage of asylum seekers who passed their interview plummeted from 74 percent to just 23 percent.

Congress should not emulate the policies of an administration that sought to inflict the maximum amount of suffering possible on people fleeing violence and persecution.

The Bipartisan Border Solutions Act would also allow immigration courts to rapidly schedule certain removal cases for trial when the U.S. sees sustained, increased migration. This risks creating counterproductive “rocket dockets” that would undermine due process and exacerbate case backlogs.

Finally, the bill would expand detention, creating at least four new “processing” centers, managed by U.S. Customs and Border Protection, where credible fear screening or asylum interviews would be conducted. Given CBP’s record of subjecting asylum seekers to horrific conditions, blocking access to legal representation and abusing people under its charge, entrusting it to decide the fates of families and adults seeking refuge is a tragically flawed approach that will result in human rights abuses.

The bill would have a particularly harmful impact on unaccompanied children, who would be left to languish longer in immigration custody for no good reason, ignoring the robust processes Congress has designed to protect children.

Any bill that would rig the system against asylum seekers is a step in the wrong direction. Instead, Congress should take meaningful steps to repair the U.S. asylum system.

Rather than turn away refugees, Congress should reject the failed framework of detention and punishment that has endangered refugees fleeing persecution. Our leaders should urge the Biden administration to prioritize — not sacrifice — justice, by upholding U.S. refugee law and rescinding policies that separate families and deny refugees asylum. Instead of rushed screenings and adjudications, asylum seekers should be swiftly released from abuse-ridden CBP custody to shelters with humanitarian expertise, and referred for U.S. asylum interviews in destination communities. These steps, along with measures to address chronic understaffing in the government offices charged with deciding asylum cases and to close cases unnecessarily clogging dockets, will enable prompt and just asylum decisions.

So for those considering this latest proposal, as legal experts we can tell you that it would undoubtedly lead to flawed decision-making and shut the door on the people we serve. If enacted, bona fide refugees will be illegally returned to danger on the government’s watch.

The United States needs a fair, timely and humane asylum system that welcomes people seeking refuge with dignity. The Bipartisan Border Solutions Act is not it. 

Eleanor Acer is the senior director of the refugee protection program at Human Rights First.

Karen Musalo is a professor and chair in international law at the University of California, Hastings College of the Law, and director of its Center for Gender and Refugee Studies.

Laura St. John is the legal director at the Florence Immigrant and Refugee Rights Project.