This past Christmas Eve, after putting my kids to bed, I was able to sneak away to attend midnight mass at St. Mary’s Basilica in Minneapolis. While it has been years since I have been an observant Catholic, the ritual of Catholic mass is still comforting and provides an opportunity to reflect on how being raised in the Catholic faith has shaped who I am and my work as an immigration attorney and professor.
For fellow Catholics, the Christmas season includes a number of faith-based traditions and biblical stories of the Holy Family. While most know the story of the nativity and the Epiphany visit of the Three Wise Men, one lesser known story is the Holy Family’s flight to Egypt. According to the Gospel of Matthew, shortly after the visit from the Three Magi, Joseph is warned by an angel in a dream to flee with Mary and the Baby Jesus to Egypt to escape King Herod’s order to kill all male babies in Bethlehem, known as the Massacre of the Innocents. Reflecting as an adult and immigration attorney on this story that I first learned in childhood, one fact is clear: Joseph, Mary and Baby Jesus were refugees seeking asylum in Egypt.
While the Holy Family was allowed to seek safety and refuge in Egypt, the same cannot be said for refugees seeking asylum on our southern border. Indeed, the past five years have been marked by a pervasive attack chipping away at the right to seek asylum in the U.S. Under the Trump administration, these measures included things as horrific as separating parents from their children to serve as a deterrent to asylum seekers, to banal regulatory changes making it more difficult to qualify for asylum.
In December 2018, I saw another policy firsthand while serving as an attorney volunteer for the organization Al Otro Lado in Tijuana, Mexico. Under “metering,” the U.S. government limited the number of individuals allowed to present themselves at a port of entry each day to request asylum. During my time in Tijuana, the U.S. government accepted and processed only 40 asylum seekers per day at the San Ysidro Port of Entry. For context, San Ysidro is the busiest land port in the U.S., processing 100,000 people into the U.S. each day, so claims it could not process more than 40 asylum seekers per day clearly defied credulity.
Sadly, the metering policy was only the tip of the iceberg. In January 2019, the Trump administration began the Migrant Protection Protocols (MPP) Program, also known as “Remain in Mexico,” which required certain asylum seekers to wait out the asylum process outside of the U.S. and attend hearings in makeshift tent courts near the border. Asylum seekers placed in MPP faced horrific conditions in makeshift refugee camps in northern Mexico, where they were subjected to kidnapping, extortion, sexual assault and other violence at the hands of local cartels. Additionally, most in MPP had to prepare their asylum claim without the help of a lawyer, making it almost impossible for them to win their case.
On March 20, 2020, at the start of the coronavirus pandemic, the situation worsened when the Trump administration implemented the Title 42 Policy, effectively closing the border to asylum seekers. Under this policy, justified by public health law in Title 42 of the U.S. Code, all individuals appearing at ports of entry to request asylum or apprehended after crossing the border were summarily expelled to Mexico or their home country. Since implementation of Title 42, public health experts have decried the practice, noting that there is no evidence that expelling migrants is mitigating the spread of COVID-19 within the U.S.
However, this hope soon turned to frustration as the Biden administration kept Title 42 in place for all, save for unaccompanied minors. In December 2021, in compliance with a court order, the Biden administration also restarted MPP and expanded the program to include Haitians. While Biden’s critics have attempted to claim he is for “open borders,” the reality is that the border remains effectively closed to asylum seekers under Biden, just as it was under Trump.
Our country’s failure to accept and process the claims of asylum seekers is both a violation of our treaty obligations under the 1951 Refugee Convention and 1967 Protocol and our moral obligation to protect those seeking safety. As we begin a new year and celebrate the feast of Epiphany this week, I hope that Biden will make good on his campaign promise to restore the asylum system, while also honoring the words of Christ to which he often refers: “whatsoever you do to the least of my people, you do unto me.”
Ana Pottratz Acosta is an associate professor at Mitchell Hamline School of Law in St. Paul, where she specializes in immigration law.
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