U.S. Asylum and Border Policies Explained

The number of refugees and asylum-seekers from El Salvador, Guatemala and Honduras seeking safety in the United States has soared in recent years. Worsening violence fueled by drug cartels and gangs account for much of the increase, along with fragile institutions and increasing inequalities. Climate change is exacerbating the violence and economic hardship that are spurring increased displacement.

Each day thousands of families are forced to flee their homes because they experience and fear violence and persecution. They are forced to leave everything behind and undertake dangerous journeys just to find a safe place where they can rebuild their lives.

Here's what you need to know:

1. Why are people seeking asylum at the U.S. border?

2. Is it legal to seek asylum at the U.S. border?

3. What is Title 42? 

4. What are the Migrant Protection Protocols (MPP)?

5. What are the consequences of the Migrant Protection Protocols (MPP)?

6. What is UNHCR doing at the U.S.-Mexico border?

Why are people seeking asylum at the U.S. border?

People from Central America, Mexico, Venezuela, Colombia, Cuba, Haiti and beyond – including Asia and Africa – are escaping situations where they fear for their lives. In Central America, hundreds of thousands of families have been victims of violence, extortion and persecution at the hands of local gangs, with no recourse from government institutions. The high levels of violence in the region are only comparable to those experienced in war zones. In Venezuela, 5.9 million people have left the country, many escaping generalized violence and lack of food and medicine.

“I always remember that day. They called me to tell [my brother] that next time he messed with them, they would kill him,” says Patricia, one of the many victims of gang violence in Honduras. “We moved internally several times looking for a safe place to live. But the fear did not let us live in peace. Gangs find you everywhere in Honduras.”

Is it legal to seek asylum at the U.S. border?

The right to seek asylum is grounded in both the Universal Declaration of Human Rights (Art. 14) and the 1951 Refugee Convention (including its 1967 Protocol). Anyone who fears violence and persecution has the right to seek asylum and should not be returned to a territory where they fear threats to their lives or freedom (principle of non-refoulement, Art. 33, 1951 Refugee Convention). The U.S. Congress incorporated this definition into U.S. immigration law in the Refugee Act of 1980.

According to the 1967 Protocol, adopting countries including the United States should consider the individual claims of people requesting asylum in their territory or at a port of entry and have the obligation to provide protection and humanitarian assistance to those who need it. The U.S. Refugee Act establishes two paths to obtain refugee status -- either from abroad as a resettled refugee or in the United States as an asylum-seeker.

What is Title 42?

The United States has long had a legal framework to guarantee the right to seek asylum to individuals who arrive at our borders and ask for protection. But since March 20, 2020, that fundamental right has been largely suspended at U.S. land borders. Since that date, in the context of the COVID-19 pandemic, the majority of people seeking to apply for asylum have been turned away and “expelled” back to Mexico or their home countries under a provision of U.S. health law, section 265 of Title 42, without any consideration of the dangers they might be returned to.

UNHCR has maintained since the start of the pandemic that protecting public health and protecting access to asylum, a fundamental human right, are fully compatible. At the height of the public health emergency, many countries put in place protocols such as health screening, testing and quarantine measures for asylum-seeking populations, to simultaneously protect both public health and the right to seek asylum.

In September 2021, High Commissioner Filippo Grandi stated, “I reiterate UNHCR’s call for the U.S. government immediately and fully to lift its Title 42 restrictions in effect since March of 2020 which continue to deny most people arriving at the southwest U.S. land border any opportunity to request asylum.”

What are the Migrant Protection Protocols (MPP)?

The Migrant Protection Protocols, also known as the “Remain in Mexico” program, is a border policy first implemented in January 2019 under the Trump Administration whereby tens of thousands of individuals who arrived in the United States at the southwest border were sent back to Mexico to wait outside of the U.S. for the duration of their asylum procedures. 

The Biden Administration terminated the use of the Migrant Protection Protocols in early 2021 and worked with UNHCR to facilitate the safe re-entry of over 13,000 asylum-seekers who were waiting in dangerous and inhumane conditions in northern Mexico. The operation was conducted with robust COVID-19 precautions to ensure the health and safety of humanitarian personnel, border authorities and the asylum-seekers themselves.

However, litigation in the federal courts challenging the administration’s termination of the policy resulted in the reinstatement of the Migrant Protection Protocols in December 2021.

Though the Biden Administration has been compelled by court order to reinstate the policy, the administration has also taken steps to re-terminate the policy. UNHCR has urged the administration to continue to follow through with the termination of the policy, which jeopardizes asylum-seekers’ safety and violates due process.

What are the consequences of the Migrant Protection Protocols (MPP)?

Under this policy from January 2019 to January 2021, more than 70,000 asylum-seekers who arrived at the U.S.-Mexico border were sent back to Mexico to wait for their asylum hearings in U.S. immigration courts. Most of the asylum-seekers were from El Salvador, Honduras and Guatemala and accounted for more than 65 percent of the cases during that period. Other asylum-seekers impacted by the policy came from Cuba, Ecuador, Venezuela, Nicaragua and other countries. Human rights organizations reported attacks, kidnappings, extortion and other forms of violence targeting asylum-seekers in Mexico while awaiting their hearings.

UNHCR has from the start expressed its serious concerns about the Migrant Protection Protocols and their impact on asylum-seekers’ safety and their due process rights. The adjustments to the policy, reinstated in December 2021, are not sufficient to address these fundamental concerns. UNHCR continues to engage with the U.S. government to support efforts to improve reception and processing arrangements for asylum-seekers arriving at the U.S. southwest border.

What is UNHCR doing at the U.S.-Mexico border?

Along both sides of the U.S.-Mexico border, UNHCR partners with civil society, governments, faith-based organizations, legal service providers and others to strengthen the humanitarian response to better protect asylum-seekers, especially the most vulnerable among them. 

UNHCR’s response has focused on supporting non-governmental shelters providing immediate housing and humanitarian assistance to asylum-seekers, expanding access to legal assistance for asylum-seekers, preventing the separation of families, and providing technical advice to government authorities on how to develop fair and efficient asylum systems that respect international refugee law.

How you can help…

Become a monthly donor today and support UNHCR’s work to assist asylum-seekers at the U.S.-Mexico border as well as other people around the world fleeing conflict and persecution.

Nov 9 2021
Back to Gift Store >