The United States has made a commitment — by law and by treaty — to protect people who come to this country fleeing persecution. But the Trump administration relentlessly attacked people seeking protection and the very concept of asylum. It is now nearly impossible for anyone to secure asylum, no matter how strong their claim or fear. President-elect Biden has the opportunity to restore our asylum system, as he has promised to do. Unwinding Trump’s harmful and unlawful policies will be just the start to making our system more efficient, fair, and humane. A reversal is simply not enough — we must build our asylum system back better.    

The asylum system Trump unilaterally destroyed was in place since 1980 when Congress passed the bipartisan Refugee Act, enshrining in federal law the nation’s international commitment to provide safety for people fleeing danger. These laws allow anyone who has been persecuted because of their race, religion, nationality, political opinion, or membership in a particular social group to request asylum, which if granted allows them to live and work in the U.S. and get on a path to citizenship. Under our current law, individuals who arrive at the border and express a fear of returning to their home countries are either placed directly in a process to decide their asylum claims or screened further to determine if they could ultimately be granted asylum. If they pass, they are placed in the asylum process. Either way, they wait in the U.S. while a judge decides their case. 

After Trump, this system is in shambles. People seeking asylum confront an alphabet soup of new anti-immigrant policies that ensure no one gets a fair shake. Biden must work swiftly to end these harmful policies and restore our asylum system. First, he must end the disingenuously named “Migrant Protection Protocols” or MPP, under which people seeking refuge are forcibly sent to Mexico, where they languish in dangerous conditions sometimes for more than a year. Refugee camps in Mexico are now filled with people sent there by the U.S. with no consideration of their asylum claims. Many of these individuals and families have experienced violence, extortion, and kidnapping, and some have even been killed. The entire concept of asylum is that it is an urgent request — that coming to the U.S. is critical to one’s safety — so being forced to remain in danger indefinitely is contrary to asylum’s core purpose.

Among those trapped in Mexico are the ACLU’s clients in Nora v. Wolf, who have been forced to wait indefinitely in Tamaulipas, one of the most violent and lawless areas in the world. One family was kidnapped twice; the mother and her eldest daughter were gang raped over a period of days by cartel members. And despite the egregious harms they’ve suffered, the Trump administration refused to let them wait for their asylum hearing in the U.S. Biden must end MPP immediately and ensure that the people subjected to the policy are able to pursue their claims in the U.S.

Second, Biden must rescind the “Title 42” order — CDC’s regulations and orders that permit hasty expulsion of asylum seekers and unaccompanied children, unlawfully denying them any chance to seek humanitarian relief like asylum. Under Title 42, young teenagers like J.B.B.C., who witnessed a murder in Honduras and fled after gang members threatened him, are summarily sent back to danger. The three federal judges who have examined the Title 42 order all agree that it is illegal. And although the Trump administration tried to cloak the order in public health justifications, numerous public health experts denounced the policy and explained why it does not protect this country’s health. CDC’s own experts reportedly objected to the policy and refused to support it in court; it was implemented only after the White House pressured the CDC to accept it. As public health experts have explained, the government has the means to safely process people seeking protection while safeguarding the health of U.S. residents.

Third, President-elect Biden must act quickly to end Trump’s two illegal asylum bans. The first bans anyone who entered the U.S. between ports of entry, even though U.S. laws state that it does not matter how a person enters if they are fleeing danger. The second bans anyone who travels through a third country to reach the U.S., unless they first apply for and are denied asylum in a third country — impacting nearly every non-Mexican asylum seeker. It is a naked attempt to deny as many people as possible, regardless of their need for protection under our laws. While the ACLU and partners quickly blocked the first asylum ban, the second ban had disastrous consequences for people seeking asylum before a judge vacated it in June 2020. But, the Trump administration has doubled down, issuing a new version of the second ban at the eleventh hour that takes effect just a day before inauguration. Biden must quickly rescind both bans.

These are just the tip of the iceberg. There are numerous disastrous anti-asylum policies that Biden must promptly stop, including:

• Trump’s “Asylum Cooperative Agreements” (ACA) with Guatemala, Honduras, and El Salvador and the related policies that force people to seek asylum in those countries instead of in the U.S. These ACA policies not only violate our laws, but they are also in bad faith, as thousands of people in those countries are fleeing persecution there as well. Biden must terminate the deceitful ACAs and rescind the related policies that allow people to be deported to other countries without regard to their safety. 
• PACR/HARP, Trump policies that hold asylum seekers in crowded, unsanitary Border Patrol facilities that unlawfully block access to lawyers during their initial screening interview, depriving people of basic due process and a fair chance at asylum. Indeed, it is unsurprising that people held under such inhumane conditions are far less likely than other asylum seekers to pass their screening interviews. Biden should put a stop to these harmful programs and ensure everyone can access their attorneys.
• The massive new asylum rule issued in December that upends nearly every aspect of asylum law, including longstanding “political opinion,” “particular social group,” and “persecution” definitions, as well as other core elements of asylum eligibility and the legal process. It is designed to block most people seeking protection. Biden should work diligently to rescind this disastrous rule and restore our longstanding asylum standards.

Biden does not have an easy task ahead of him — in fact, there are already trumped up warnings of border “surges” in an effort to make reinstituting our asylum system politically harder. It will take courage, diligence, a commitment to protecting people in danger as our laws allow, and respect and deference to experts in asylum who have been dealing with the consequences of Trump’s policies for four years. Biden has promised these solutions already; it is all of our jobs to make sure he follows through. 

This month, two newly-elected sheriffs canceled contracts with Immigration and Customs Enforcement (ICE). The sheriffs in Gwinnett County, Georgia and Charleston County, South Carolina were elected in November in part due to their campaign pledges to stop doing ICE’s bidding under a program known as 287(g). Voters in Cobb County, Georgia, also replaced a sheriff who conspired with ICE with an opponent of the 287(g) program.

These election results came after a multiracial coalition of organizations worked to build community power, elevate the voices of immigrants, and publicize the harms of a program that leads to civil rights violations, including racial profiling, and puts immigrant families at risk.

The 287(g) program compels local law enforcement agencies to conduct federal immigration enforcement, including interrogating people in jails about their immigration status and initiating the deportation process. But all too often it ends up  creating a chilling effect that dissuades immigrants from reporting crimes, seeking protection, or serving as witnesses for fear that the very agencies meant to protect them may instead try to deport them.

Law enforcement agencies with 287(g) agreements waste millions of local tax dollars on federal enforcement all while undercutting their safety mission by destroying community-law enforcement relationships and diverting attention from local priorities. As Mecklenburg County, North Carolina, Sheriff Garry McFadden noted when he ended the county’s agreement, 287(g) “erodes trust with our community and ties up critical resources that should be used to ensure public safety,” and Charleston County Sheriff Kristin Graziano criticized the program as “legal racial profiling.”

The program has created a climate of fear, as immigrants who live in 287(g) jurisdictions could end up in deportation proceedings for such “offenses” as failing to yield while turning or eating lunch outdoors. Many residents also report that they have been profiled while driving because of their race or appearance, pulled over by police pretextually — for traffic violations or no reason at all — so that police can question their immigration status.

All too often, they are left in the custody of sheriffs with egregious track records. Gwinnett County, which had the most active 287(g) program in the country, had to pay millions in settlements after a pattern of sheriff deputies wantonly assaulting detained people was revealed. The previous sheriff of Cobb County, who was the first in Georgia to sign a 287(g) agreement, oversaw over 50 jail deaths while in office; meanwhile, the former sheriff of Charleston County, the largest county in South Carolina to have a 287(g) agreement, was once arrested for assaulting a detained individual.

Sheriffs rarely face election challengers, but these sheriffs or their hand-picked successors all lost running on a pro-ICE platform, with voters resoundingly rejecting their anti-immigrant policies. Other jurisdictions that ended their contracts in recent years include Mecklenburg and Wake counties, North Carolina; Las Vegas, Nevada; Harris County, Texas; Anne Arundel County, Maryland; and Prince William County, Virginia.

While this program preceded Donald Trump, it exploded under his leadership, as former Attorneys General Bill Barr and Jeff Sessions and Trump himself pressured sheriffs to join. The Trump administration even made these contracts worse by removing expiration dates and other guardrails and dropping civil rights investigations into local law enforcement agencies, looking the other way in instances of abuse or, in Trump’s case, outright encouraging brutality. Other sheriffs, including those who said they oppose working with ICE, believed that state laws such as Florida’s SB 168 forced them to sign ICE agreements against their better judgement.

These agreements are not the only ways localities force immigrants into the deportation system, as many honor ICE detainers, or requests that local jails prolong a person’s detention past their scheduled release date so they can be detained by ICE, without a 287(g) agreement in place.

As President-elect Biden takes office, he can move to protect civil rights, public safety, and the country’s moral fabric by fulfilling his pledge to “end all” the 287(g) agreements entered into by the Trump administration and rolling back harmful immigration practices, including the use of detainers.

Termination of the program would also align with Vice President-elect Kamala Harris’ belief that 287(g) agreements weaken “trust between law enforcement and those they serve” and her vows to “end this program.” As California Attorney General, she also urged local agencies not to honor ICE detainers, noting that as a district attorney she worked with undocumented victims of crime who feared “they would be treated as the criminal” if they went to the police for help.

The immigrant detention and deportation machine, fueled by 287(g) agreements, has destroyed families, ruined lives, and worsened the COVID-19 pandemic. President-elect Biden should listen to the communities, advocates, and law enforcement officials who believe that 287(g) undermines our safety and our values and make good on his pledge to bring the program to its end.

Some dyed in the wool civil libertarians have criticized the ACLU for supporting Donald Trump’s impeachment. These critics maintain that our commitment to the First Amendment should solely trigger a defense of the president’s “free speech.” But freedom of speech poses no bar to holding a president responsible for his unfounded, bad-faith effort to subvert the results of a free and fair election.

Our board — comprised of leading lawyers and activists from every state and the District of Columbia — is a thoughtful, deliberative body of committed civil libertarians. After meetings on both Saturday and Sunday, the ACLU board unanimously passed a resolution again calling for President Trump’s impeachment, which can be found here.

We discussed at length the free speech implications of this impeachment process. We concluded that President Trump’s remarks on Jan. 6 can be considered part of a pattern of efforts to upend an election he lost. If a president’s repeated lies, illegal political pressure, and the stoking of a mob to subvert the democratic process are not an abuse of power warranting impeachment, it is difficult to know what would be.

Holding the president accountable for his words on Jan. 6, as part of that pattern, does not run afoul of the First Amendment. The House impeachment resolution reflects this. It does not single out Trump’s speech on Jan. 6 inciting a mob, but rather identifies it as part of a pattern of “efforts to subvert and obstruct the certification results of the 2020 presidential election,” including the improper pressure placed on Georgia Secretary of State Brad Raffensperger “to ‘find’ enough votes to overturn the Georgia presidential election results and threatened Mr. Raffensperger if he failed to do so.”

The ACLU believes a president can be impeached for speech that a private citizen could not be prosecuted for.

First, proceedings to impeach and remove a president are not criminal proceedings. They specifically seek to remove the president from office. While the First Amendment would likely bar the criminal conviction of a private citizen for the president’s Jan. 6 speech, impeachment is a political remedy: to remove an executive official who has abused his office, not to convict them of a criminal offense. The Supreme Court has long held that public employees can be fired for on-the-job speech that would be fully protected from criminal prosecution. Whether the president has any First Amendment rights when speaking in his capacity as president has never been established. At a minimum, because of his role and authority, the president does not have the same freedom of speech as an ordinary citizen.

The First Amendment doesn’t protect the rights of public employees to say whatever they want when speaking in their official capacity. As a matter of law, public employees are regularly sanctioned for speech that fosters a hostile work environment. Their public position imbues their speech with more influence than the average citizen — as the saying goes, with great power comes great responsibility. It follows that President Trump doesn’t have unfettered free speech rights to subvert the results of a fair and free election. In short, a president who recklessly urged his followers to violate the law could be impeached even if an ordinary citizen could not be convicted for the same words, absent proof that his speech was intended and likely to produce imminent lawless action.

Second, impeachment proceedings do not require conviction of a crime, but a determination by the House and Senate that the president has abused his office in such a serious manner that he should be removed. “High crimes and misdemeanors” don’t have to be actual crimes or misdemeanors, and surely recklessly urging an unruly mob to intimidate members of Congress performing their constitutional duties, in order to undercut the results of a free and fair election, is sufficient.

No organization or individual has more consistently stood up for the free speech rights of individuals than the ACLU. From our defense of labor activists’ speech in the 1920s and 1930s, to Skokie, to Charlottesville, to our defense of BLM protesters, to the student free speech case the Supreme Court agreed to hear just last week, my organization steadfastly defends the First Amendment rights of individuals, no matter the popularity of their speech.

Part of that legacy is our landmark Supreme Court case, Brandenburg v. Ohio, which established First Amendment protections in the context of criminal prosecution for incitement of violence. That case ruled that even explicit advocacy of criminal activity is protected unless the individual’s speech is intended and likely to produce imminent lawless action. As proud (and protective) as we are of our Brandenburg precedent, we don’t believe that case should stand in the way of impeaching Donald Trump.

This civil libertarian can sleep well at night knowing that the First Amendment can be preserved, and Donald Trump can be impeached. In these hyper-partisan times, it is no surprise that leading critics of the ACLU might wish to deride us for allegedly sacrificing our commitment to the First Amendment in favor of punching down at an increasingly unpopular president. But as is reflected in our board’s thoughtful second call for Trump’s impeachment, our allegiance has always been, and remains, with the Constitution.

I also sleep soundly because I fundamentally believe that our society is finally grappling with complicated issues of race, rights, and freedoms that it long overlooked or took for granted. Recent debates about Twitter’s barring of Trump permanently, the racially disparate treatment of BLM protestors and white supremacist insurrectionists by law enforcement, and the impeachment of President Trump have led to a soul-searching debate that will make this country better and stronger in the long run. Indeed, Donald Trump’s most lasting legacy may be that he catalyzed a “resistance” movement that will transform into a deeper commitment to social justice and constitutional norms. It is this invigorated movement that will shape the work of the next administration.

Good night and good bye, President Trump.