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Biden made that statement after being asked about people in camps in Mexico waiting to find out if the U.S. would grant them asylum protection. Immigration experts told us that Trump’s “Remain in Mexico” policy, which sends asylum seekers to wait in Mexico, is unprecedented.
The United States reached a safe-third-country agreement with Canada in 2002. But experts said there were key differences between that agreement and the "Remain in Mexico" policy. Under the 2002 agreement, people have to request protection in the first of the two countries they arrived in. People who submit asylum claims aren’t sent to the other country to wait for a decision.
Former Vice President Joe Biden criticized President Donald Trump’s immigration policies as cruel and inhumane and said that under Trump, immigrants for the first time ever were having to seek asylum outside the United States. Biden, the presumptive Democratic presidential nominee, said he would change that.
"Are those asylum seekers that are on the other side of the border now in camps going to be allowed to come and do their claims inside the United States, something that has not been reported to them?" NPR’s Lulu Garcia-Navarro asked Biden.
"There’s got to be an orderly process for that to occur, as your colleague said," Biden said. "This is the first time ever you’ve had to seek asylum in a third country. It’s outrageous. It’s outrageous. It’s wrong."
The interview, aired Aug. 6, was with members of the National Association of Black Journalists and the National Association of Hispanic Journalists.
PolitiFact decided to fact-check Biden on whether it was true that asylum seekers for the first time ever "had to seek asylum in a third country." Biden’s campaign did not provide information to PolitiFact supporting his statement.
In the interview, Garcia-Navarro and Alfredo Corchado, a border correspondent for the Dallas Morning News, asked Biden about asylum seekers in camps in Mexico. So we’ll use that context to evaluate the claim.
Experts said it was unprecedented for people to be moved out of the United States after initiating an asylum claim here. That’s been the case under a Trump policy and has led to thousands of migrants setting up temporary camps in border towns in Mexico.
Under the "Remain in Mexico" policy, Central Americans who request asylum in the United States are sent to Mexico to wait for a resolution of their case. In this context, Mexico is the third country. However, people are not sent to Mexico to seek asylum there, but to wait for a decision on their U.S. case.
Under the Migrant Protection Protocols policy, also called "Remain in Mexico," Central Americans who arrive at the southwest border and ask for asylum in the United States are not let into the country as their cases make their way through the immigration system. Instead, they are sent to Mexico to wait there for the duration of their case, which can take months.
The policy, initiated by the Trump administration, has prompted thousands of migrants to live in makeshift camps in Mexican border towns. Human rights groups say migrants in these camps lack basic necessities and have fallen victim to gangs, kidnapping, sexual assault, exploitation, abuse and other dangers.
It’s the first time that the United States has had a program like Remain in Mexico, in which people who submit asylum claims in the United States are not allowed to be in the country during that process and instead are sent to wait in another country, said Susan Fratzke, a policy analyst with Migration Policy Institute.
In 2002, the United States and Canada entered into a safe-third-country agreement, so we asked immigration experts how that factored into Biden’s claim. A key difference between that George W. Bush-era agreement and Trump’s Remain in Mexico program is that under the 2002 agreement, people who apply for asylum in the United States are not sent to Canada while the U.S. case proceeds, they said.
Rather, asylum seekers have to request protection in the first of the two countries they arrived in (unless they qualify for an exception).
If a person arrives at a U.S.-Canada land border port of entry and requests asylum in the United States, U.S. immigration officials have to determine whether that person should be returned to Canada to seek asylum there first, based on the terms of the 2002 agreement, and vice versa.
The agreement was a Canadian initiative and has limited the number of asylum applications submitted in Canada by people who were first in the United States, said Charanya Krishnaswami, advocacy director for the Americas at Amnesty International USA.
In July, a court in Canada said the 2002 agreement violated Canada’s constitution.The Canadian government was given six months to respond to the court’s findings.
Immigration experts also said that the U.S.-Canada agreement was established under the assumption that both are safe countries equipped to process and offer asylum to qualifying migrants.
"This is not the case with the countries with which the Trump administration has recently entered into new agreements," said Parker Sheffy, a clinical supervising attorney at the Immigration Clinic at the University of Houston Law Center.
Sheffy and Krishnaswami pointed to Asylum Cooperative Agreements that the Trump administration reached in 2019 with El Salvador, Honduras and Guatemala. Under those agreements, the United States can send people seeking asylum in the U.S. to those Central American countries to request asylum there instead. The goal of those agreements is to limit asylum claims in the United States.
The agreements "can apply theoretically to any asylum seeker — regardless whether they actually even transited through the country to which the U.S. is seeking to send them," Krishnaswami said.
A March blog post from the Bipartisan Policy Center said the agreements with Central American countries were "a distinct new category of asylum agreements that reflect the Trump administration’s efforts to discourage asylum seekers from traveling to the U.S.-Mexico border."
Asked about asylum seekers in camps in Mexico, Biden said "This is the first time ever you've had to seek asylum in a third country."
Biden made that statement after being asked about people in camps in Mexico waiting to find out if the U.S. grants them asylum protection. Immigration experts told us that Trump’s "Remain in Mexico" policy is unprecedented. Under that policy, asylum seekers are sent to Mexico to wait for a decision on their U.S. case (not to seek asylum there instead).
The United States reached a safe-third-country agreement with Canada in 2002. But experts said there were key differences between that agreement and the "Remain in Mexico" policy. Under the 2002 agreement, asylum seekers have to request protection in the first of the two countries they arrive in. If a person is able to submit an asylum claim in the United States, they are not sent to Canada to wait for a decision on the U.S. case.
Biden’s statement is accurate but needs clarification or additional information. We rate it Mostly True.
Phone interview, Susan Fratzke, a policy analyst with Migration Policy Institute, Aug. 10, 2020
Email interview, Parker Sheffy, a clinical supervising attorney at the Immigration Clinic at the University of Houston Law Center, Aug. 10, 2020
Email interview, Charanya Krishnaswami, advocacy director for the Americas at Amnesty International USA, Aug. 10, 2020
Email interview, Jaya Ramji-Nogales, professor at Temple University who specializes in immigration law, international law, procedure and process, Aug. 7, 2020
Bipartisan Policy Center, The Exception to the Exception: How the Asylum Cooperative Agreements Reinstate Expedited Removal for Asylum-seekers, March 20, 2020
Federal court case in Canada, Canadian Council for Refugees v. Canada (Immigration, Refugees and Citizenship), July 22, 2020
Congressional Research Service, Immigration: U.S. Asylum Policy, Feb. 19, 2020
U.S. State Department archived content, 8. U.S.-Canada Agreement Covering Third-Country Asylum Claims at the Border (December 5, 2002)
Human Rights Watch, Q&A: Trump Administration’s "Remain in Mexico" Program, Jan. 29, 2020
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