New Asylum Ban Guts Basic Principles of Protection

The Biden administration’s new asylum rules are just a prettied-up version of Trump’s infamous travel ban.

Guatemalan migrant minors arrive back in Guatemala on Feb. 7, 2023, after being stopped at the U.S.-Mexico border and deported. (Johan Ordonez / AFP via Getty Images)

The Biden administration rolled out a new asylum rule last last month that bars people from seeking asylum simply because they are seeking asylum at the southwestern border. The rule manipulates legal principles designed to protect the vulnerable while capitalizing on myths about asylum seekers and migrants to support its rationale.

Like the Trump administration before it, the Biden administration is prioritizing the appearance of border control over saving people’s lives.

The impetus for the new ban is the impending end of the COVID-19 public health emergency, at which time the government will no longer be able to rely on pandemic restrictions to bar people from entry into the United States. This terrifies the Biden administration, which is already struggling to address increased arrivals at ports of entry and interceptions of migrants along the vast areas of the border where no formal ports of entry exist.

Right now, Biden, like Trump, keeps people out by pressuring the Department of Homeland Security (DHS) to close ports of entry or immediately remove people encountered along the border. After the public emergency ends, however, the administration would have to return to “regular processing”—meaning that everyone encountered would have a chance for a formal removal process and the opportunity to seek asylum.

But this has the potential to be a public relations disaster for the administration. Congressional Republican leadership members are already holding hearings at the southwestern border to showcase the Biden administration’s “border crisis.” And the Biden administration’s political calculation appears to be that the public will blame him for a situation that has been building for more than two decades.

Its solution is to jettison the right to asylum unless an asylum seeker meets a new “lawful pathway condition” set forth in the rule.

Under the new rule, a person encountered anywhere along the southwest border will not have access to asylum unless they have:

  • been pre-authorized for parole into the United States,
  • made an appointment with the U.S. Customs and Border Protection (CBP) ahead of time, or
  • can prove that they have applied for and been denied asylum in another country.

Unaccompanied children are exempted from the rule, but anyone else will be subject to a “rebuttable presumption of ineligibility” unless they can demonstrate an acute medical emergency, are a victim of trafficking, or face an imminent threat of serious danger. Families may also receive some grace, but the description of the process for rebutting the bar for families is so convoluted that it is hard to determine who is actually protected. As Dara Lind of the American Immigration Council wrote, the process involves “12 not-at-all easy” steps. In other words, it is as clear as mud.

The Biden administration’s political calculation appears to be that the public will blame him for a situation that has been building for more than two decades.

Migrants protest outside the United States Consulate in Tijuana, Mexico, on Jan. 9, 2023, while President Joe Biden was in Mexico City for a regional summit with the leaders of Mexico and Canada, where border and regional migration problems were set to be at the top of the agenda. (Guillermo Arias / AFP via Getty Images)

The rule is scaffolded by so many distortions of law and misconceptions about asylum applicants that it can be hard to see the cruel calculations lying underneath it all. This is still a version of the infamous Trump travel ban, prettied up with a “rebuttable presumption of ineligibility” that is supposed to give it respectability.

In theory, this rebuttable presumption discourages Nicaraguans, Venezuelans, Haitians and Cubans eligible for new parole programs from coming to the border. In fact, DHS cites about a month’s worth of data showing a significant drop in Venezuelan arrivals in the early days of that parole program. But it is far too early to prove that an asylum ban would deter these groups from coming, especially if the parole programs become backlogged or the political crises in these countries continue to worsen.

In practice, everyone else arriving at the border—Central and South Americans, Mexicans, Russians, Afghans, people from across Africa and Asia and more—will be competing for limited time slots using an app designed for truckers to schedule inspection of their goods. They will be trying day after day to snag an appointment, all the while risking their lives in the increasingly dangerous towns along the Mexican side of the border.

They will be punished for being from the wrong country, not having enough resources, or not having enough patience to wait. And if they cross the border without detection, they will have lost the chance to apply for asylum. Yes, they can attempt to rebut the presumption—but they face disadvantages, especially in the quick-fire process the Biden administration has dreamed up that would take the place of a credible fear-screening for many.

Describing this ban as a lawful pathways condition is also deeply disingenuous, particularly because it conflates the concept of “alternative legal pathways” for refugee protection with the regulation of entry.

  • In the former, the United Nations High Commissioner for Refugees (UNHCR) and refugee advocates encourage countries to offer refugees a chance to access other legal immigration streams that provide a path to permanent residence—such as employment-based visas. It is an effort to reduce the pressure on the refugee resettlement process by expanding legal access to permanent programs.
  • In contrast, the parole programs championed by the Biden administration offer some immediate assistance, but provide no permanent protection on their own.

The failure to pass the Afghan Adjustment Act, despite the imminent expiration of parole for 74,000 Afghans, demonstrates how precarious this approach can be. People are trying to apply for asylum and special immigrant visa status, but there is insufficient capacity and infrastructure and too many backlogs to quickly process them. Still, potential parolees at least have some kind of trade-off: A legal option for remaining in the United States, no matter how tenuous, may exist.

Not so for everyone else. Conditioning asylum on whether or not someone first obtained permission to get in line or tried their luck somewhere else guts the asylum system. It privileges those who can afford to wait over the most desperate who may have neither the time, the resources nor the strength to hang on until they win the CBP lottery.

They will be punished for being from the wrong country, not having enough resources, or not having enough patience to wait.

Obtaining permission to get in line is not a legal pathway; it is an administrative convenience. And it only works if the rebuttable presumption is virtually never rebutted, or the belief that “my case is different” will still overwhelm the system.

Finally, the rule generates misconceptions about asylum applicants that have been repeatedly refuted. It argues that the number of persons demonstrating a credible fear of asylum—legal process often used to determine whether someone goes before an immigration judge or is immediately removed—is far higher than the number of people who are ultimately granted asylum.

One would hope so. Humans, especially traumatized humans, are often unable to quickly recount the reasons they fled their country. Women and girls fleeing sexual violence and domestic abuse may be particularly penalized by split-second determinations that don’t take into account the difficulties of sharing intimate details with a stranger; lawyers spend months or years unpeeling layers of such stories. The credible fear screening, when properly executed, rests on the premise that it is better to err on the side of saving a life, even if that means some people who aren’t really at risk get passed on to the next stage.

The rule also suggests that given the overall asylum grant rate, all those credible fear seekers don’t have legitimate claims. Being found ineligible for asylum does not mean that someone is a liar or is gaming the system. More often than not, the harm, discrimination or fears they discuss don’t rise to the legal level required to obtain asylum—but that doesn’t mean those aren’t legitimate reasons for trying to find protection in the U.S. Many of those more complicated legal issues or close calls can’t be decided in a day, requiring dedicated analysis to reach a fair conclusion.

There is no denying that the U.S. has an outdated, imperfect and costly system for regulating its border that is being tested by a growing flow of displaced persons seeking everything from work to family to protection from persecution. Congress bears a significant share of the blame for failing to provide the resources and updating the laws needed to manage the flow of migrants more humanely. But sacrificing the right to asylum to avoid a deep, systemic problem is not the answer.

Take Action

Let the president and the Departments of Homeland Security and Justice know that the new asylum rule contradicts American law and principles, contradicts the president’s campaign promises and executive orders, and is not the way to resolve migration at the border. The public comment period closes rule on March 27, 2023.

  • Click here to express your opposition.
  • Use this website to submit comments if you prefer not to go through the federal register directly.

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Mary Giovagnoli is an immigration attorney and policy expert who has worked for over 25 years in both the federal government and nonprofit advocacy to improve the immigration system. She is a former executive director of the Refugee Council USA. She served as the DHS deputy assistant secretary for immigration policy from 2015 to 2017.