Biden Administration Asylum Ban

Widely Opposed Misstep Violates Law and Fuels Wrongful Deportation of Refugees

On May 16, 2023, the Biden administration published a final rule (“asylum ban”) that would, with limited exceptions, bar nearly all asylum seekers who traveled through another country on their way to the U.S. southern border, unless they (1) applied for asylum in one of those countries and received a denial, or (2) managed to secure one of the highly limited appointments to enter at an official port of entry (via a glitchy, inequitable smartphone app known as CBP One). This asylum ban, like prior Trump administration bans, unlawfully makes refugees ineligible for asylum based on how they enter the United States and whether they applied for protection in a country they traveled through on their way to seek safety. It also forces many to make an impossible choice of whether to remain in danger for months or longer while they try to access the lottery-based system of CBP One or seek safety in the United States and risk being banned under the rule and deported to harm. U.S. agencies have referred to the ban as a “temporary measure” that is subject to review. The Biden administration should immediately end this ban, which endangers refugees every day that it is left in place.

This asylum ban will return refugees to persecution, torture, and death in their home countries and other countries where their lives are at risk, in violation of non-refoulement, the non-derogable cornerstone of international refugee protection. It will leave other refugees in limbo in the United States without permanent status or a pathway to citizenship. The ban also weaponizes the expedited removal process to subject asylum seekers to sham fear screenings and deport them without an opportunity to apply for asylum. The rule applies to asylum seekers who enter the United States during the next two years, but asylum seekers may still be denied asylum under the ban many years later if they entered during this time frame.

The Biden administration’s asylum ban violates U.S. law and international treaty obligations. It is a new iteration of similar bans promulgated by the Trump administration that were repeatedly struck down by federal courts because they violated central features of U.S. refugee law. Organizations have challenged the Biden asylum ban in federal court for also violating U.S. refugee law.

In issuing the final rule, the Biden administration disregarded tens of thousands of public comments in response to its proposed rule that condemned the rule and urged the administration not to issue it. Of the 51,000 comments received in response to the proposed rule after a mere 30-day comment period, the vast majority of comments opposed the ban, including comments from the U.N. Refugee Agency (UNHCR), the union representing asylum officers who would be forced to implement the illegal ban, former immigration judges, 82 members of Congress from the President’s own party, Black-led, Indigenous, civil rights, and LGBTQ+ organizations, Catholic Bishops, rabbis, and Holocaust survivors. Anti-immigrant hate groups, in contrast, welcomed the proposed ban.

Despite the widespread opposition, the administration finalized the illegal asylum ban and expanded the ban to cover even more asylum seekers who enter the United States. Whereas the proposed rule applied to those who enter at the southwest land border, the final rule expands the ban to apply to those who enter at coastal borders at or near the U.S.-Mexico border. Like the proposed rule, the final rule primarily targets Black, Brown, and Indigenous asylum seekers who flee to the southern border in search of safety. Other changes to the final ban, which include limited exceptions for some asylum seekers based on age and family, do not alter the rule’s illegality or the reality that countless refugees who qualify for asylum under law enacted by Congress — adults, families, and children fleeing persecution — will be denied the opportunity to even apply for asylum, deported to danger, or left in limbo in the United States.

The administration issued this ban in direct violation of President Biden’s promises. Then presidential candidate Biden condemned Trump asylum bans, promised to end restrictions on asylum for those who transit through other countries to reach safety, and pledged that he would not “deny[] asylum to people fleeing persecution and violence.” Upon taking office, President Biden issued an Executive Order to “restore and strengthen our own asylum system, which has been badly damaged by policies enacted over the last 4 years that contravened our values and caused needless human suffering.” The decision to promulgate the asylum ban is an abysmal abdication of leadership and a legal, moral, and political mistake.

The administration has attempted to attribute the decline in crossings at the border after the end of the Title 42 policy on May 11 to its asylum ban. The reality, however, is that it confirms that Title 42 was dysfunctional and counterproductive as a border policy. Among hundreds of asylum seekers whom Human Rights First has spoken with at the border, none understood the implications of the asylum ban. Asylum seekers are continuing to try to seek asylum at ports of entry through the CBP One app but many face insurmountable barriers to use CBP One, as documented in a May 2023 report by Haitian Bridge Alliance, Human Rights First, and other organizations in a delegation of human, civil, and immigrants’ rights leaders as well as a June 2023 report by the Florence Immigrant & Refugee Rights Project, Human Rights First, and Kino Border Initiative. Moreover, forcing refugees to wait indefinitely in danger and banning them from asylum in violation of U.S. and international law cannot be touted as a success.

As Human Rights First and other organizations have repeatedly recommended,  instead of imposing policies that ban, block or punish people seeking asylum, the Biden administration should maximize access to asylum at ports of entry, redouble steps to strengthen capacities to receive and protect refugees in other countries, expand legal pathways to the United States without making such pathways contingent on denial of asylum access, and ramp up and work with Congress to fund reception capacities, legal representation, and sufficient asylum adjudication capacities to address asylum backlogs and ensure fair and timely adjudication of asylum cases.