Biden Administration’s Proposed Asylum Ban: Illegal, Inhumane, and No Solution

On February 23, 2023, the Biden administration published a proposed rule that would illegally ban many refugees from seeking asylum in the United States and deprive refugees of the ability to reunite with their families and pursue a path to citizenship. Members of Congress, human rights advocates, faith-based organizations, and many others had previously voiced strong opposition to this plan and urged the administration to not issue the proposed rule. The proposed asylum ban, which is a new iteration of prior Trump administration asylum bans that were repeatedly struck down by federal courts, would unlawfully make refugees ineligible for asylum based on manner of entry into the United States and transit through a third country, subject to certain exceptions.  

In his February 2021 Executive Order, President Biden promised to “restore and strengthen our asylum system, which has been badly damaged by policies enacted over the last four years that contravened our values and caused needless human suffering.” As a candidate, he pledged that his administration would not “deny[] asylum to people fleeing persecution and violence“ and would end restrictions on asylum for those who transit through other countries to reach safety. The proposed rule flies in the face of these promises. It is a blatant attempt to circumvent existing refugee law and treaty obligations and will lead the United States to deport refugees to life-threatening dangers. The administration plans to impose this asylum ban on May 11, 2023 when the illegal Title 42 policy is slated to end. The last thing the Biden administration should be doing is advancing the agenda of the former Trump administration and its anti-immigrant and hate group allies — who have welcomed the asylum ban — by replacing one inhumane Trump-initiated policy with another policy straight from the Trump playbook. That would be a tremendous humanitarian, legal and political mistake.  

The Biden administration has provided only 30 days for the public to comment on the proposed rule, effectively denying the public the right to meaningfully comment under the notice and comment rulemaking procedures required by the Administrative Procedure Act. This timeframe is insufficient for a sweeping proposed rule that would make asylum seekers ineligible for asylum in violation of U.S. law and deny many access to asylum.   

The Biden administration should withdraw this proposed rule and take steps — as Human Rights First and others have recommended — to uphold refugee law, restore and maximize access to asylum at ports of entry, strengthen capacities to receive and protect refugees in other countries, expand legal pathways to the United States, upgrade asylum processing, and stand up to racist, anti-immigrant fearmongering rather than adopting xenophobic rhetoric and versions of policies that its proponents have pushed.      

Fact Sheets

Published on February 23, 2023


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