Biden’s Asylum Ban Would Return U.S. to Trump-Style Policy

WASHINGTON, D.C. – After the Biden administration today proposed a rule that would illegally ban many refugees from seeking asylum in the United States due to their transit through unsafe countries where they did not seek protection, Human Rights First condemned the decision and urged the administration against promulgating these new provisions as a final rule.

“As a candidate, President Biden promised that his administration would not ‘deny asylum to people fleeing persecution and violence’ and would end restrictions on asylum for individuals who transit through other countries to reach safety. The proposed rule for an asylum ban modeled after the Trump administration’s policies undercuts those promises and will inflict devastating harms on refugees while violating U.S. law and treaty obligations,” said Eleanor Acer, senior director for refugee protection at Human Rights First. “By imposing this policy on asylum seekers in credible fear interviews, the rule would lead to the rapid deportation of asylum seekers who are unable to prove to asylum officers that they meet requirements that have no basis in the statute and are irrelevant to their fears of return.”

Under the proposed rule, asylum seekers who enter the United States between ports of entry or who present themselves at a port of entry without a previously-scheduled appointment will be presumed to be ineligible for asylum unless they applied for and were denied protection in a country they traveled through on their way to the United States, subject to certain exceptions. Like the Trump administration’s asylum transit ban, this rule would deny refugees asylum and block and rapidly deport refugees without access to asylum hearings through expedited removal.

By barring asylum seekers from protection based on their manner of entry, the proposed rule would make access to asylum protection in the United States generally contingent on refugees’ access to technology and ability to navigate the notoriously glitchy “CBPOne” app, which offers minimal appointments. Restricting access to asylum at ports of entry by requiring asylum seekers to use CBPOne forces refugees to wait in danger and violates U.S. law.

Last month, Human Rights First joined nearly 300 immigrant, civil, and human rights groups in a letter to President Biden urging the administration to halt this proposed rule-making. Our opposition was echoed on Capitol Hill, with nearly 80 Members of Congress sending a similar letter to President Biden.

Human Rights First has long recommended that the Biden administration take rights-respecting steps to strengthen refugee reception capacities in other countries, expand common pathways to the United States, restore asylum at ports of entry and elsewhere, upgrade asylum processing, and uphold refugee law. In January 2023, Human Rights First released a backgrounder detailing the damage that further pursuit of an asylum ban would inflict.

The Trump administration repeatedly issued asylum ban rules to deny asylum to otherwise eligible refugees due to their transit and entry; federal courts often struck down these bans for violating U.S. law. They also violated international treaty obligations, which uphold the principle of non-refoulement and generally prohibit the imposition of penalties based on the manner of entry into the country of refuge. The United Nations Refugee Agency (UNHCR) repeatedly condemned attempts to impose such bans.

In 2020, Human Rights First issued a report documenting the harms inflicted by the Trump administration’s transit ban when it was in effect. The organization and its partners also filed a lawsuit that led a federal court to hold that the Trump entry ban, which barred from asylum those who cross the border between ports of entry, was inconsistent with U.S. asylum law and vacate it, as well as a lawsuit that resulted in a federal court vacating the Trump transit ban.


Published on February 21, 2023


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