Refugee Protection Travesty
Biden Asylum Ban Endangers and Punishes At-Risk Asylum Seekers
Executive Summary
On May 12, 2023, the Biden administration began implementing its new bar to asylum through a final rule (the asylum ban). While Biden administration officials have inaccurately touted it as “working,” the grim reality is that the asylum ban is a refugee protection, humanitarian, and legal travesty. As detailed in this report, in the two months since its implementation, the Biden asylum ban has stranded vulnerable people in places where they are targets of kidnapping and violent assaults, rigged the credible fear process against people seeking asylum, and deported many without meaningful access to counsel and despite potential eligibility for asylum under U.S. law. The harm inflicted by the asylum ban is compounded by U.S. and Mexican government policies that block, deny, meter or further impede access to asylum and leave people in atrocious conditions as they wait to seek asylum under the ban.
The Biden asylum ban renders nearly all asylum seekers who traveled through another country on their way to the U.S. southern border ineligible for asylum unless they (1) applied for and were denied asylum in one of those countries (regardless of their safety there, or the unrealistic requirement of waiting there for an asylum denial) or (2) managed to secure one of the highly limited “pre-scheduled” appointments to enter at an official port of entry (via CBP One, a glitchy, inequitable smartphone app operated by Customs and Border Protection (CBP) like a daily lottery). The Biden asylum ban — which violates U.S. law and treaty obligations — is a new iteration of similar transit and entry bans promulgated by the Trump administration that were repeatedly struck down by federal courts because they violated U.S. law. The American Civil Liberties Union, Center for Gender & Refugee Studies, and the National Immigrant Justice Center have challenged the Biden asylum ban in federal court on the same basis.
Unless they are lucky enough to get one of the limited CBP One appointments, people who enter at U.S. ports of entry to seek asylum or cross the border irregularly will generally be subject to the asylum ban’s penalties. These penalties may include rapid deportation through the expedited removal process, where many asylum seekers are subjected to a screening interview rigged by the asylum ban and quickly deported without a hearing on their case if they do not pass the screening. People who are not subjected to this rigged process or manage to overcome it will still likely be denied asylum in a later hearing and potentially deported to persecution or left in permanent limbo in the United States without a pathway to citizenship.
The Biden administration’s spin that its asylum ban is the key factor leading to decreased crossings is divorced from reality. In fact, after the Title 42 policy ended on May 11 and as the Biden asylum ban was implemented over the following weeks, Human Rights First researchers spoke with hundreds of people waiting to seek asylum in multiple Mexican border cities. Overwhelmingly, those interviewed by our researchers had not heard of the asylum ban and none understood its consequences. Regardless, a policy that leaves refugees to wait in danger and bans them from asylum in violation of U.S. and international law can never be described as a success.
If anything, the decline in numbers after the end of Title 42 confirmed that the Title 42 policy itself — which spurred irregular crossings and trampled on refugee law — was indeed a counterproductive, failed policy as well as a humanitarian fiasco. With the end of that ineffective and unlawful policy, the U.S. government can no longer rely on the Title 42 policy to circumvent U.S. immigration law at the southwest border. Accordingly, the government must process people who seek refugee protection at U.S. ports of entry or after entering the United States.
Every day that it is left in place, the Biden asylum ban endangers refugees and subverts refugee law. When running for president, then-candidate Biden condemned the Trump asylum bans and promised that he would not “deny[] asylum to people fleeing persecution and violence.” After taking office, President Biden issued an Executive Order to “restore and strengthen our asylum system, which has been badly damaged by policies enacted over the last 4 years that contravened our values and caused needless human suffering.” U.S. agencies have stated that the ban is only a “temporary” measure and that its duration is subject to review. The Biden administration should immediately rescind its asylum ban. Instead of imposing policies that ban, block, or punish people seeking asylum, the Biden administration should take the steps outlined below in this report’s recommendations.
This report is based on multiple research visits by Human Rights First attorneys and researchers to the Mexican cities of Matamoros and Reynosa, Tamaulipas; Ciudad Juárez, Chihuahua; Nogales, Sonora; and Tijuana, Baja California from May 9 through July 6, 2023; visits to shelters in the U.S. cities of Brownsville, El Paso, and McAllen, Texas and San Diego, California; research and reporting conducted with other organizations including Haitian Bridge Alliance and members of its May 2023 delegation, the Florence Immigrant & Refugee Rights Project and Kino Border Initiative, and humanitarian and religious workers in Mexico and the United States; other data, media and monitoring analysis; and hundreds of interviews and discussions with asylum seekers, humanitarian staff, religious workers, and others. Human Rights First has previously issued detailed analysis of the asylum ban rule and its violations of U.S. and international law.
