Trapped, Preyed Upon, and Punished

One Year of the Biden Administration Asylum Ban

Executive summary

On May 11, 2023, the Biden administration initiated a new bar on asylum through its Circumvention of Lawful Pathways rule. Often referred to as an “asylum ban,” the bar is structured to deny asylum, with highly limited exceptions, to non-Mexican people who cross into the United States between ports of entry, or arrive at ports of entry without  appointments. The ban is used with expedited removal to deny people full asylum hearings even if they would have a significant chance of winning asylum in immigration court, if they don’t meet a higher, unduly onerous, initial screening standard.

In its first year, the asylum ban and accompanying restrictions have endangered people seeking asylum; fueled returns to persecution and torture; spurred crossings outside U.S. ports of entry; undermined effective migration policy and refugee protection; and disproportionately threatened Black, Indigenous, LGBTQI+, women, children, and other at-risk people seeking asylum.  Because of the ban, vulnerable children and adults are forced to wait in danger in Mexico for up to seven months to obtain an appointment through Customs and Border Protection’s “CBPOne” app to seek asylum at a port of entry. Those waiting are targets of sharply escalating cartel kidnappings and violence,  and actions by the Mexican government that prevent them from reaching U.S. ports of entry to seek asylum, even if they are waiting for or have CBP One appointments.

This report updates prior Human Rights First reports issued in July 2023 and October 2023, and follows reports issued with Haitian Bridge Alliance and other partners in May 2023 and with Florence Immigrant and Refugee Rights Project and the Kino Border Initiative in June 2023. This report is based on research conducted over the last year in five Mexican cities: Tijuana, Baja California; Nogales, Sonora; Ciudad Juárez, Chihuahua; Reynosa and Matamoros, Tamaulipas; visits to shelters in five U.S. cities: San Diego, California; Tucson, Arizona; El Paso, McAllen, and Brownsville, Texas; visits to open-air detention sites in San Ysidro and Jacumba, California, to Lukeville and Sasabe, Arizona, information and case examples shared by attorneys and legal service organizations, and by humanitarian and religious workers in Mexico and the United States. It is supported by interviews with over 500 asylum seekers as well as discussions with over sixty legal, humanitarian, and religious workers on both sides of the U.S.-Mexico border.

Key findings:

• The asylum ban and accompanying restrictions are ineffective and counterproductive to effective migration policy and refugee protection. People seeking asylum, including the over 500 interviewed over the last year by Human Rights First across the U.S.-Mexico border, were overwhelmingly not aware of the ban and its consequences. Even when asylum seekers do learn of it, their decisions are primarily driven by urgent needs for safety and protection. Rather than deterring people from irregularly crossing the southwest border or funneling people to ports of entry, the ban and accompanying restrictions spur irregular crossings and punish people who cross with penalties that violate the Refugee Convention.
• Wait times for the U.S. port of entry appointments referenced in the rule have risen from two to four months to up to seven months, while daily CBP One appointments have stagnated at 1450 since June 2023. Like other forms of metering, long wait times for CBP One appointments spur crossings outside of official ports of entry, making them counterproductive to effective migration policy and detrimental to the safety of people seeking asylum.
• People seeking asylum waiting in Mexico for CBP One appointments are targeted for kidnappings, torture, rape, and brutal violence. Human Rights First has tracked reports of over 2,500 survivors of kidnappings and other violent attacks on asylum seekers and migrants stranded in Mexico, including those waiting to secure CBP One appointments, since the asylum ban was initiated in 2023. Targeted attacks against migrants and asylum seekers have sharply escalated by 70% in some areas. Increasing numbers of people are missing their CBP One appointments because they are being kidnapped in Mexico, further trapping them in danger.
• People waiting for CBP One appointments, and some people with appointments, are prevented from seeking asylum at U.S. ports of entry by the Mexican government’s increased targeting of migrants for arrest, detention, forced transfers to southern Mexico, and potential return to persecution.
• Black, Indigenous, LGBTQI+, HIV+, women, children, and other vulnerable people seeking asylum face particular barriers and harms under the asylum ban. The asylum ban and related restrictions discriminate against and deny equal access to asylum to people who do not speak English, Spanish, or Haitian Creole, including most African, Indigenous, and other people seeking asylum from outside of the Americas, in addition to others who cannot use the CBP One app due to access barriers.
• The asylum ban leads to the return of refugees to persecution and torture, amounting to refoulement. People subject to the ban’s higher screening standard in expedited removal credible fear interviews are three times more likely to be ordered deported to their countries of feared persecution or to Mexico, where they face dangers and risk return (chain refoulement), compared to those who are not subject to the ban. The result has been that the United States has ordered the deportation of people with strong and obvious needs for refugee protection.
• People deported or ordered deported under the asylum ban include: a transgender woman from Venezuela fleeing anti-LGBTQI+ abuses, a victim of political persecution from Senegal, an illiterate man from Nicaragua fearing torture by Nicaraguan authorities, a Chinese pro-democracy dissident, and a victim of religious persecution from Egypt.
• People who are unable to secure, or cannot safely wait in Mexico for, CBP One appointments face barriers to processing at U.S. ports of entry and risk the asylum ban’s punishment if they cross at or between ports of entry without appointments. The barriers that impede their access to U.S. ports of entry include CBP limits on processing people without appointments (otherwise known as “metering”), and Mexican authorities’ actions to block asylum seekers’ access to ports of entry; they turn away people facing urgent medical needs or threats to their lives and safety in Mexico.
• The use of the asylum ban in expedited removal and the relaunch of the Trump-era practice of conducting Credible Fear Interviews when asylum seekers are in CBP custody impedes access to counsel and prolongs detention of asylum seekers in dangerous and subpar conditions in border holding cells, which violates CBP guidelines. Despite the Biden administration’s attempts to support access to legal consultations, the vast majority of those in custody do not have meaningful access to legal assistance or representation before or during their interviews. The systemic due process issues that exist in expedited removal are amplified when people seeking asylum are in CBP custody. These issues, in addition to those inherent in the asylum ban, lead people with refugee claims to be returned to harm.

The asylum ban is a new iteration of transit and entry bans promulgated by the Trump administration that were repeatedly enjoined or struck down by federal courts as they violated U.S. law. A federal district court ruled in July 2023 that the Biden administration’s asylum ban is unlawful, but it remains in place while the administration appeals this decision. The asylum ban has generated strong and diverse opposition from faith groups, Holocaust survivors, major unions, civil rights organizations, members of the president’s political party, and other key Biden administration allies. As a candidate, President Biden promised to end such policies.

Recommendations:

Instead of banning and blocking people seeking asylum, the Biden administration and Congress should double down on humane and effective strategies that the administration has already initiated or announced, including to quickly ramp up regional refugee resettlement plans, strengthen parole initiatives, increase humanitarian and other aid to address protection gaps in the Americas, maximize access to ports of entry, properly staff asylum and immigration court adjudications, improve and restart use of the Biden administration’s new asylum processing rule to help adjudicate a greater number of asylum cases more efficiently and take other key steps previously recommended by Human Rights First.

The Biden administration should rescind its asylum ban and end accompanying policies that unjustly punish and turn away people seeking asylum. Instead, the administration should take effective and humane steps to address challenges at the border as Human Rights First has long recommended and outlines in this report.

The Administration should:

• Maximize access to asylum at U.S. ports of entry: conduct processing at more ports of entry, ensure access at ports of entry for people who do not have CBP One appointments, and increase the number of CBP One appointments offered;
• Implement a whole of government approach to reception efforts: create a centralized White House office to coordinate between the federal government, states, cities, and the non-government organizations that provide essential humanitarian services, and work with Congress to secure robust and sustainable appropriations for this vital work;
• Ensure access to work authorization and prompt processing of work permit applications necessary for both migrants and receiving communities;
• Strengthen the asylum adjudication system to ensure fair and timely outcomes;
• Expand and strengthen the Biden administration’s parole and regional refugee resettlement programs, as well as diplomacy and support for protection in the Americas;
• Press the Government of Mexico to ensure people seeking U.S. asylum have access to U.S. ports of entry and to take steps to protect the safety and human rights of migrants and asylum seekers, including those waiting to seek U.S. asylum.

Read the full report below.