The policy brief below was published before the judge’s ruling was issued.
On May 16, 2023, the Biden Administration published a final regulatory rule titled “Circumvention of Legal Pathways.”
This policy imposes new, large-scale restrictions on who can apply for asylum, effectively barring most individuals arriving at the U.S. southern border from exercising their legal right to seek relief. This policy violates current immigration law and will not improve border security. Instead, it will drive more chaos and tragedy, creating unsafe conditions for both people seeking asylum and residents of border communities.
Here’s what you need to know about the Biden Administration’s asylum and transit ban.
“Under the new policy, people seeking asylum will be presumed to be ineligible for relief from the start, a stark departure from decades of U.S. asylum policy."
Under the new asylum and transit ban, the number of individuals who will actually be allowed to apply for asylum is expected to drop substantially; large numbers of people will be preemptively disqualified from applying for relief, even though they have long had the legal right to seek asylum under U.S. and international law.
Prior to the implementation of this ban, U.S. immigration law allowed an individual to claim a “credible fear” of persecution if they were sent back to their country of origin, regardless of their immigration status or how they entered the U.S. While they go through this long-standing legal process, they are protected against removal and are allowed to work. If they win their case, they can resettle permanently in the U.S. and eventually become a citizen.
The new policy, however, imposes a “rebuttable presumption of ineligibility for asylum”—a stark departure from decades of U.S. asylum policy since World War II—meaning that people seeking asylum are presumed to be ineligible for relief from the start of their process of applying, and have to provide evidence to overcome that presumption, which is possible only in extremely narrow circumstances.1 This presumption applies to any individuals who traveled through another country before reaching the United States, unless they followed complicated procedures or met certain exceptions.
The asylum and transit ban describes only four narrow categories of people who are not subject to the presumption of ineligibility: parole applicants2 with DHS-authorized travel; individuals who applied for and were denied asylum in a country through which they traveled on their way to the U.S.; unaccompanied children; and individuals who are able to use the CBPOne mobile app to make an appointment to present themselves at a point of entry at a specified date and time.3
Most individuals who are apprehended in the U.S. and subsequently denied the opportunity to apply for asylum under the new policy will be rapidly deported under expedited removal, with no court hearing, and subjected to consequences, including bars on re-entering the U.S. in the future, even through other legal channels.4
The Biden Administration has proposed to keep the policy in effect for at least 24 months, with a required review before the end of that period to determine if the policy should be continued, amended, or sunsetted, making it possible that the policy could remain in effect for decades to come.
"Unfortunately, for many individuals living in the Western Hemisphere, asylum has been the only legal avenue available for them to seek relief in the U.S. for a long time, and closing it off leaves them with virtually nowhere else to turn."
The increased number of individuals arriving at the southern border reflects how migration trends have changed significantly over the past decade, with an increasing number of people exercising their right to apply for asylum. In 2012, roughly 3,500 defensive asylum claims were filed each month.5 In 2022, an average of 5,000 asylum claims were filed weekly. The total number of asylum claims filed in 2022 was more than 256,000, a fivefold increase from just a decade earlier.6
The increase in asylum filings reflects the fact that conditions in many countries, including many in the Americas and the broader Western Hemisphere, have worsened dramatically over the last decade, forcing people to flee their homes and to seek refuge in other nearby countries, including the U.S. Economic strife, political instability, crime and violence, security threats, natural disasters—all these “push factors” have contributed to significant increases in the number of people seeking safety in the U.S. from other countries.
Unfortunately, for many individuals living in the Western Hemisphere, asylum has been the only legal avenue available for them to seek relief in the U.S. for a long time, and closing it off leaves them with virtually nowhere else to turn. Even if they qualify for existing channels for family reunification or employment, these pathways are few and limited, and have become severely restricted by backlogs over the past decade (the Biden Administration has announced some important steps to expand access to legal avenues and provide safe authorized travel to the U.S.) These new legal pathways are restricted to people from certain countries and asylum remains the only option for the majority of people seeking protection in the U.S.
Ultimately, the responsibility falls on Congress to create a humane, orderly, and functional system to deal with the reality of people who are forced to flee their home countries to seek safety elsewhere. However, Congress has failed to meaningfully update the immigration system for nearly 40 years.
“Eliminating existing avenues for individuals to apply for asylum will not solve challenges at the border, and is more likely to create more chaos, confusion, and suffering.”
The asylum and transit ban will likely result in a significant increase in the number of individuals seeking to enter the United States in between ports of entry, without authorization, and with the assistance of smugglers, a dangerous outcome that will only result in more tragic loss of life and chaos at the border. Like Title 42, the asylum and transit ban will force people to traverse more dangerous routes into the United States, increasing the possibility that they will face severe harm on their journey. Because unaccompanied children are not subject to the new policy, families may opt to send very young children to cross the border alone.
When the Trump Administration implemented its deterrence-only policies, including “zero tolerance,” the Migrant Protection Protocols (MPP, or “Remain in Mexico”), and the Title 42 public health order, the share of migrant border encounters in between ports of entry increased substantially.
Eliminating existing avenues for individuals to apply for asylum will not solve challenges at the border, and is more likely to create more chaos, confusion, and suffering. In fact, the asylum and transit ban may replicate the impacts of MPP, leaving many individuals and families trapped in dangerous and inhumane conditions. That is because the new asylum and transit ban effectively recreates the MPP policy of forcing individuals to wait in Mexico until a scheduled appointment time; the only significant change is replacing pen-and-paper lists with a mobile app that has been inaccessible to all but a small fraction of its ostensibly intended audience so far.
Then-candidate Biden forcefully criticized this same policy approach while running against then-President Trump in 2020, proclaiming, “You come to the United States and you make your case. That’s how you seek asylum, based on the following premise, why I deserve it under American law. They’re sitting in squalor on the other side of the river.”
“Rather than restricting access to asylum, President Biden should work with bipartisan leaders in Congress to address bottlenecks in the asylum process and relieve burdens on the broader immigration system.”
With this new asylum and transit ban, the Biden Administration very unfortunately appears to be embracing and continuing the Trump Administration’s ineffective and harmful policies, which focused on deterrence and disqualifying individuals from ever applying for asylum in the first place. The clear outcome is to prevent people from accessing their lawful right to apply for asylum.
The Biden Administration points to other recent DHS programs, such as Uniting for Ukraine and the parole process for individuals from Cuba, Haiti, Nicaragua, or Venezuela, as examples of how these policies can reduce the number of individuals apprehended at the border. However, those programs are critically distinct from the proposed asylum and transit ban in that they actually establish legal pathways by allowing individuals with sponsors to secure authorized travel to the U.S., where they are paroled in and granted work authorization.
By contrast, the asylum ban does not expand access to new or alternative legal processes; it only restricts existing pathways by barring people from applying for asylum. And even though the parole programs have been effective, they are not a substitute for a functioning asylum system; the programs are relatively small, restricted to specific countries, face significant legal challenges, and in general, have application requirements that most asylum-seekers do not meet.
The Biden Administration has announced additional measures to expand access to legal avenues, including significant increases in refugee admissions from Latin America and the Caribbean, creating regional processing centers for in-country processing, and establishing family reunification parole pathways for individuals waiting in family-based green card backlogs. These are good steps. But they cannot negate or undo the tremendous harm that will be done by the misguided asylum and transit ban.
FWD.us has published a framework for how the Biden Administration, future administrations, and Congress can manage forced migration and protect access to relief and safety by building new legal pathways. Research and empirical evidence have consistently shown that expanding legal avenues reduces irregular migration and significantly benefits the U.S. economy, and that deterrence-only policies like this asylum and transit ban lead to increases in irregular migration and create disastrous, even deadly, outcomes.
Rather than restricting access, the Biden Administration should work with bipartisan leaders in Congress to address bottlenecks in the asylum process and relieve burdens on the broader immigration system, including providing desperately needed funding, speeding up screening, eliminating immigration court backlogs, and improving conditions and resources for individuals navigating the asylum process.