President Biden’s Proposed Asylum Ban
5 Things to Know

1| Almost all individuals seeking safety would be banned from applying for relief

Under U.S. immigration law and international treaty, any individual who is present in the U.S., regardless of their immigration status or how they entered, can claim a “credible fear” of persecution if they were to be sent back to their country of origin, and is subsequently eligible to apply for asylum. While they go through this longstanding legal process, they are protected against removal and are allowed to work. If they win their case, they can become a U.S. permanent resident.

If the Biden Administration’s proposed asylum ban is implemented, however, the number of individuals who would actually be allowed to apply for asylum would drop dramatically; large numbers of people would 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.

The new policy would impose 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 would be presumed to be ineligible for relief from the start of their process of applying, and would have to provide evidence to overcome that presumption, which would be possible only in extremely narrow circumstances.² This presumption would apply to any individuals who traveled through another country before reaching the United States, unless they followed complicated procedures or met certain exceptions.

The proposed asylum ban describes only four narrow categories of people seeking asylum who would not be subject to the presumption of ineligibility: parole applicants³ 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.⁴

Most individuals who are apprehended in the U.S. and subsequently denied the opportunity to apply for asylum⁵ under the new policy would be deported and subjected to consequences, including bars on re-entering the U.S. in the future, even through other legal channels.

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. In reality, this 24-month period is likely to persist for much longer.

2| Banning people from seeking asylum is a cruel and misguided response to a problem made worse by decades of Congressional inaction and failures to build legal migration pathways

The Biden Administration argues that new limitations on the asylum process would encourage individuals to utilize the few remaining legal immigration channels rather than traveling to the southern border without authorization. However, the new proposed ban would effectively close off all but the most limited, restrictive ways in which people could access safety via legal pathways, which would do nothing to reduce or streamline the chaos of the existing system, and would, in fact, greatly exacerbate it.

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.⁶ 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.⁷

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 is the only legal avenue available for them to seek relief in the U.S., and closing it off would leave them with absolutely 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.

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.

3| Restricting access to the asylum system would fuel more chaos at the border and increase unauthorized border crossings

If implemented, the asylum ban would 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. This is an obvious outcome for individuals desperately seeking relief, who can access the asylum process only by being apprehended. 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 ban, the share of migrant border encounters in between ports of entry increased substantially.

Eliminating existing avenues for individuals to apply for asylum would not solve challenges at the border, and is more likely to create more chaos, confusion, and suffering. In fact, the asylum ban may replicate the impacts of MPP, leaving many individuals and families trapped in dangerous and inhumane conditions. That is because the new asylum 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 is inaccessible to all but a small fraction of its ostensibly intended audience.

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.”

4| Strengthening legal avenues for family reunification, employment, and humanitarian relief would be a more fair, humane, and orderly approach

With this new proposed asylum 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 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.

Rather than restricting access to asylum, President Biden should stand by his commitments to build a more fair, humane, and effective immigration system. This could include continuing to exercise executive authority to create and expand legal pathways to come and contribute to the United States, building on the successes already achieved.

Additionally, 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.

5| Your voice can help push back on the asylum ban

For now, the new policy is just a proposal. As part of the rulemaking process, the administration is required to receive and respond to comments from the public on the rule. Members of the public have until March 27, 2023, to submit a comment.

To submit your comment on the asylum ban, visit NoAsylumBan.us.

Some time after the public comment period closes, the Biden Administration would likely publish a final rule to respond to comments and begin implementing the policy. However, the administration notes in the NPRM that the policy could be implemented much sooner through an emergency rulemaking process (if the Title 42 policy is lifted, for example).

The proposed asylum ban is clearly a misstep, but it also has the potential to be even more devastating if weaponized by a future administration seeking to restrict and reduce legal immigration even further. Note that the program’s scheduled expiration date would extend beyond President Biden’s first term. The broad authority and discretion outlined in this rule would make it very easy for a hostile administration to limit access to asylum even further.

If implemented, the asylum ban would be a terrible misstep that would hurt countless individuals and families, leaving people seeking asylum with virtually no legal pathways to reach the U.S. safely, and forcing them to make dangerous choices—including crossing between ports of entry—that would only bring about more tragedy and chaos. Once in place, the proposed asylum ban would almost certainly continue for decades to come.