23 FEB 2023

President Biden's Asylum Ban Will Create Chaos At The Border

Yesterday, the Biden administration formally announced their proposal to institute an asylum ban. The proposal, commonly called a “transit ban,” is a Trump-era policy that will severely curtail the rights of individuals and families fleeing persecution to seek asylum at our southern border. The likeliest outcome of this rule: further chaos at the border.

While receiving praise from former Trump official Chad Wolf, the administration’s announcement has been criticized by a growing number of immigration experts and members of Congress, including Congresswoman Nanette Barragán, chair of the Congressional Hispanic Caucus and Senators Alex Padilla (D-CA), Cory Booker (D-NJ), Ben Ray Lujan (D-NM), and Bob Menendez (D-NJ). They pleaded with the administration to reverse course, denouncing the ban for creating additional barriers and harsh penalties for vulnerable people seeking asylum.

The 153-page proposed rule undermines the immigration plan that President Biden campaigned on, jeopardizes asylum-seekers and will ultimately create chaos and disorder at the border. The following are critical takeaways:

  • This rule is similar to the Trump-era asylum ban and is illegal: Like the Trump administration’s asylum bans that were enjoined by the courts, there is no legal justification for this new rule. There are clear statutory rights to asylum under U.S. and international law. The new rule will disqualify countless people from asylum eligibility who should qualify under U.S. law. Under this new rule, most screenings occur in detention (and likely in CBP custody) where people will not have counsel and they will be unable to meet the new barriers to asylum imposed by the rule.

  • Increases smuggling to the border region: The rule requires that people use the CBP One app to get an appointment at a Port of Entry in order to avoid the new asylum ban. But applicants must be very close to the border to access the app and get a CBP One appointment. This means they will have to use smugglers to get to the border region and then try to get an appointment to cross into the United States.

  • Family separation and blocking legal pathways: The rule’s exceptions for families only cover family members who are traveling WITH the applicant. This leaves out the common scenario where one family member seeks protection first. Applicants cannot petition for a spouse and children later under this rule. Like the Trump transit ban, this asylum ban will leave many refugee families separated.

  • Lack of fairness and due process: The Biden administration is violating U.S. law by erecting new barriers to asylum access. Most of those who don’t enter via parole or the CBP One app will be subject to a presumption that they don’t qualify for asylum. They will have to argue that they meet very narrow exceptions to the rule during their initial fear screening. Most will be detained, unrepresented, and without the linguistic and legal tools to understand this requirement. Under international and domestic law, you don’t need to fly on airplanes or navigate a glitchy app to apply for asylum.

  • Racially disparate impact: The asylum system was created to be uniform four decades ago – across modes of travel and points of entry. Since this rule does not treat asylum seekers equally across modes of entry, it will have a racially disparate impact on asylum seekers from Africa, the Caribbean, and Latin America. This will be quite the opposite of orderly processing. It has already proven to be chaotic and, in particular, harms Black asylum seekers whose photo the app often won’t take or recognize. It will also negatively impact asylum seekers with limited English and tech skills. To date, many LGBTQ asylum seekers and families have also not been able to secure appointments despite their clear vulnerability.

  • This rule is rushed: 30-day comment period is the bare minimum; and the Biden administration already committed to finalizing it before Title 42 ends (expected to be May 11th). Given the huge impact of this rule, this is recklessly fast.

Bottomline: The Biden administration is setting itself up to face a chaotic border. This proposed rule will gut asylum, put lives at risk, and jeopardize President Biden’s vision for a functioning immigration system. Resourcing and reforming asylum is necessary; undermining America’s core commitment to offer asylum and safety to those fleeing persecution and violence is not. 

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The Immigration Hub is a national organization dedicated to advancing fair and just immigration policies through strategic leadership, innovative communications strategies, legislative advocacy and collaborative partnerships.