Fact Sheet
Published on January 17, 2023
On January 5, 2023, the Biden administration announced new policies relating to the border and asylum, including a plan to issue a Notice of Proposed Rulemaking (NPRM) that would ban asylum for many seeking safety — a policy that is straight from the Trump playbook and would advance the Trump administration agenda of turning away and banning refugees from asylum.
The Department of Homeland Security (DHS) and the Department of Justice (DOJ) have indicated that they intend to issue a proposed rule that would create a presumption of asylum ineligibility for individuals who did not apply for protection in a country they traveled through on their way to request safety in the United States and did not use or “circumvent[ed] available, established pathways to lawful migration,” subject to certain exceptions. The purpose of the potential rule, as described by President Biden and DHS, is to impose “consequences” on people seeking asylum who do not use these pathways.
Such a rule would violate U.S. and international law. U.S. law provides that people seeking refugee protection may apply for asylum regardless of manner of entry. Under the Refugee Convention and its Protocol, “States may not condition access to asylum procedures on regular entry,” as the U.N. Refugee Agency (UNHCR) has confirmed. Article 31 of the Refugee Convention prohibits states from imposing improper penalties for irregular entry. Following the Biden administration’s January 5th announcement, the U.N. High Commissioner for Human Rights warned that the plans risk undermining international human rights and refugee law, reminding the U.S. that the right to seek asylum is a human right no matter a person’s origin, immigration status or how they arrived at a border.
This potential rule would repackage the Trump administration’s “asylum entry ban” and “asylum transit ban,” which similarly made people ineligible for asylum if they entered between ports of entry or did not apply for protection in a country they transited through. While Biden administration officials have tried to distinguish their plans from Trump policy, the bottom line is that — regardless of tinkering or slight differences in description — the policy, if implemented, will ban and/or deny refugees asylum based on similar factors. Labeling its own planned iteration of this restriction on asylum as a “rebuttable presumption” does not change the reality — and harmful impact — that, like the Trump bans, it will ban refugees from asylum by making them ineligible based on manner of entry and transit through third countries.
The Trump-era entry and transit bans were repeatedly struck down by federal courts as unlawful. Reinstating a similar policy would, like the Trump transit ban, result in the return of refugees to harm in the countries they fled, fuel prolonged detention in the United States, cause family separations and deprive refugees barred from asylum by the ban of a path to citizenship and stability when they are left only with the limited protection of withholding of removal. A resurrected asylum ban will also add to inefficiencies and delays in asylum determinations, as adjudications of this additional requirement will require additional evidentiary submissions, as well as additional factual and legal assessments.
The Biden administration should adjust course immediately, abandon its misguided plan to initiate rulemaking to ban and deny asylum to refugees, and end its deeply damaging attempts to misuse safe pathways to refuse refugees access to asylum. Proceeding with plans to issue a proposed rule to create an asylum ban would violate President Biden’s campaign promise to end policies that impose restrictions on asylum for individuals who transit through other countries to reach safety in the United States — and play into the hands of politicians and perpetrators of anti-immigrant fearmongering who are working to force the continuation or enactment into law of Trump administration policies. It would also advance the agenda of anti-immigrant groups, including the Federation for American Immigration Reform, which was designated a hate group by the Southern Poverty Law Center and has praised the Biden administration’s plans to impose an asylum ban as a “good first step.” If the Biden administration were to issue a proposed asylum ban, the step would deepen the stain already inflicted on the administration’s record by its decisions to expand use of Trump policy – including its October 2022 and January 2023 expansions of the use of the Title 42 policy to additional nationalities.
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