Yesterday, President Biden issued a proclamation and accompanying federal rule that imposes a severe and arbitrary limit on the number of people permitted to seek asylum at the U.S.-Mexico border between ports of entry while also making the asylum screening process substantially harder to navigate for those fleeing persecution. These changes go into effect today and will result in the deportation of thousands of people seeking safety. The National Immigrant Justice Center (NIJC) denounced these anti-immigrant policies and plans to file a lawsuit in federal court challenging these new restrictions on the right to seek asylum.
This document answers questions about the new proclamation and interim final rule:
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What are the new changes made by the Biden administration?
The new proclamation and rule mimic policies announced by the Trump administration (which issued a parallel proclamation and interim final rule in 2018) blocking asylum access to people who seek protection between ports of entry. When President Trump issued his version of this announcement, it was twice ruled illegal by federal courts, as it contradicts U.S. asylum law’s clear mandate that any person be permitted to seek asylum regardless of their manner of entry.
Through the presidential proclamation and new rule, the Biden administration effectively makes four changes to current asylum processing:
- First, the proclamation and rule impose an arbitrary numerical restriction on asylum access. If the Department of Homeland Security (DHS) encounters an average of more than 2,500 people between ports of entry per day over a seven-day period, the proclamation and rule ban anyone who enters without an appointment scheduled via the CBP One phone app from applying for asylum. This ban will remain in place until 14 days after a determination is made that fewer than an average of 1,500 people have been stopped at the border for seven consecutive days. This arbitrary numerical restriction and ban on asylum are likely to be in place the majority of the time — if not at all times. They will impact the vast majority of individuals and families fleeing harm, exempting only unaccompanied children, trafficking victims, and people facing an acute medical emergency or imminent threat to their life.
- Second, while the new asylum ban is in effect, Customs and Border Protection (CBP) will no longer screen anyone for fear of return. Instead, they will expect individuals and families to “manifest” their fears proactively, even though CBP has a disastrous record of intimidating asylum seekers or failing to record people’s expressed fears. Further, it is well documented that people fleeing persecution inflicted by official or quasi-official actors are highly unlikely to volunteer information about their fear when they encounter armed, uniformed officials of a foreign government. Those few who are deemed to have “manifested” a fear will be able to seek only limited, temporary protection in the United States, and only under a heightened standard.
- Third, the new rule will expand Biden’s existing asylum ban, which severely restricts asylum access for people who entered without pre-approval or advance CBP One appointments. The asylum ban, which is subject to two lawsuits, has already led to plummeting chances for people to present their claims, through complex new requirements that stack the odds against asylum seekers. That ban contained very narrow exceptions for people seeking asylum to explain why they could not get a prior appointment due to health, safety, technological barriers, language access, or literacy. The new rule further narrows this set of exceptions by applying its asylum ban even to those unable to use the discriminatory and glitchy CBP One app.
- Fourth, the new rule increases the screening standard for asylum seekers subject to either the new ban or Biden’s existing asylum ban. In 2022, the Biden administration rescinded similar efforts from Trump to raise those standards. Now, Biden is reversing course, raising the bar even higher than Trump for the few individuals and families who are not turned away.
The new rule adds uncertainties and challenges to an already fraught experience for people arriving at the U.S.-Mexico to seek asylum. These are reviewed in further detail below.
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What does it mean to require asylum seekers to “manifest” their fear?
When Border Patrol officers stop a person trying to enter the United States between ports of entry, they are currently required to ask if that person is afraid to return to their country. That requirement is central to the United States’ obligation under the international Refugee Convention to ensure refugees are not deported back to harm, but the administration is tossing it out the window. Instead, after the 2,500 number of people crossing between ports of entry has been reached, only those individuals who affirmatively “shout out” or otherwise express their fear to a border official will be allowed to pursue screening for minimal protections in the United States. The so-called “shout test” was first designed to turn away Haitian refugees who were intercepted at sea.
Placing the burden on people seeking protection to “manifest” or “shout out” their fear guarantees that people with strong claims to asylum and related relief will nonetheless be deported back to harm. This was the case when the shout test was used against Haitians fleeing for their lives, and it is still true today.
During the Biden administration’s implementation of the Title 42 expulsions policy, this same burden was placed on families who sought protection in the United States. Human rights monitors found that the majority of families who were expelled had clearly expressed to border officials their fear to return but were summarily deported regardless.
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Why is it harmful to heighten fear screening standards?
The rule allows that people who do manifest a fear of return while the new ban is in place will be able to seek very limited protection against deportation in the form of “withholding of removal” or protection under the Convention Against Torture (CAT). These forms of protection are often illusory. They do protect the person from deportation, but are temporary in nature and do not provide a path to lawful status or the ability to reunite with a spouse or children in the United States. To qualify, people will be required to meet a much higher standard of proof than the standard Congress intended for asylum screenings.
Under the legal requirements that Congress enacted more than 25 years ago, asylum seekers who show a “significant possibility” that they will be subject to harm are allowed to proceed to seek asylum. Federal courts have explained that this standard is intentionally low, describing it as a “fraction of [a] ten percent” chance that they will face persecution upon return. Under the new rule, the Biden administration raises that standard to “reasonable probability,” which they define as “somewhat less than more likely than not” or a 51% chance. This will place an exponentially higher burden on asylum seekers, who frequently undergo these screenings while detained, within as little as four hours of entry, in a language and legal system they cannot grasp, and without an attorney.
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Who will be harmed by this policy?
People in need of asylum who are among already marginalized populations will be most gravely harmed. People arriving at the U.S.-Mexico border who will be turned back under this policy are overwhelmingly Black, Brown and Indigenous people seeking asylum. Those with the greatest vulnerabilities such as mental or physical health disabilities and language barriers will be the least likely to effectively articulate their fear to return to border officials under the manifestation requirement, meaning they will be quickly deported without even a screening for protection under the Convention Against Torture.
This policy, like other Biden-era border policies, will disparately impact those with fewer financial resources and means. While NIJC acknowledges the Biden administration’s development of parole programs that allow people from Cuba, Haiti, Nicaragua, and Venezuela to seek alternative routes to safety in the United States, these programs require a passport and resources to purchase travel by air. With every new enforcement-only policy the Biden administration announces at the U.S.-Mexico border, it further harms those who are already forced into desperate circumstances because of a lack of resources and wealth to pursue other options.
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Does this policy comply with U.S. law?
No. Under U.S. law, any person who arrives “whether or not at a designated port of arrival” may apply for asylum. There is no statutory limit on how many people may seek asylum daily, nor is there any geographic restriction for asylum access depending on the site of apprehension at the U.S. border. Congress was unambiguous because there is no logic to denying protection to someone who flees persecution or torture because they happen to cross at the wrong place or time.
The proclamation and rule rely on sections 212(f) and 215(a) of the Immigration and Nationality Act (INA) as authority for these newly announced policies. The president can invoke Section 212(f) to suspend the entry of migrants when he finds their entry would be detrimental to the interests of the United States. However, the INA guarantees access to asylum for anyone physically present in the United States regardless of their manner of entry. The interim final rule issued by the Biden administration itself concedes that the policies announced yesterday cannot supplant the right to seek asylum in the INA. President Trump invoked 212(f) to implement several restrictions on entries to the United States, including for the Muslim Ban, and to suspend unauthorized entries at the southern border. President Biden revoked both of these policies.
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Does this policy comply with international law?
No. Since 1980, the United States has codified its obligations under the Refugee Convention to not return (or “refoul”) people to harm. Just four years ago, a third of the U.S. Senate called on Trump to rescind much of the same policy included in these latest changes from the Biden administration because it was “in clear contravention of the law.”
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How do this announcement and rule echo prior anti-immigrant Trump-era policies?
The imposition of these new dramatic restrictions on asylum access and the proffered legal basis echo key components of policies designed and implemented by Stephen Miller during the Trump administration. These policies were uniformly challenged in federal court.
The first Trump asylum ban: In November 2018, the Trump administration released a presidential proclamation and interim final rule that, like the Biden administration’s policies announced yesterday, prevented anyone who crossed the U.S.-Mexico border between ports of entry from seeking asylum. That “entry ban” was immediately subject to a temporary restraining order by a federal district court in San Francisco in East Bay Sanctuary Covenant v. Trump on the ground that it violates the statutory right to seek asylum. The entry ban was also held substantively unlawful by a district court in Washington, DC, in O.A. v. Trump.
The Muslim and African bans: In 2017, the Trump administration relied on section 212(f) of the Immigration and Nationality Act — the same provision the Biden administration now relies on to turn back asylum seekers — to issue a series of bans on the entry of refugees, people seeking asylum, and others from predominantly Muslim and African countries. The first two bans were invalidated by federal courts. The third was largely upheld by a narrow majority of the Supreme Court in Trump v. Hawaii. Earlier this year, NIJC joined more than 150 international, national, and state/local organizations in warning the Biden administration against emulating Trump-era policies and purported legal justifications to further restrict asylum access at the border.
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Is this the first time President Biden and his administration are replicating Trump policies?
No. The past two years have seen the Biden administration increasingly embrace the Trump agenda when it comes to asylum rights. In February 2023, the Biden administration published a rule currently in effect that dramatically limited asylum for people arriving at the U.S.-Mexico border by restricting asylum access almost exclusively to those granted prior permission to come to the United States via CBP One. This rule borrowed heavily from Trump-era policies, including previous asylum bans that limited asylum eligibility for those who arrived at the U.S. border between ports or having transited through countries other than their countries of origin.
Only a few months later, the administration began forcing people seeking asylum at the southern border through rushed asylum proceedings while in CBP custody. This was a recycled iteration of Trump-era policies that were known as “PACR/HARP” - Prompt Asylum Claim Review (PACR) and Humanitarian Asylum Review Process (HARP); these policies are known to decimate access to asylum while blocking legal access at key points of the asylum process.
These are only a few of the recent announcements that echo policy-making and rhetoric from the Trump era, including the recent pronouncement from the Department of Justice and DHS that they would be increasing the use of immigration prosecutions, a practice with racist roots that also undermines asylum rights while leading to family separation.
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Will this new policy reduce migration at the Southern border?
No. Anti-asylum policies breed desperation and disorder. We know from NIJC’s direct legal services work with immigrant communities that punitive border policies do not deter people who are fleeing violence or seeking to reunite with their families. The U.S. government has employed a “deterrence” framework on the U.S.-Mexico border for approximately 30 years — that is, the use of intentionally cruel and punishing policies in an attempt to reduce migration.
Historic migration data tells us plainly that attempts to deter migration through prosecutions and other punitive measures are ineffective. In 2015, a collaborative of U.S. and Mexico-based researchers conducted the Migrant Border Crossing Study, surveying 1,110 people recently deported to Mexico from five cities along the U.S.-Mexico border. The results, published in the Journal of Migration and Human Security, showed that “deterrence by arrest, incarceration and removal is largely ineffective.” The majority of respondents, in fact, expressed that they intended to return to the United States sometime in the future, despite having themselves endured the “consequence delivery” programs in effect at the border at that time.
Another study conducted in 2018 focused on southwest border migration data as correlated with the Obama administration’s use of family detention and the Trump administration’s family separation policy. Prosecuting people for immigration violations was the premise of the "Zero-Tolerance" program designed to separate families, and both family detention and family separation were presented by U.S. officials as justified deterrence tools. However, a series of models run by scholar Tom Wong found “no statistically significant relationship” between either the 2014 expansion of family detention or the 2017 Zero-Tolerance pilot and the monthly number of U.S. Border Patrol apprehensions.
For more information, please contact Nayna Gupta, associate director of policy at NIJC (ngupta@immigrantjustice.org).