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Does the Biden Administration Really Want to Ban Asylum?

Posted by Hugo R. Valverde, Managing Attorney, and Anna D. Colby, Attorney Social Media Marketing Manager | Mar 21, 2023 | 0 Comments

Photo by Kristina Volgenau on Unsplash

2016 - 2020 was a rough time for immigration. 

During the Trump Administration many immigration laws were threatened, and a few immigration lawsuits are still being played out in court from that time period, including one about DACA. However, the vast majority of immigration reform advocates were very hopeful when President Biden was elected, expecting Biden to follow through on his political stance and promises to protect DACA, limit deportation, and provide a pathway to citizenship for the undocumented population. 

Instead, the Biden Administration has made a shocking announcement about asylum that almost no one saw coming. After years of criticizing Trump for his immigration policies, President Biden has now proposed nearly the exact asylum ban that Trump tried to enact while in office (a ban which was blocked in court during the Trump Administration).

Biden's proposed asylum ban would prevent any non-Mexican who crosses the U.S. border from a Mexican point of entry from applying for asylum - unless they had previously applied for, and been denied, asylum in another country.

According to the proposed rule, there are three exceptions that would make it possible for someone at the U.S./Mexican border to apply for asylum:

  • They, or a member of their family with whom they are traveling, were provided authorization to travel to the United States pursuant to a DHS [Department of Homeland Security] -approved parole process; 
  • They, or a member of their family with whom they are traveling,  used the CBP One app to schedule a time and place to present at a port of entry, or they presented at a port of entry without using the CBP One app and established that it was not possible to access or use the CBP One app due to a language barrier, illiteracy, significant technical failure, or other ongoing and serious obstacle; or 
  • They, or a member of their family with whom they are traveling,  applied for and were denied asylum in a third country en route to the United States.  

There is also a caveat for “exceptionally compelling circumstances,” if the person can prove that, at the time of their unauthorized entry, they or a member of their family with whom they were traveling: 

  • Faced an acute medical emergency;  
  • Faced an extreme and imminent threat to their life or safety, such as an imminent threat of rape, kidnapping, torture or murder; or 
  • Were a victim of a severe form of trafficking.

Besides an acute medical emergency, the “exceptionally compelling circumstances” could be very challenging to prove for someone who escaped from being trafficked, kidnapped, raped, or tortured, and it is not clear what standard the Biden Administration would use for someone to prove they experienced one of those circumstances.

Customs and Border Patrol (CBP) saw a 37% increase in migrant encounters at the southwest border last year - from 1.64 million people in 2021 to 2.38 million people in 2022, and has not known how to deal well with the increase. 

While immigrant rights organizations have made it very clear to the Biden Administration that they plan to fight the implementation of the asylum ban in court, the Biden Administration has defended itself by stating that the asylum ban would be temporary in nature - an emergency measure to be put in place for 24 months.

Whether that “emergency measure” will actually only last 24 months though is yet to be seen.

If you have questions about applying for a USCIS petition, please reach out to us at (757) 422-8472, or send us a message on our website. You can also schedule an appointment with one of our attorneys by clicking on this link.

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