The Biden-Harris Administration’s 'Asylum Ban': A Strict New Policy Affecting Those Seeking Refuge in the United States
By Avrie Davisson
In the summer of 2023, I had the pleasure of interning with the Denver Justice and Peace Committee. The Denver Justice and Peace Committee is a local nonprofit organization that focuses on human rights and social justice issues pertaining to Latin America and Latin American migrants in the United States. The goal of my internship was to complete a research project exploring new immigration policies set forth in 2023 after the end of Title 42.
Title 42 was part of the Public Health Service Act of 1944 and officially unrelated to immigration policy. In March of 2020, however, President Donald Trump used the Federal COVID-19 Public Health Emergency (PHE) Declaration to authorize the use of Title 42 at U.S. borders. The Federal COVID-19 PHE Declaration, issued in January of 2020, affirmed that COVID-19 had developed into a threat to the population in the United States. The use of Title 42 resulting from this declaration immediately expelled migrants who had illegally cross the border into the United States – this under the premise of preventing the spread of the COVID-19 virus. I shifted my project from a general exploration of new immigration policies to focus on one new policy by the Biden-Harris administration, known as the Circumvention of Lawful Pathways rule. Often nicknamed the “Asylum Ban,” the policy imposes harsh restrictions on Latin-American migrants wishing to seek asylum in the United States. By declaring that it is intended to address “noncitizens who cross the southwest land border or adjacent coastal borders,” the policy disproportionately impacts Latin-American migrants.
It is important to give a brief summary of Title 42. Its inclusion in the Federal COVID-19 Public Health Emergency (PHE) Declaration resulted in the immediate expulsion of over 2 million migrants who crossed the border illegally – including those seeking asylum. The use of Title 42 at the U.S.-Mexico border was extremely problematic, as it undermined an individual’s right to seek asylum and overall disregarded the vulnerability of migrants at the border. Public health experts say evidence available from the Centers for Disease Control and Prevention failed to support the use of Title 42 at the border as an effective way to prevent the spread of COVID-19. Despite President Joe Biden's pledge to put an end to some of the Trump administration’s immigrant policies during his 2020 election campaign, Title 42 was kept in place until May of 2023, when the Federal COVID-19 PHE Declaration officially ended.
In response to the end of Title 42 border restrictions and following an anticipated increase in migrants arriving at the U.S.-Mexico border, the Biden-Harris administration announced new “border enforcement actions” in January of 2023. They included an intent to increase the use of expedited removal and the introduction of the Customs and Border Protection (CBP) One Mobile Application. Although not initially included in the Biden-Harris administration’s border enforcement actions, the Asylum Ban was put into effect as soon as Title 42 border restrictions ended in May of 2023.
The Asylum Ban outlines three requirements a migrant must satisfy to be considered eligible for asylum. First, the asylum seeker must have already tried to enter the United States through legal means. Second, they must present themselves at an official port of entry at a pre-scheduled time using the CBP One app. Finally, they must have attempted to apply for, and been denied, asylum in a third country through which they have transited. Unless they meet these three criteria, migrants who unlawfully enter the United States with the intent to declare asylum are automatically presumed ineligible for asylum. There are extremely limited exceptions to this policy outlined by the Department of Homeland Security, and the burden of proving those exceptions rests on the migrant.
The main problem with the requirements listed by the Asylum Ban is that they disregard the United States’ commitment to the principle of non-refoulement as outlined in the 1951 Refugee Convention and 1967 Protocol. According to article 33 of the 1951 Convention Relating to the Status of Refugees, the United States cannot return a refugee “in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” Under the Biden-Harris administration’s Asylum Ban, the U.S. can declare someone ineligible for asylum and deport them if they fail to satisfy certain conditions – even if the person meets the legal definition of a “refugee.” The assumption that a refugee is ineligible for asylum because of a failure to meet one of the three conditions outlined in the Asylum Ban violates the commitment to non-refoulement the U.S. agreed to over 50 years ago.
Keeping in mind the definition of “refugee”, the requirement for asylum-seekers to present at a port of entry at a pre-scheduled time through the CBP One Mobile Application does not have a legal basis. By adding another barrier to asylum, this requirement disregards migrants’ rights as declared by the Refugee Act of 1980 and the 1951 Convention and Protocol Relating to the Status of Refugees. Furthermore, Article 31 of the 1951 Convention specifically states that a country “shall not impose penalties, on account of [a refugee’s] illegal entry or presence.” The Asylum Ban’s presumption that those who cross the southwest border unlawfully are ineligible for asylum is in violation of domestic law and policies the U.S. has agreed to on an international level.
Finally, the restrictions on asylum created by the Biden-Harris administration put migrants at risk of physical and psychological harm. The Asylum Ban requires that migrants must have first applied for and been denied protection in a third country through which they transited. This “third country” is presumably Mexico, which evidence suggests is not a safe place for migrants seeking asylum. Certain gangs may target migrants because they are in a vulnerable position. The most common crimes committed against migrants in Mexico include robbery, kidnapping, human trafficking, extortion and blackmail, and sexual assault. Since the Asylum Ban was implemented, Human Rights First has reported a 50 percent increase in these types of crimes across the northern parts of Mexico. Moreover, asylum seekers who are relegated to expedited removal under this new policy are further subjected to a five-year re-entry ban for having crossed illegally. Therefore, these policies expose asylum seekers to the very forms of violence they were fleeing in the first place. Returned asylum seekers may face an increased risk of violence for having attempted to leave their country of origin. Some have even been killed upon their return.
What has been done to address the legal and human costs of the Asylum Ban? In late July of 2023, a California judge blocked the ban for being too similar to another blocked policy enacted by the Trump administration in 2019. Like the current Asylum Ban, the Trump-era policy denied asylum to anyone who transited through a third country to reach the U.S. without first seeking protection in that country. The Biden-Harris administration was quick to appeal the judge’s decision, and the 9th U.S. Circuit Court of Appeals ruled that the policy could remain in effect while the appeal is heard. A hearing was set for late September of 2023; I have not found any updates on the appeal as of October of 2023.
At the end of my internship with the Denver Justice and Peace Committee (DJPC) in late August, I hosted a forum alongside Rebeca Zúniga-Hamlin, the director of DJPC, and Dr. Lynn Holland, who is a board member for DJPC, an affiliate for the DU Center for Immigration Policy & Research (CIPR), and a teaching professor at the University of Denver’s Josef Korbel School of International Studies. The focus of this forum was to inform the public of the Asylum Ban and discuss ways to fight against the policy. One of the best things we can do is contact our state representatives and let them know we do not support this policy. We can ask them to publicly condemn the Asylum Ban and bring more attention to the problems it creates for asylum seekers. In Colorado, you can contact current Senators Michael Bennet (D) and John Hickenlooper (D).
While it was incredibly empowering to work alongside the Denver Justice and Peace Committee, it was disheartening to learn about the ways the U.S. government continues to create obstacles for asylum seekers and their families. This experience further opened my eyes to current immigration practices rarely discussed in mainstream media and news outlets, such as the Asylum Ban. While I am glad I could bring attention to this policy, more research and work is necessary to reform our current immigration system.
Avrie Davisson is a third-year student at the University of Denver studying criminology and psychology with a minor in Spanish. Davisson is passionate about social justice issues, especially regarding criminal justice reform in the United States. Davisson can be contacted by email at avrie.davisson@du.edu.