Las Americas Immigrant Advocacy Center v. DHS

The Biden administration took office promising to restore a humane asylum system at the U.S.-Mexico border and turn the page on the Trump administration’s cruel and deadly policies. The administration pledged to uphold our nation’s obligations under the Refugee Act, which governs the U.S. asylum system and sets out protections for people fleeing persecution and danger. The law expressly provides that anyone who arrives in the United States may apply for asylum, regardless of how they entered the country.

On June 4, 2024, President Biden issued a proclamation, along with an accompanying interim final rule issued by the Department of Homeland Security and the Department of Justice, that directly violated the law.

The proclamation and rule purported to “secure the border” by suspending access to the asylum process for people seeking safety. Subject to only a few narrow exceptions, the rule shut down access to asylum for almost everyone except those who could secure a scarce appointment via a smartphone app to present themselves at a port of entry. This rule left countless asylum seekers trapped in danger in northern Mexico, with no way to access protection. Others, who had relied on the United States as a place of safety, were quickly deported back to danger.

The rule went into effect based on numbers of encounters at the southern border, without the opportunity for notice and comment, in violation of the requirements of the Administrative Procedure Act.

The asylum shutdown rule recycled several elements of the administration’s prior “Circumvention of Lawful Pathways” rule, dubbed the “asylum ban” by advocates, which was vacated as unlawful by a federal judge. The rule also repackaged the Trump-era “entry” ban, which denied asylum to anyone who did not seek protection at an official port of entry, and was struck down by the courts as unlawful.

In addition to imposing a bar to asylum, the rule eviscerated protections for immigrants who may still be eligible for lesser forms of relief. Under procedures that have governed the asylum system for nearly 30 years, before the government can deport someone through the expedited removal system, they must screen them to determine whether they have a “credible fear” of returning to their country of origin. The asylum shutdown rule did away with this protection and instead imposed a “shout test,” requiring people to proactively express their fear and convince an immigration officer to refer them for a credible fear screening. In practice, the shout test has deprived people fleeing danger of any semblance of a fair process. For those who pass the shout test, the rule imposed a higher—and undefined—standard of proof for people to pass the screening interview and even have their claims considered.

Other harmful policy changes compounded the devastating impact of this rule. People in immigration detention who were referred for a credible fear interview had less less time—just four hours— to prepare and attempt to consult with counsel. These changes made it nearly impossible for people to access legal help. They also placed a tremendous burden on the legal services providers at the border attempting to provide legal orientation and representation to people seeking protection.

In September 2024, the Biden administration promulgated a final rule that took effect on October 1, 2024. The rule placed an even more restrictive threshold of border encounters before the shutdown of asylum would be lifted.

The application of the rule in credible fear interviews and the related policy changes made a mockery of Congress’ intent in enacting the laws that govern the asylum process. We argued that Biden’s asylum shutdown and the related policy changes violate our asylum laws and result in the unlawful return of people to countries where their lives are in danger.

In May 2025, the district court agreed that the rule violated the asylum statute and largely vacated the rule. The government has appealed that decision to the Court of Appeals for the D.C. Circuit, and that appeal is pending.