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Biden Asylum Ban Will Endanger Refugees

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Feb 21, 2023

This week the Biden administration will issue a proposed rule imposing a sweeping new ban on asylum for most people seeking safety at the U.S. southern border. The rule will render ineligible for asylum those who pass through any third country en route to the United States and do not apply for protection there first. Previous iterations of such a ban under Trump were repeatedly struck down by the courts. Though the Biden administration has attempted to distinguish its ban from the previous administration’s, any rule that systematically blocks refugees from exercising their right to seek asylum will not pass legal muster. The Center for Gender & Refugee Studies (CGRS) urges the administration to rescind the rule.

“The Biden administration’s new ban would outsource our asylum obligations to countries that are unsafe for refugees and wholly unequipped to receive the vulnerable people our government turns away,” Professor Karen Musalo, CGRS Director, said today. “The new rule makes the stunning assertion that, because common countries of transit such as Mexico and Guatemala have ‘stepped up’ to accommodate migrants, it is reasonable for the United States to expect that people seek asylum there instead. As I explained in Just Security earlier this month, most countries of transit are as dangerous as those asylum seekers are fleeing, and are notoriously unsafe for Black, Indigenous, and LGBTQ+ people in particular.”

“Human rights investigators have documented thousands of violent attacks on people pushed back to Mexico under the Biden administration’s Title 42 expulsion policy,” Musalo added. “People fleeing violence in the northern countries of Central America are frequently tracked down in neighboring countries by their persecutors, who take advantage of porous borders and transnational crime networks that operate in the region. Moreover, countries of transit have far fewer resources than the United States and absolutely do not have the ability to welcome additional asylum seekers. Requiring people fleeing deadly violence to apply for legal status in countries with overwhelmed asylum systems, where they will not be protected from harm, is not only cruel, but also violates U.S. law.”

In the lead-up to today’s announcement, the White House has repeatedly insisted its rule will be distinct from Trump-era asylum bans. The administration now points to exceptions to the ban available for those who are able to schedule an appointment using its CBP One app, and for those who can prove “exceptionally compelling circumstances,” such as an acute medical emergency or imminent threat to their life. Requiring asylum seekers to book an appointment to request protection in advance violates our laws and treaty obligations. People fleeing life-threatening persecution typically do not have the luxury of waiting for an appointment to open up. Moreover, the CBP One app is available in only three languages and has been riddled with racial bias and functionality issues since its launch. Members of President Biden’s own party have raised serious privacy and equity concerns, urging the administration to shelve the app and never use it as a prerequisite for seeking asylum.

Asylum seekers will also be expected to make the case that they should be exempted from the ban during expedited screenings, while detained in jail-like holding cells without access to legal help. Many who qualify for an exception will inevitably slip through the cracks and be ordered deported to countries where their lives are at risk.

“People fleeing persecution have a legal and moral right to seek asylum at our border, no matter how they get here,” Kate Jastram, CGRS Director of Policy and Advocacy, said today. “This rule is an affront to our laws, treaty obligations, and the United States’ longstanding tradition of welcoming refugees. It is utterly shameful that, once again, the Biden administration is reverting to the Trump playbook and putting political expediency before human lives. This rule would return people to dangerous conditions and inevitably lead to family separation. We are prepared to fight vigorously to ensure the rule cannot take effect.”

Despite its far-reaching, life-or-death implications for people seeking asylum, the proposed rule will have a truncated 30-day notice and comment period. The Biden administration has indicated it intends to rush the rule into effect ahead of May 11, the date that its Title 42 expulsion policy will lift, along with the COVID-19 public health emergency declaration. This will not leave the administration sufficient time to seriously consider public comments, as required under the ​​Administrative Procedure Act.

Prior to today’s announcement, faith groups, civil and human rights organizations, and 77 Democratic lawmakers urged the president to abandon the proposed rule. Today leading senators and members of Congress, including the Congressional Hispanic Caucus, denounced the proposed rule, imploring the administration to reverse course.