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Groups Decry Biden Asylum Rule

May 11, 2023 (4 min read)

AILA, May 10, 2023Biden Administration’s Asylum Transit Ban Will Undermine U.S. Humanitarian Law and Harm Vulnerable Asylum Seekers

"The American Immigration Lawyers Association (AILA) renews its opposition to the Biden Administration’s harmful “Circumventing Lawful Pathways” regulation which functionally bans access to asylum for many vulnerable people. AILA President Jeremy McKinney stated: “Given the complex and unprecedented challenges at the southern border, the Biden Administration finds itself walking a tightrope between effective border management and meaningful humanitarian protection. While many of the Administration’s actions, such as opening legal channels to seek safety and reunite with loved ones, strike that balance, this asylum rule is wildly out of bounds. The new regulation will likely deny tens of thousands of people any opportunity to meaningfully seek protection. Our immigration laws—and our values—guarantee the right to seek asylum regardless of how someone enters the country. This departure from our laws and values is unacceptable under any circumstances.” AILA Executive Director Benjamin Johnson added, “Let’s be clear, Congress bears responsibility for withholding the necessary resources to fund effective border management. Current funding levels fall far short of what is needed to properly screen and timely process asylum seekers. Instead of working on actual solutions, Congress can’t get past political bickering and anti-immigrant scapegoating. Lasting reforms can only happen if Congress does its job and passes legislation with smart, workable solutions that not only meet the immediate needs at the southern border but that also harness the long term benefits that legal immigration channels can bring.”

CGRS, May 10, 2023Biden Embraces Asylum Ban, Defying Law and Public Opinion

"Today the Biden administration published the final version of its rule imposing a near-total ban on asylum at the U.S. southern border. The rule was first proposed in late February and met with fierce opposition by the UN Refugee Agency, leading senators and members of Congress, U.S. asylum officers, faith leaders, and tens of thousands of advocates, allies, and community members. Similar regulations introduced by the Trump administration were struck down by the courts as illegal. Biden’s repackaged ban will inevitably result in the wrongful deportation of refugees to countries where they face persecution and torture. “We are deeply disappointed that the Biden administration has chosen to proceed with its asylum ban, in clear violation of U.S. and international law. This policy will deny the right of protection to vulnerable people seeking safety,” said Karen Musalo, Director of the Center for Gender & Refugee Studies (CGRS). “People fleeing persecution have a right to seek asylum, and our laws do not require that they do so in countries of transit, or only enter at ports of entry. This is an abdication of our legal and moral obligations to refugees that puts political expediency before human lives.” Under the new rule, people fleeing persecution will be barred from asylum if they pass through another country on their way to the U.S. border and do not apply for protection there first. This requirement is as absurd as it is illegal. Many of the countries through which people transit are profoundly dangerous for migrants and refugees - particularly Black, Indigenous, and LGBTQ+ people - who are routinely preyed upon and subject to violence and discrimination. Those that take in refugees already do so at a per capita rate far exceeding that of the United States. None have functioning asylum systems with the capacity to welcome those the United States turns away under the ban. The administration’s ban can be circumvented only by scheduling an advance appointment to seek asylum using the government’s CBP One smartphone app. As documented by CGRS and our partners, CBP One is riddled with glitches and fundamentally inaccessible to the most vulnerable refugees. In practice, the app creates a de facto metering system, trapping people in dangerous border cities for weeks (if not months) on end, desperately competing for the chance at an appointment that may never materialize. This makes a mockery of our asylum system, which was designed to protect people fleeing imminent threats to their lives, who cannot safely wait for an appointment to be scheduled, or for an application to be adjudicated in an unsafe third country. The Biden administration has sought to rush the ban into effect ahead of the end of the Title 42 expulsion policy, slated for tomorrow. In doing so, the administration has flouted the procedures designed to ensure meaningful public input on major policy changes. By the end of the rule’s truncated 30-day notice and comment period, the administration had received over 51,000 comments, the overwhelming majority expressing vehement opposition and urging the government to withdraw the rule in its entirety. Under the Administrative Procedure Act, the government was required to carefully consider each comment before moving forward with the rule. With a public response of such great magnitude, that process should have taken months. Yet mere weeks later, the government is poised to implement the rule with negligible changes. “President Biden has had over two years to prepare for the end of Title 42 and the resumption of normal asylum processing at the southern border,” said Melissa Crow, Director of Litigation at CGRS. “For over two years, groups serving asylum seekers have implored the government to work with them to establish a safe and orderly process that welcomes people seeking asylum with dignity. Instead, the Biden administration has doubled down hard on failed policies that violate our laws and endanger people seeking safety. CGRS and our partners are prepared to take the administration to court to challenge the blatantly illegal asylum ban announced today. This is not over.” CGRS’s comment on the proposed rule can be read here."