Biden’s Asylum Transit Ban: A Concerning Road Ahead

The Biden administration has issued a proposed administrative rule that will effectively bar most of the migrants who arrive at the U.S.-Mexico border from asylum. Under the rule, a migrant who crossed the U.S.-Mexico border without authorization and who did not seek asylum in a third country that they traveled through on the way to the U.S. will be presumed ineligible for asylum. The new rule violates Biden’s campaign promise of a just asylum system.  It will make accessing asylum virtually impossible for non-Mexican migrants who arrive at the southwest border.  With asylum rules stacked against them, migrants will be sent back to countries where their lives will be in danger. Although there will be pathways to receive an exemption from the rule, these exemptions would leave behind vulnerable migrants who are unable to access them. For instance, our partners who work at the border have expressed concerns about the CBP One app, one of the pathways that provides an exemption from this rule. Currently, the app is the only way to receive a humanitarian exemption from Title 42 and be allowed to cross the border. But our partners find that the app unfairly disadvantages illiterate migrants, migrants who do not speak Spanish, and dark-skinned individuals, for whom its facial recognition technology does not work.   The current regulation violates both U.S. and international law. It conditions asylum on using the pathways the administration has deemed acceptable and legal, without taking into account that those who need asylum are often the least likely to be able to access them. People in danger of violence in their home country are unable to sit around waiting for permission to come to the United States. No one should be denied asylum and sent back to dangerous conditions in their home country because they did not feel safe applying for asylum in a third country, because they could not make an appointment using an app, or because they were unable to pass an initial screening without access to an attorney days after arriving in the United States. Under the new regulation, arbitrary qualifications like these will be the difference between the possibility of safety in the United States and deportation to dangerous conditions without the possibility of seeking asylum in the future.

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The regulation is currently under a 30-day public comment period that will end on March 27. Some of our partners are creating portals to help the public submit comments. We invite you to use these resources in crafting a public comment, and we will let you know when they become available.