Last week, the Biden administration toughened its stance against migration at the US-Mexico border through a new federal regulation that severely restricts access to asylum. This “Circumvention of Lawful Pathways” rule effectively replaces the Title 42 public health order, which Donald Trump introduced ostensibly to stem Covid-19 but has functioned increasingly as an immigration enforcement tool, allowing border officials to quickly expel migrants without the chance to request asylum in the US. Title 42 ended on 11 May.
The new regulation means people fleeing their home countries because of unlivable violence and instability are rendered ineligible for asylum unless they can meet one of a handful of exceptions.
As a result, the US will probably return many more vulnerable people to dangerous situations. The rule is being challenged in federal court by advocacy groups.
What does the rule do?
Generally, the Circumvention of Lawful Pathways rule means those traveling through a third country before reaching Mexico and the US-Mexico border will be presumed ineligible for asylum, with limited exceptions. In practice, most nationalities seeking American protection will be disqualified from asylum if they reach the southern border by land or water and can’t overcome a “presumption of asylum ineligibility”.
Who will be ineligible for asylum?
Those requesting asylum in the US now will generally be presumed ineligible unless they or their accompanying family member can show they:
already have permission to enter through a parole process approved by the Department of Homeland Security (DHS).
use a DHS scheduling system like CBP One – a recently developed government phone app – to secure a coveted appointment to present themselves at an official border port of entry. Or show up at a port of entry and meet a very high bar for why they couldn’t use the scheduling system.
have sought protection in another country en route to the US and been denied it.
Mexicans typically don’t transit through another country before reaching the border, so they are generally exempt from the new rule’s presumption of asylum ineligibility, though historically Mexicans in US immigration court have especially low rates of being granted asylum. Children who migrate unaccompanied by a parent or legal guardian may seek asylum, unaffected by the regulation.
For others, even if they pass initial screenings for protection, they still face the presumption of ineligibility during their full immigration court proceedings. There’s the opportunity for rebuttal, but the chance of success is probably slim.
Why can’t all asylum seekers just comply with the stated exceptions?
In practice, the exceptions are weighted against the world’s most at-risk people. They are:
Exception one: permission to enter. The Biden administration is offering specific parole processes, allowing up to 30,000 people total from Venezuela, Nicaragua, Haiti and Cuba to enter each month.
But those people must obtain a passport, fly to the US and find a US-based sponsor who will support them financially.
The government also recently announced more or improved family reunification parole processes for Colombians, Salvadorians, Guatemalans, Hondurans, Cubans and Haitians who already have approved, family-based petitions for green cards. These are invitation-only and apply to relatively few migrants.
Exception two: CBP One appointments. The CBP One app offers a very limited number of daily appointments to begin the asylum process. Users – who need a smartphone – have reported glitches and deficiencies, causing frustration for those waiting on the Mexican side of the border.
US Customs and Border Protection (CBP) has made some changes but the roughly 1,000 available daily appointments still can’t meet demand.
Exception three: unsuccessfully sought protection elsewhere. Joe Biden has referred to “the greatest migration in human history” across the western hemisphere, driven by political instability or dictatorship, economic calamity, natural disaster and violence. Yet many of the countries that asylum seekers pass through overland on their way to the US are potentially dangerous places from which local residents are already simultaneously fleeing, and where poor travelers are targets for criminals. Conditions in Guatemala, Honduras and El Salvador have sent many thousands to the US.
And asylum systems in places such as Mexico, Costa Rica and Colombia are already under significant strain, which this federal regulation could exacerbate.
Why can’t people just wait in Mexico for an asylum appointment in the US?
When a previous Trump-era policy – the Migrant Protection Protocols, also known as “Remain in Mexico” – stranded people at the border, there were more than 1,300 reports of rape, kidnapping and other attacks. Since Biden took office, there have been approximately 13,500 reports of migrants and asylum seekers facing similar violence after being blocked in Mexico or expelled there under Title 42.
Meanwhile, more than seven in 10 women in Mexico have experienced gender-based violence amid a decades-long femicide crisis.
What about other forms of protection?
Asylum seekers may still qualify for other, lesser, protections, for example for victims of torture. But, especially with the stresses endured on the way to and at the border, and during expedited processing, many will struggle to make their case.
What are the other hardline rules at play?
The Biden administration has also expanded the use of expedited removal, in which people are rapidly deported and given a five-year bar to re-entry; threatened potential criminal prosecution for those attempting to re-enter the US after being removed; expedited initial asylum screenings – called credible fear interviews – in border facilities, conducted by telephone soon after apprehension and with limited access to an attorney, also only by telephone; increased removal flights; and made an agreement in which Mexico accepts certain deported non-Mexicans.
Together they make it far more difficult for asylum seekers with legitimate claims to access protection in the US.
What about US and international law?
Domestic law says that any non-citizen arriving in the US or already there – regardless of immigration status or how they entered – has a right to seek asylum. And the US is bound to international treaties protecting the rights of those fleeing specific kinds of threats. Accordingly, under federal law the authorities cannot return people to places where they face persecution or torture.
The Circumvention of Lawful Pathways rule inherently challenges these principles by potentially sending asylum seekers with legitimate claims back to danger. Attorneys for the union representing 14,000 US Citizenship and Immigration Services employees, including asylum officers, had urged Biden to rescind it, so that officers do not become “complicit in violations of US and international law”.
The United Nations High Commissioner for Refugees (UNHCR) has also protested.
Alexandra Villarreal is a policy and advocacy associate at the National Immigration Forum, and this Q&A is a condensed version of an explainer published here
