On May 10, the Biden administration released a new federal regulation that will severely restrict asylum access and eligibility in the United States. The sweeping final rule has been teed up to effectively replace the Title 42 public health order, which for years functioned primarily as an immigration enforcement tool by allowing border officials to quickly expel migrants without even the opportunity to ask for asylum.
Now, under the new federal regulation, people fleeing their homes because of unlivable violence and instability will be rendered ineligible for asylum unless they can meet one of a handful of exceptions. As a result, the U.S. will likely return many vulnerable migrants to dangerous situations, despite them having legitimate protection claims.
This explainer gives an overview of what the final rule does, how it will affect asylum seekers, and where it fits within other enforcement-focused policies at the U.S.-Mexico border after Title 42’s end.
What does the final rule do?
Generally, the “Circumvention of Lawful Pathways” rule will make it so that asylum seekers who travel through a third country on their way to the U.S.-Mexico border will be presumed ineligible for asylum, with limited exceptions. In practice, this means the vast majority of nationalities seeking protection in the U.S. will be disqualified from asylum if they arrive at our southern border by land or water and can’t overcome what the final rule calls a “presumption of asylum ineligibility.”
Who exactly will be ineligible for asylum?
Generally, would-be asylum seekers will be presumed ineligible for asylum unless they (or their accompanying family member):
- already have permission to travel to the U.S. through a parole process approved by the Department of Homeland Security (DHS);
- use a DHS scheduling system like CBP One — a phone app by the federal agency in charge of border enforcement — to pre-schedule a time and place to present themselves at a port of entry (or show up at a port of entry and can prove by a preponderance of the evidence that they couldn’t use the scheduling system because of language barriers, illiteracy, technical failures, or otherwise chronically serious issues); or
- have sought protection in another country on the way to the U.S., and have received a denial as the final decision.
Because Mexicans typically do not transit through another country en route to the U.S.-Mexico border, they will generally be exempt from the presumption of asylum ineligibility (though historically, Mexicans in immigration court already have especially low asylum grant rates). And migrant children who enter the U.S. unaccompanied by a parent or legal guardian are also categorically excepted.
Why can’t all asylum seekers just comply with those exceptions?
In practice, all of these exceptions are weighed down by serious limitations and exclusions that make them inaccessible to many of the world’s most vulnerable.
Exception 1 – Permission to Enter: In recent months, the Biden administration has established a series of targeted parole processes to offer more orderly pathways for people from certain countries to reach the U.S. These programs have allowed up to 30,000 Venezuelans, Nicaraguans, Haitians, and Cubans to come to the U.S. per month, and DHS also recently announced new or expanded family reunification parole processes for Colombians, Salvadorans, Guatemalans, Hondurans, Cubans, and Haitians who already have approved family-based petitions for green cards.
These temporary legal pathways are a welcome development, but realistically, they only apply to a relatively narrow swathe of potential migrants and asylum seekers. For Venezuelans, Nicaraguans, Haitians, and Cubans to qualify for the more general programs, they must secure a passport, afford international commercial air travel to the U.S., and find a U.S.-based sponsor who’s willing to support them financially — all significant logistical and financial obstacles. Meanwhile, the new family reunification parole processes are invite-only and apply to the comparatively small group of people with an existing long-term pathway to citizenship in the U.S.
Exception 2 – CBP One Appointments: Since officials started deploying the CBP One phone app to give a limited number of migrants access to the asylum process each day, its users have reported glitches and deficiencies that have led to a great deal of frustration for those waiting in Mexico. A letter signed by 35 Democratic members of the U.S. House of Representatives “rais[ed] concerns about [CBP One’s] use of facial recognition technology that is far more likely to misidentify people of color, children, and transgender migrants,” making it more difficult for those groups to successfully use the app and secure appointments to enter the U.S.
In response, U.S. Customs and Border Protection (CBP) has transitioned to a new appointment scheduling system that will allow users to request appointments throughout most of the day, instead of at a specific time, in hopes that doing so will mitigate pressures on the app and address issues with limited Internet access. The agency will also privilege migrants who have been waiting the longest, by allotting a percentage of appointments specifically for those with the earliest registered CBP One profiles. Still, the CBP One app only has about 1,000 available appointments per day right now, a number insufficient to meet the demand at the southern border.
Notably, while an exception exists for people who can demonstrate that they are unable to access an appointment through CBP One, significant barriers such as simply not speaking one of the few languages available on the app will generally not be sufficient evidence to qualify for it.
Exception 3 – Unsuccessfully Sought Protection Elsewhere: Amid a hemispheric forced displacement crisis, many of the countries that asylum seekers pass through on their way to the U.S. are potentially dangerous places from which others are simultaneously fleeing. For example, violence and instability in Guatemala, Honduras, and El Salvador have sent many thousands of people to the U.S. in search of protection.
Also, many of the countries in the region already have asylum systems that are overburdened and under-resourced. Mexico, for instance, has started receiving the third-most asylum claims in the world, while Costa Rica and Colombia are shouldering the lion’s share of responsibility for displaced people from Nicaragua and Venezuela, respectively. In this context, asylum seekers could face further persecution, generalized violence, and untenably long adjudications if they try to apply for protection elsewhere in the region.
Why can’t asylum seekers just wait in Mexico for a CBP One appointment?
Even as the U.S. government has increasingly outsourced immigration enforcement and humanitarian responsibilities to Mexico, concerning signs have suggested that vulnerable migrants and asylum seekers face targeted threats there. When a previous Trump-era policy – the Migrant Protection Protocols – stranded people in Mexico while they awaited their U.S. immigration court hearings, there were over 1,300 reports of migrants and asylum seekers being raped, kidnapped, or otherwise attacked. Likewise, since President Joe Biden assumed office, there have been approximately 13,500 reports of migrants and asylum seekers facing similar violence after being blocked in or expelled to Mexico under Title 42.
A closer look at Mexico’s country conditions quickly reveals that some asylum seekers face a disproportionately high risk there. For example, more than seven in ten women in Mexico have experienced gender-based violence, and an average of six women are disappeared each day. Such difficult conditions are not safe for women, girls, children, families, and other vulnerable individuals, particularly if they face prolonged waits before they’re allowed to enter the U.S.
Other than these limited exceptions, are there any other ways to avoid asylum ineligibility?
The presumption of asylum ineligibility in the final rule is technically “rebuttable,” which means that — even if someone does not meet one of the few exceptions described above — they may still be able to argue it shouldn’t apply to them. But these grounds for rebuttal are exceedingly narrow and may prove difficult to operationalize on the ground, where individual officers and immigration judges will be making complex determinations in high-stress situations.
Theoretically, someone should be able to rebut the presumption of asylum ineligibility if they can show — ultimately by a preponderance of the evidence — that theirs are exceptionally compelling circumstances, including if they or their accompanying family member endured an acute medical emergency, an imminent and extreme threat, or severe trafficking.
When will the final rule be enforced?
The federal regulation applies to would-be asylum seekers starting on May 11, 2023 at 11:59 p.m. EST, when the Title 42 public health order lifts. The rule will affect those who enter the U.S. from Mexico over a predetermined period of two years, subject to potential review for extension or modification. Notably, the current cutoff date — May 11, 2025 — will come a few months after a new presidential inauguration, so a different administration from the one that implemented these restrictions could conceivably decide their future.
The Biden administration has predicated this new federal regulation on an assumption that far more migrants and asylum seekers will start arriving at the U.S.-Mexico border once the Title 42 public health order expires. The rule is intended to deter people from coming.
What about other forms of protection, beyond asylum?
There are other forms of protection — statutory withholding of removal and protection under the Convention Against Torture — that asylum seekers will still be able to potentially qualify for in the U.S., and they’ll be screened for those even if they’re presumed ineligible for asylum. But there is reason for considerable concern that vulnerable migrants may struggle to articulate their claims for protection immediately after long and dangerous journeys north, particularly given the much higher evidentiary standards for these alternative protections.
How does the rule relate to U.S. and international law?
Domestic law says that any noncitizen arriving in the U.S. or already here — regardless of immigration status or how he or she entered — has a legal right to seek asylum. In addition, the U.S. has signed and ratified relevant international treaties protecting the rights of those fleeing danger, making those obligations binding federal law. Under these treaties – and accordingly under U.S. federal law – the U.S. cannot return people to places where they will face persecution or torture, a concept known as “non-refoulement.”
The “Circumvention of Lawful Pathways” rule inherently challenges both these basic principles by potentially sending asylum seekers with legitimate claims back to danger after they are rendered ineligible for asylum. After the rule was first proposed, attorneys for the union representing over 14,000 U.S. Citizenship and Immigration Services (USCIS) employees, including asylum officers, urged the Biden administration to rescind it. They wrote that it could force their members “to take actions that would violate their oath to faithfully discharge their duty to carry out the immigration laws adopted by Congress” and “make them complicit in violations of U.S. and international law.”
The United Nations High Commissioner for Refugees — the UN’s refugee agency — also expressed concerns that the rule “runs afoul of several central principles of international refugee law,” including “the foundational principle of non-refoulement and the right to seek asylum.”
Is this policy only relevant at the U.S.-Mexico border?
While the presumption of asylum ineligibility only applies to people who enter by land or water at the U.S.-Mexico border, its consequences are far-reaching long after those individuals start building a life in the U.S. The presumption will apply to initial screenings at the border, quickly disqualifying people from asylum and setting a high bar for other forms of protection. But even if people are able to surmount that first hurdle, they will still face the presumption of asylum ineligibility during their full immigration court proceedings, potentially years down the road. In addition, the presumption may also apply to people who are not even facing deportation and ask for asylum affirmatively, if they crossed the U.S.-Mexico border without authorization between May 11, 2023, and May 11, 2025.
How does the final rule interact with other post-Title 42 policies announced at the border?
The federal regulation is a cornerstone of the Biden administration’s plan to respond to the post-Title 42 anticipated uptick in migration at the U.S.-Mexico border. But officials have also announced other policies that will work in tandem to have a dramatic impact for those seeking protection.
Key elements of this strategy are:
- the expanded use of expedited removal, a fast-track process by which people are rapidly deported from the U.S. and subject to a 5-year bar to re-entry;
- potential criminal prosecution for those attempting to re-enter the U.S. after being removed;
- expedited initial asylum screenings — called credible fear interviews — in border facilities that lack access to in-person attorneys. Asylum seekers will be interviewed telephonically soon after they are apprehended; and
- an increase in removal flights to rapidly deport people, plus an agreement where the Mexican government will accept certain deported non-Mexicans.
Each of these policies does not exist in isolation. On the contrary, operating in conjunction, they will make it far more difficult for asylum seekers with legitimate claims to access protection in the U.S., placing individuals and families at undue risk of continued violence and persecution.
Author: Alexandra Villarreal