Us Asylum: Is The Current Administration Breaking The Law?

The Biden administration's June 2024 executive order and subsequent September 30 amendment, in addition to the Asylum Ban rule of May 2023, have been criticised for restricting asylum eligibility and undermining the legal right to seek asylum. The Asylum Ban bars asylum for those crossing through another country to reach the southern US border, unless they previously applied for asylum and were denied or made an appointment through the CBP One app. This has been challenged as unlawful and contrary to American laws and values, as seeking asylum is a human right recognised in US and international law. The Biden administration's actions have been criticised for deterring migrants and leading to humanitarian consequences, with people with valid asylum claims potentially being denied protection.

The Biden administration's June 2024 executive order and subsequent amendments

The Biden Administration's June 2024 executive order, titled "Securing the Border," severely limited eligibility for asylum protections for most people arriving at the US-Mexico border. This proclamation, followed by an Interim Final Rule (IFR), went into effect immediately and created new legal standards that made it difficult for migrants to seek other types of protection. This included the addition of unaccompanied minors in the calculation for daily border encounter averages, despite them being exempt from the suspension and related measures.

The June 2024 executive order was amended on September 30, 2024, to tighten asylum restrictions further. This amendment, issued as a Final Rule, increased the number of days during which the average number of daily immigration enforcement encounters at the US border must fall below 1,500 to lift the suspension of asylum processing from 7 to 28. The Final Rule also included all children arriving at the border without a parent or guardian in the trigger number, making it even harder to meet the conditions to lift the asylum ban.

The Biden Administration's June 2024 executive order and its subsequent amendments have been widely criticized by humanitarian and legal services organizations for violating human rights and due process, as well as international law. These policies have been described as harmful, counterproductive, and illegal, with calls for the administration to reverse course and implement a more humane and fair asylum process.

The Asylum Ban rule of May 2023

In May 2023, the Biden administration adopted the "Asylum Ban" rule, also known as the "Circumvention of Lawful Pathways" rule or the "Biden asylum ban". This rule bars people from asylum protection if they enter the United States without permission after travelling through another country. It applies to anyone who entered the US between May 11, 2023, and May 11, 2025.

The ban makes asylum seekers ineligible for asylum unless they meet one of the following exceptions:

• Asylum seekers from Mexico, as they do not travel through another country before entering the US
• Unaccompanied minors
• People who enter the US through parole, a process where the government can grant permission to enter
• People with a pre-scheduled appointment at a port of entry, made through the CBP One app
• People who have previously applied for asylum in another country and been denied

The rule also states that asylum seekers may be exempt if they faced "exceptionally compelling circumstances", such as an "acute medical emergency" or an "imminent and extreme threat to life or safety".

The Asylum Ban remains in place despite an initially successful legal challenge, with a federal court finding the rule unlawful as it conflicts with US asylum law. However, the ban has been allowed to remain in place while the government appeals the ruling.

The Trump administration's CBP One app

The CBP One app was introduced under the Trump administration in 2020 to manage cargo-truck crossings at the US-Mexico border. It was used by asylum seekers to make appointments at legal ports of entry and was also popular among tourists to help them speed through airport customs.

The app was initially limited to managing cargo-truck crossings, but in 2023, the Biden administration expanded it to create a process by which a limited number of migrants could lawfully apply for asylum. Despite this, the app was maligned by progressives and immigration advocates for intentionally curbing asylum access.

On the day of his inauguration for his second term as US President, Donald Trump shut down the CBP One app, cancelling all existing appointments. This left thousands of migrants stranded at the border or deeper in Mexico. Many had travelled long distances, crossing continents and traversing the Darien Gap jungle, to reach the border.

The app's demise was part of a series of hardline immigration policies implemented by the new administration, including the reinstatement of the 'Remain in Mexico' policy, which forced asylum seekers to wait in Mexico while their cases were adjudicated.

The Biden administration's shout test

The Biden administration's "shout test" is a process by which asylum seekers must "manifest or express" a fear of returning to their country of origin. This replaces the previous policy, under which U.S. immigration officials were required to ask individuals if they feared persecution or torture in their home country. If they answered yes, officials were then obligated to refer them for a screening with an asylum official. Now, if asylum seekers fail to proactively request asylum or indicate fear of persecution, they may be deported without ever being screened for asylum or humanitarian protection.

The "shout test" is part of a broader set of policies that restrict asylum eligibility for those who enter the U.S. during high encounters at the southern border. These policies include:

• A proclamation that temporarily suspends the right to asylum for people who arrive at the southern border without a CBP One appointment or away from an official port of entry.
• A final rule issued by the Department of Homeland Security (DHS) and the Department of Justice (DOJ) that restricts asylum eligibility and increases the government's ability to quickly remove those who cross the southern border unlawfully or without authorization.
• The "Asylum Ban," which bars asylum for people who cross through another country on their way to the southern U.S. border, unless they previously applied for asylum and were denied or made an appointment through the CBP One App.

These policies have been criticized for reducing asylum seekers' chances of presenting their case to an immigration judge and for being contrary to American laws and values. The Biden administration has defended these policies as necessary to deter unlawful border crossings and strengthen border security.

The "shout test" has raised concerns about the potential for federal agents to fail to acknowledge fear expressed by asylum seekers, as has been reported in the past. The real-world implementation of these policies and their impact on asylum seekers remains to be seen.

The Biden administration's reasonable probability standard

The new regulation raises the standard for passing a screening interview from demonstrating "credible fear" of persecution, to a reasonable possibility of persecution, and now to a reasonable probability. This new standard is defined as being substantially higher than reasonable possibility, and somewhat lower than a "more likely than not" standard.

The interpretation of "reasonable probability" is left up to the trainers and supervisors of asylum officers, as well as immigration judges who determine whether to reverse negative screening assessments.

The new regulation will remain in place even if the other portions of the regulation restricting asylum eligibility are struck down in court.

Frequently asked questions