The Biden administration recently announced a proposed regulation that would all but eliminate access to asylum for the overwhelming number of asylum seekers who come to the United States via the southwest border. But the regulation doesn’t put it that way.
The regulation, announced on February 21, would create a new asylum restriction for adults and families who present themselves unannounced to U.S. border officials to request asylum, and had traveled through another country on their way to the U.S. without applying for asylum – and being denied — there. The government insists that every asylum seeker has the power to avoid the ban by sticking to what it calls “lawful pathways”–a piece of spin that implies it’s unlawful to seek asylum if you enter the United States between ports of entry. And the regulation creates a whole procedure to determine whether and how the ban applies.
To understand why those “lawful pathways” don’t really exist for many people, and why the process they’ll be shunted into instead is tantamount to a near-complete asylum ban, you have to see how the process is intended to work and how it interacts with systems on the ground. Even the proposed regulation doesn’t attempt to explain this.
So, to illustrate the absurdity of the proposed regulation, here is “How to Seek Asylum In the United States (Under the Biden Administration’s Proposed Asylum Transit Ban), In 12 Not-At-All-Easy Steps.”
- Step 1: If you are from Cuba, Haiti, Nicaragua, Ukraine or Venezuela, and you have not irregularly entered Panama (through the Darién) or Mexico: go to step 2. If not, go to step 3.
- Step 2: If you have people in the U.S. willing to sponsor you who make enough money, cash for airfare, a passport, and time to wait: apply for humanitarian parole, which will allow you to fly into the U.S. and work legally for 2 years. If you don’t, go to Mexico and Step 3.
- Step 3: Try to find safe shelter on the Mexican side of the border (while evading Mexican immigration enforcement if you don’t have permission to be in Mexico). If you can find it, and you have the ability to freely travel to a port of entry (instead of having your smuggler decree where you’ll be crossing), go to step 4. If not, cross into the U.S. between ports of entry, request asylum, and go to step 7 for your eventual screening interview.
- Step 4: If you have a phone that can install CBP One, the ability to read English, Spanish, or Haitian Kreyol (but really just English, since that’s what the error messages are in), and patience to try to search for appointments day after day when the limited slots fill up or the app glitches: download CBP One and keep trying to get an appointment until you access the normal asylum process. If you run out of patience, money, or hope, go to step 5.
- Step 5: Go to the port of entry – assuming there aren’t U.S. or Mexican officials positioned in front of it preventing you from setting foot on U.S. soil. Try to get the attention of an officer and request asylum if you make it onto U.S. soil, then go to step 6.
- Step 6: Wait for your credible fear interview with an asylum officer. You can argue to them that you were unable to use CBP One due to an “ongoing and serious obstacle”; the burden is on you to prove that. If you can persuade the official it is more likely than not you were thus prevented, go to the normal asylum process, starting with a credible fear interview. Otherwise, go to step 7.
- Step 7: The asylum officer will ask whether you applied for—and were denied—asylum in another country before coming to the U.S. If you didn’t, you are now presumed barred: ineligible for asylum. Go to step 8.
- Step 8: The asylum officer will now find out if you qualify for an exemption to the bar – in legal terms, whether you “rebut the presumption” of ineligibility. If you were subject to an “acute” medical emergency; in “imminent and extreme danger;” or being trafficked in a “severe form” and can demonstrate all of this to the asylum officer’s satisfaction, you will be allowed to access the normal asylum process, including a credible fear interview. Otherwise, go to step 9.
- Step 9: At this point, the interview will proceed like a normal asylum screening interview, with questions about persecution faced in your home country and why you fear return. But the standard for passing the interview has shifted. Instead of the normal asylum process, which uses a “credible” standard met by 60 percent of interviewees over the last year (though it’s been higher in the past), you’re now subject to a “reasonable” standard that about a third of interviewees have met over that period. If you can pass the higher bar, you pass the interview and will be allowed to stay in the U.S. to appear before an immigration judge; go to step 11. If you can’t, go to step 10.
- Step 10: You fail the interview. If you want to appeal to a judge, request it in writing and go to step 12; otherwise, you will be deported.
- Step 11: You are allowed to apply for asylum before the immigration judge. However, it’s not clear from the draft regulation what happens next. The text of the draft regulation doesn’t say anything further has to happen, so judging by that, you will be allowed to access the normal asylum process. But the way DHS says the new system will work—in the preamble published in the Federal Register alongside the draft regulation, and on its website—is more complicated, and suggests you may still be ineligible for asylum and could only apply for “withholding of removal.” That means it’s possible the final regulation will be changed to reflect the more complicated process, and if not, the ambiguity may be used to your disadvantage. For that, go to step 12.
- Step 12: The judge reviews your interview transcript with the asylum officer and does their own review of whether you have demonstrated that you meet an exception to the bar (like the asylum officer did in step 8). If they find you do, you will be allowed to access the normal asylum process. If not, they’ll then review whether you demonstrate “reasonable fear” (as in step 9). If they find you do have a “reasonable fear,” you may be allowed to access the normal asylum process, or may be restricted to withholding of removal. If they find you don’t, you will be deported.
Clearly, this is not meant to be legal advice. Because if this seems convoluted—not to mention unclear—then know that the government is giving both itself and the public less than the usual amount of time to comment on and revise the draft regulation before it’s finalized.
The period for public comment is short—30 days instead of 60—and the time the government will take to read those comments could be constrained. The Biden administration has said that it anticipates it will have a new policy regime in place to succeed Title 42 when the national COVID emergency ends, which is currently set to happen on May 11. This regulation is written to serve as that policy: it says it won’t go into effect until Title 42 ends, which means the administration thinks there’s a good chance it will be finalized before then. That gives the government as little as six weeks for a process that often takes up to a year.
But the crunch facing the U.S. public now is nothing compared to what asylum seekers will face if the regulation goes into effect as drafted. People will be forced to navigate this process at the end of a grueling journey to the United States, with potentially lethal danger awaiting them at home if they fail.
FILED UNDER: Biden Administration, U.S.-Mexico Border