There is a 1.6 million case backlog in asylum application cases at this point. (Go here.) Trump, then Biden, have tried to increase capacity to hear the cases and to stop the flow coming from Mexico. This posting is about Biden’s most recent effort to reduce the flow, to the extent that critics call a proposed rule an “asylum ban.”
On February 23, 2023, The Biden administration proposed a new rule that would make it more difficult for migrants to claim asylum in the United States. Under the proposed rule, immigrants who try to enter the U.S. between ports of entry without first seeking asylum or other immigration protections in another country are presumed ineligible for asylum in the U.S., barring some exceptions. The new rule gives asylum officers more authority by allowing them to hear and decide asylum claims – cases that are usually assigned to immigration judges – when migrants present at the border.
Proponents of the rule argue that it will help reduce the number of fraudulent asylum claims and help alleviate pressure on the immigration system. Opponents of the rule argue that it will make it much more difficult for legitimate asylum seekers to gain protection in the United States. Human Rights First calls in an asylum ban.
How many migrants will be affected? The number of persons who entered the U.S. between formal ports of entry and were apprehended are not readily reported by Customs and Border Patrol; of these, only a share are asking for asylum. Given that there are about 1.5 million apprehensions annually (an unduplicated count estimate) it would appear that at least several hundred thousands may be entering this way.
In the language of the proposed rule, “A Proposed Rule by the Homeland Security Department and the Executive Office for Immigration Review on 02/23/2023:”
The Department of Homeland Security (“DHS”) and the Department of Justice (“DOJ”) are issuing a notice of proposed rulemaking (“NPRM” or “proposed rule”) in anticipation of a potential surge of migration at the southwest border (“SWB”) of the United States following the eventual termination of the Centers for Disease Control and Prevention’s (“CDC”) public health Order.
The proposed rule would encourage migrants to avail themselves of lawful, safe, and orderly pathways into the United States, or otherwise to seek asylum or other protection in countries through which they travel, thereby reducing reliance on human smuggling networks that exploit migrants for financial gain. It would do so by introducing a rebuttable presumption of asylum ineligibility for certain noncitizens who neither avail themselves of a lawful, safe, and orderly pathway to the United States nor seek asylum or other protection in a country through which they travel. In the absence of such a measure, which would be implemented on a temporary basis, the number of migrants expected to travel without authorization to the United States is expected to increase significantly, to a level that risks undermining the Departments’ continued ability to safely, effectively, and humanely enforce and administer U.S. immigration law, including the asylum system, in the face of exceptionally challenging circumstances.
Coupled with an expansion of lawful, safe, and orderly pathways into the United States, the Departments expect the proposed rule to lead to a reduction in the numbers of migrants who seek to cross the SWB without authorization to enter, thereby reducing the reliance by migrants on dangerous human smuggling networks, protecting against extreme overcrowding in border facilities, and helping to ensure that the processing of migrants seeking protection in the United States is done in an effective, humane, and efficient manner.