Betrayed at the Border: The Human Cost of Biden's Asylum Policy

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Borderlands Resource Initiative Statement on Interim Proposed Rule Restricting Access to Asylum and Safety

The Borderlands Resource Initiative (BRI) is profoundly disheartened by the Biden administration's recent Interim Proposed Rule and Executive Order aimed at further restricting the ability of asylum seekers to seek refuge and protection in the United States. This action contradicts our nation's longstanding commitment to human rights and international asylum laws, and sets a disappointing new low point for inhumane policy, going even further than the Trump administration.

At BRI, we firmly believe that seeking asylum is a fundamental human right, and migration is not a crisis to be suppressed, but a natural part of our global reality. The United States has the resources and the moral obligation to support those seeking safety and protection from persecution. Our diverse immigrant heritage is a source of national pride, and our communities are enriched by the diversity and resilience of newcomers. The newly implemented restrictions undermine these core values, and make the already difficult journey to safety increasingly more cruel.

Impact of the Interim Proposed Rule

The Interim Proposed Rule (IFR) introduces new restrictions that will make it appreciably more difficult for individuals to seek asylum in the United States. Most significantly, this rule effectively shuts down the legal right to seek asylum based on arbitrary numerical thresholds rather than individual protection needs, with limited exceptions. The new policy exempts unaccompanied minors, victims of severe human trafficking (often requiring documentation or written proof), and those who manage to secure appointments at ports of entry via the CBP One smartphone app. The CBP One app has the potential to offer a more streamlined and efficient way for asylum seekers to schedule appointments to enter the country, but appointments have been limited to less than 20% of the ports at the southern border, and capped at 1,450 total appointments daily. Additionally, serious concerns remain about the limited language and technological accessibility for the app, and the extensive wait times in Mexico, averaging around 5-7 months.

The Biden administration's IFR "closed" the border effective June 5th, and implemented the authority to engage in mass expedited deportations of migrants arriving between ports of entry. This serious and unprecedented barrier to asylum will remain in place until 2 weeks have passed with a daily average of 1,500 people or less, and then begin anytime that the 7 day average of arrivals on the southern border is above 2,500 people. These numbers are well below historical averages going back decades. As demonstrated in the analysis provided by the Washington Office of Latin America (WOLA), arrivals on the southern border haven't been below 1500 since 2020.

Data Analysis courtesy of Adam Isacson / WOLA

Differences Between the New Interim Final Rule (IFR) and Previous Policies

• Asylum Eligibility: Under the Refugee Act of 1980 and Section 208 of the Immigration and Nationality Act (INA), any non-citizen physically present in the U.S. or arriving at its borders could apply for asylum regardless of how they arrived. This ensured due process and individual assessment based on protection needs. The IFR introduces an arbitrary numerical threshold, suspending the right to request asylum if the daily average of migrant encounters exceeds 2,500. This threshold-based system effectively denies thousands of individuals the ability to request asylum based on numbers rather than individual protection needs.
  

• Title 42 Expulsion vs. Expedited Removal: During the COVID-19 pandemic, Title 42 allowed for the expulsion of migrants, citing public health concerns. However, this did not entirely suspend the right to seek asylum, and migrants could still request protection in certain circumstances. Most importantly, under Title 42, migrants were expelled from the U.S. without formal immigration processing, and did not face legal consequences of re-entry bans. In contrast, the new border policy places migrants into mass expedited removal processes, which involve formal deportation proceedings and a five-year ban from returning to seek asylum. Migrants could also face potential criminal charges if they attempt to return to the U.S., severely limiting access to humanitarian relief and increasing the risks of exploitation by criminal organizations. As documented by the National Immigrant Justice Center, "Expedited removal has been repeatedly shown to have inherent due process obstacles that are often impossible to overcome. Combined with Biden’s asylum ban, expedited removal stacks the odds against people seeking asylum and makes their return to danger (in violation of U.S. and international law) commonplace."

• Credible Fear Interviews: CBP officers are obligated to assess the fear of return expressed by migrants during their initial encounters at the border. If a migrant indicates a fear of persecution or harm if returned to their home country, CBP must refer them to an asylum officer for a credible fear interview. This process ensures that individuals with potentially valid asylum claims receive appropriate screening and are allowed to remain in the U.S. while their cases are adjudicated. The new rule removes the requirement for CBP officers to proactively ask migrants about their fear of persecution, instead instituting the so-called "shout test" where migrants must explicitly state their fear of return or request for asylum to be referred to an asylum officer for a credible fear interview. This practice places the burden on migrants to clearly articulate their fear without being prompted or asked directly by border officials, often in a stressful and unfamiliar environment, which can lead to many valid asylum seekers being overlooked and subsequently deported without proper evaluation.
  

• Legal Representation and Due Process: Asylum seekers have never had robust access to legal representation in the United States, which is critical for navigating the complex asylum process and ensuring fair hearings. Studies by the Vera Institute of Justice demonstrated that despite widespread paperwork errors within the overburdened immigration court system, asylum seekers with legal representation attended 96% of their court appearances and those without representation attended 80% of the same. Unfortunately, access to counsel for migrants in CBP custody facing expedited removal is a significant challenge. From the previous Biden policy, asylum seekers in these rushed deportation processes were only given 12 hours to attempt to access council while in CBP holding, regardless of whether those 12 hours fell overnight or during weekends when obtaining a lawyer was impossible. Under the new IFR, that timeframe has been shortened to only 4 hours, to fall between the hours of 7am-7pm but still likely to fall during weekends, holidays, and outside of office hours. The National Immigrant Justice Center's explainer on the Family Expedited Removal Management (FERM) program underscores that fewer than 3% of migrants in expedited removal have legal representation due to rushed timelines and procedural barriers. Additionally, this lack of access to counsel severely hampers their ability to prepare and present their asylum claims effectively, leading to wrongful deportations despite potentially strong justification for asylum.
  

Legal and Humanitarian Concerns

This executive action violates the Refugee Act of 1980 and international asylum laws by denying due process to asylum seekers. The impacts of this measure are likely to be similar to the Title 42 expulsion authority used during the COVID-19 pandemic, which led to widespread violence and abuses against migrants stranded in Mexico. Additionally, restrictive U.S. policy has been shown time and again to empower criminal cartels and human smugglers to exploit migrants' desperation and confusion regarding legal pathways to seek asylum. A detailed report from InSight Crime found that the "US government’s immigration policies have provided more opportunities for organized criminal groups to victimize migrants. The policies have, most notably, created a bottleneck along the US-Mexico border where northbound migrants are forced to congregate as they determine whether they are eligible to seek asylum and contemplate alternative ways to enter the country. As a result, they have become highly susceptible to extortion and kidnapping. Over time, restrictive immigration policies have expanded the scope of these lucrative, secondary criminal economies."

Call to Action

We urge the administration to reconsider these harmful policies and to engage in meaningful dialogue with community organizations, legal experts, and humanitarian groups to develop more compassionate and effective approaches to managing migration. The government must ensure that its policies reflect the values of compassion, justice, and respect for human dignity.

We invite the public to join us in advocating for policies that protect the rights of asylum seekers and uphold our nation's commitment to being a beacon of hope for those fleeing persecution. Together, we can build a system that is both just and humane, reflecting the best of American values.