The Biden Administration has proposed new regulations that restrict who is eligible to claim asylum at the U.S.-Mexico border. The new rules anticipate the end of Title 42, a public-health program that limited the number of people who could seek protection at the border. Advocates have condemned the new measure, labeling it a "transit ban" that is unworkable and a violation of U.S. asylum law. Whether the policy is illegal, I am not sure, but it certainly seems unworkable in the sense that it will likely not deter many asylum seekers from coming to the border to ask for protection.

Here, I want to talk about the new rule, and what impact it might have on asylum seekers at the border and in the interior.

Before we get to that, I want to mention that I am sympathetic to the Biden Administration's border dilemma. On the one hand, I believe they do want to preserve the asylum system and protect legitimate refugees. But on the other hand, they recognize that the American public is becoming less tolerant of asylum seekers at the border, and so allowing the current situation to continue is politically untenable. In the absence of Congressional action, the Biden Administration is left to walk this fine line, and I fear they will satisfy no one. But I suppose that remains to be seen.

In any case, let's turn now to the proposed regulations.

First, why does the Biden Administration think these new rules are needed? Simply put, it is because the number of people seeking protection at the South West Border ("SWB") is at an all-time high. For the period 2014 to 2019, there were "less than 1,600 encounters per day" at the SWB. But for the "30 days ending December 24, 2022, total daily encounters... [averaged] approximately 8,500 per day." In FY2022, the number of "encounters" reached "an all-time high of 2.2 million" and "the first quarter of FY 2023 (October–December 2022) exceeded the same period in FY 2022 by more than a third." Further, the Administration estimates that when Title 42 ends, encounters will increase to between 11,000 and 13,000 per day. Given these numbers, the Biden Administration is concerned that it does not have the capacity to process so many new arrivals.

Also, many people who "pass" a credible fear interview (an initial evaluation of asylum eligibility at the border) are ultimately denied asylum in the United States. According to the Administration, "fewer than 20 percent of people found to have a credible fear were ultimately granted asylum," but "the process... is quite lengthy, with half of all cases taking more than four years to complete, and in many cases much longer." "As a result, those who have a valid claim to asylum in the United States often have to wait years for a final protection decision." "DHS data shows that the ability to quickly remove individuals who do not have a legal basis to remain in the United States can reduce migratory flows—whereas, conversely, the inability or failure to do so risks yielding increased flows." In short, the large number of arrivals at the border--most of whom will eventually be denied asylum--are causing massive delays throughout the system and if fewer people came here, fewer people would be incentivised to come here, and cases could be adjudicated more quickly.

So what do the new rules do?

The rules "establish a rebuttable presumption that certain noncitizens who enter the United States without documents sufficient for lawful admission are ineligible for asylum, if they traveled through a [third] country... unless they were provided appropriate authorization to travel to the United States to seek parole pursuant to a DHS-approved parole process; presented at a port of entry at a pre-scheduled time or demonstrate that the mechanism for scheduling was not possible to access or use; or sought asylum or other protection in a country through which they traveled and received a final decision denying that application." However, the "presumption could be rebutted... if, at the time of entry, the noncitizen or a member of the noncitizen’s family had an acute medical emergency; faced an imminent and extreme threat to life or safety... or [was a] victim of... [human] trafficking." "The presumption also would be rebutted in other exceptionally compelling circumstances," including for the sake of family unity. Also, "Unaccompanied children would be excepted from this presumption." In addition, "Individuals subject to the rebuttable presumption would remain eligible for statutory withholding of removal and protection under the... Convention Against Torture." So in other words, there are lots of exceptions to the rule that certain noncitizens are ineligible for protection at the border, and it's difficult to believe that these exceptions won't swallow the rule.

For noncitizens who are allowed to seek asylum, the first step is a credible fear interview. If the applicant passes the CFI, her case can now be adjudicated by an Asylum Officer rather than an Immigration Judge. According to the government, this process creates "multiple efficiencies, including using the information presented to the asylum officer in the credible fear interview as the asylum application, which eliminates the need for duplicative paperwork and processing time." If the officer "does not grant asylum, the individual is referred to [Immigration Court] for streamlined... removal proceedings." All this should be faster than the old process, though it will put a further strain on the Asylum Officer corp and likely cause even more delay for applicants in the interminable affirmative asylum backlog (this, despite the growth of the Asylum Division from 273 officers in 2013 to 1,024 asylum officers in 2022).

In conjunction with the new regulations, the U.S. government "has committed to enhancing legal pathways and processes for migrants in the region to access protection and opportunity in the United States." These include "significant increases to H-2 temporary worker visas and refugee processing [for up to 20,000 people per year] in the Western Hemisphere" and "introducing innovative parole processes for nationals of certain countries in the region," including Venezuelans, Cubans, Haitians, and Nicaraguans. In addition, the government plans to improve consular processing for certain countries such as Cuba and Haiti. "By expanding these pathways and processes, the United States has provided migrants an alternative to paying smuggling organizations that profit from taking migrants on a dangerous journey to the SWB, and has provided incentives for migrants to seek an alternative and safer pathway to the United States."

The government also hopes to use technology to improve the border. For example, the "innovative" (their word) CBP One app will be used to "significantly increase the number of individuals, including those who may be seeking asylum, that CBP can process at land border ports of entry." While advocates have expressed concern that not all migrants can access the app, Customs and Border Protection "has observed that the overwhelming majority of noncitizens processed at ports of entry have smartphones" (though whether the app actually works is still an open question).

In addition, the government has been working with "countries throughout the region to prioritize and implement a strategy that advances safe, orderly, legal, and humane migration, including access to international protection for those in need, throughout the Western Hemisphere." In other words, the Biden Administration is working to convince other countries to accept more refugees for resettlement, so that they do not come to the U.S.

President Biden is certainly making an effort to reduce the flow of migrants to our Southern border, and to accomplish that in a humane way, all while preserving the asylum system. Whether he can achieve any of those goals, and whether he can bring relief to the asylum seekers who are already here waiting for a decision, I do not know. I have real doubts that these new regulations will satisfy anyone, but I certainly hope to be proven wrong.

Originally posted on the Asylumist: