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Biden Administration announces plan to publish asylum ban regulations

May 10, 2023

The Advocates for Human Rights is incredibly disappointed that the Biden Administration has announced its intent to publish a final rule that amounts to a ban on the right to seek asylum for many. The rule is scheduled for publication on May 16.

"The U.S. has an unequivocal obligation under U.S. and international law to ensure people have access to protection from serious human rights violations. With the decision to issue its asylum ban regulation, the Biden Administration has institutionalized its abrogation of our human rights obligations," said Michele Garnett McKenzie, Deputy Director at The Advocates for Human Rights.

"Asylum is a lifeline for those most vulnerable who do not have the luxury of processing through preferred, safe pathways. By rushing to finalize this rule, the Biden Administration ignored the tens of thousands of individuals and experts who submitted comments identifying issues as well as viable alternatives. Providing and encouraging safe, orderly, and fair pathways to migration makes our communities stronger and more just; but the U.S. cannot condition asylum protections on use of those pathways. Seeking protection is always a lawful pathway to immigration under U.S. and international law." Garnett McKenzie added.

Tens of thousands of individuals, including The Advocates and our pro bono lawyers, clients, board members, congressional representatives, and partners, provided comments in opposition of the rule. The Administration chose to disregard these harms and instead issued a final rule in a record 60 days. Under the new rule, people fleeing persecution will be barred from asylum if they pass through another country on their way to the U.S. border and do not apply for protection there first-an illegal and impossible requirement given the harms and lack of infrastructure in the countries through which individuals transit to safety. One may overcome the bar only by obtaining advanced permission to enter, such as through lengthy and costly parole or visa processes; utilizing a difficult and racially biased CBP One scheduling app; or, showing that they fall within incredibly narrow exceptions, such as those experiencing acute medical conditions or human trafficking.

Litigation challenging the rule is expected. When faced with similar asylum bans under the Trump Administration, courts upheld the rights of asylum seekers. In the meantime, without access to counsel, people fleeing harm may face removal to persecution and torture. 

The Advocates will be continuing efforts to reverse this policy and to ensure further asylum bars are not entrenched by Congress. We will be providing information for pro bono lawyers navigating these changes in addition to ensuring our clients understand what the new rule means and have access to resources at a time that is fraught with fears and re-traumatization.