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What to know about Biden’s controversial new rule for asylum seekers

The proposed regulation will impose new restrictions on who can seek asylum in the United States

A Ukrainian couple who fled Kyiv wait with their preteen daughter and their luggage.
A Ukrainian family who fled Kyiv, Ukraine, on March 24, 2022, wait with their luggage before being allowed to cross the San Ysidro Port of Entry into the United States to seek asylum on March 22, 2022 in Tijuana, Mexico. (Mario Tama/Getty Images)

The Biden administration this week unveiled a plan to impose new restrictions on who can seek asylum in the United States, by penalizing migrants who cross the border without authorization or fail to apply for protections in another country if they pass through one en route.

The proposed regulation, which will make it easier to quickly deport asylum seekers who are disqualified under the new rule, was widely condemned by immigration and human rights advocates. They compared it to a 2019 Trump administration measure known as the asylum “transit ban,” a policy that required asylum seekers from anywhere but Mexico to request asylum in one of the other countries they traveled through before reaching the United States.

“Instead of reversing the previous administration’s cruel attacks on the immigration system, the Biden administration is now leading its own shameful assault on refugees seeking safety,” said Laurie Ball Cooper, U.S. legal services director at the International Refugee Assistance Project.

Kimiko Hirota, a policy adviser at the Women’s Refugee Commission, said in a statement that she and her colleagues “are horrified by this updated version of President Trump’s transit ban,” calling the proposal “a slap in the face to families seeking safety and to U.S. and international law.”

Speaking to reporters on background Tuesday, Biden administration officials rejected comparisons to the Trump “transit ban,” which was eventually struck down in federal court, insisting that the proposal is not “a categorical bar on asylum eligibility.”

Rather, officials said the Biden administration is trying to discourage vulnerable migrants from relying on dangerous routes and ruthless smugglers to help them cross the border illegally, by offering them safe and legal pathways to the U.S.

“As we have seen time and time again, individuals who are provided a safe, orderly, and lawful path to the United States are less likely to risk their lives traversing thousands of miles in the hands of ruthless smugglers, only to arrive at our southern border and face the legal consequences of unlawful entry,” the secretary of homeland security, Alejandro Mayorkas, said in a statement.

Administration officials framed the proposal as the best option for preventing what they predict will be a surge in migration to the southern border after the end of Title 42, the pandemic-era public health restriction that has been used to turn away migrants, including asylum seekers, at the southern border more than 2 million times since March 2020. The termination of Title 42 has been repeatedly delayed, due to multiple ongoing lawsuits from Republican-led states who want to keep it in place. It’s currently expected to be lifted on May 11, the day the new asylum rule is slated to take effect.

But first, the government has opened the proposed rule to a 30-day public comment period. So far, the proposal hasn’t yielded public support from Republicans, who have tried to frame Biden’s immigration policies as a wedge issue ahead of the upcoming 2024 elections.

Here’s what you should know about the new proposal, and some of the key questions surrounding it.

Donald Trump at the microphone.
Former President Donald Trump addresses the New Hampshire Republican State Committee's annual meeting on Jan. 28 in Salem, N.H. (Scott Eisen/Getty Images)

What was the Trump transit ban?

Throughout his time in the White House, former President Donald Trump set out to put in place a number of policies to block access to asylum along the U.S.-Mexico border — policies, which advocates point out, that Biden promised to reverse as president.

Among those policies was a rule introduced in 2019 that, with limited exceptions, made anyone who had to pass through another country to get to the U.S. (i.e., everyone except Mexican nationals) ineligible for asylum if they had not applied for and been denied safe harbor in another country along the way.

Advocacy groups successfully sued to block implementation of the “transit ban,” arguing that it violated U.S. law, which guarantees the right to seek asylum for anyone on U.S. soil who expresses a credible fear of persecution in their home country, regardless of how they reached the country. It has since been repeatedly struck down in federal court.

President Biden at a podium marked with the presidential seal.
President Biden gives a speech in the Royal Castle Arcades in Warsaw, Poland, on Feb. 21. (Artur Widak/NurPhoto via Getty Images)

How is Biden’s plan different?

On a call with reporters this week, Biden administration officials pushed back on the suggestion that the new asylum proposal is simply a continuation of Trump’s policies, insisting that “This is definitely different.”

“The purpose of this is not to cut off people from seeking asylum the way the Trump administration was trying to do,” said one official, who spoke to reporters on condition of anonymity.

For one thing, the officials also noted that the Biden administration proposal does not apply to unaccompanied children, and allows for various humanitarian exemptions, including for migrants with acute medical conditions, human trafficking victims and those fleeing "imminent and extreme" danger.” They also emphasized that the presumption of asylum ineligibility created by the new rule is “rebuttable,” meaning that migrants can overcome that presumption by proving that they were denied refuge in another country before reaching the U.S. or were unable to schedule an appointment at an official port of entry before arriving at the border.

Advocates and attorneys who work with asylum seekers have said that while they welcome the exceptions outlined in the Biden proposal, they remain skeptical how easy it will be for those who qualify to access those exceptions.

“The problem with the exceptions is that most of them are legally complex, and you're dealing with an area of the law where literally 99% of these folks do not have representation,” said Jeremy McKinney, president of the American Immigration Lawyers Association.

McKinney told Yahoo News that even with the exceptions, the Biden administration is opening itself up to the kind of legal challenges that the Trump ban faced, by restricting asylum in a way that, he said, “clearly violates” federal law.

“It's just creating a complicating factor on asylum seekers that is not present in the statute,” McKinney said. “And that, ultimately, is the problem.”

A U.S. Border Patrol agent checks  immigrants' identification.
A U.S. Border Patrol agent checks for identification of immigrants as they wait to be processed after crossing the border from Mexico on Dec. 30, 2022, in Yuma, Ariz. (Qian Weizhong/VCG via Getty Images)

What 'legal pathways' are the Biden administration providing for asylum seekers at the border?

Central to the Biden administration’s new asylum rule — and the argument that it’s different from the earlier Trump bans — is the promise that the new restrictions will be offset by expanded access to “legal, orderly” pathways to the United States, and specifically, the ability to request asylum at an official port of entry along the southern border.

Where Trump’s transit ban applied to migrants who tried to seek asylum anywhere along the southwest border, under the proposed Biden rule, migrants who fail to seek protection in a third country would only be considered ineligible for asylum in the U.S. if they tried to cross the border unlawfully, between ports of entry.

Those who present themselves at an official port of entry, on the other hand, would only be considered ineligible for asylum if they failed to schedule an appointment in advance through a smartphone app called CBP One.

Originally introduced two years ago, to help commercial truckers schedule cargo inspections, the CBP One app is now being used by migrants requesting exemptions to Title 42 restrictions, as well as those who have been granted temporary humanitarian parole under a new program that promises to welcome up to 30,000 migrants a month from Cuba, Haiti, Nicaragua and Venezuela.

Under the proposed rule published this week, the administration soon plans to expand implementation of the app “to allow an increasing number of migrants who may wish to claim asylum to request an available time and location to present and be inspected and processed at certain ports of entry.”

Advocates and attorneys who work with migrants along the southern border, however, have raised concerns about the plan’s reliance on the CBP One app, which they criticize as exclusionary and riddled with glitches.

“While the Biden administration has launched a smartphone app for asylum appointments and expanded a temporary parole option for an extremely limited subset of four nationalities, these measures are no substitute for the legal right to seek asylum, regardless of manner of entry,” Krish O’Mara Vignarajah, president and CEO of Lutheran Immigration and Refugee Service, said in a statement Tuesday. “It is generally the most vulnerable asylum seekers who are least likely to be able to navigate a complex app plagued by technical issues, language barriers and overwhelming demand.”

Internal CBP reports obtained by Yahoo News provide further detail on the problems with the CPB One app.

“Thousands of migrants in northern Mexico were unable to schedule CBP One appointments for Title 42 exceptions due to lack of availability, migration stakeholders reported,” states the CBP Indications and Warnings Daily report dated Feb 12.

The same report notes that some migrants “were using ‘auto-clicker’ applications to get appointments as soon as they become available, and slots filled within minutes every morning.” The platform’s process for scheduling appointments also put families at a disadvantage compared to single adults.

The Feb. 4 version of the same CBP daily report says that migrants are increasingly frustrated with the app, citing error messages and issues with connectivity and photo uploads.

The report also notes that “Shelter activists are continuing to warn these issues are leaving migrants susceptible to extortion by actors attempting to monetize the application process.”

Hours before the Department of Homeland Security (DHS) and the Department of Justice announced the release of the proposed asylum rule on Tuesday, Sen. Ed Markey, D-Mass., sent a letter to DHS urging that it “shelve the CBP One app immediately,” writing that “This expanded use of the CBP One app raises troubling issues of inequitable access to — and impermissible limits on — asylum, and has been plagued by significant technical problems and privacy concerns.

“Rather than mandating use of an app that is inaccessible to many migrants, and violates both their privacy and international law, DHS should instead implement a compassionate, lawful, and human rights centered approach for those seeking asylum in the United States,” Markey wrote.

A CBP spokesperson referred Yahoo News’s request for comment to DHS, which declined to address the specific issues with the app highlighted in the internal CBP reports, citing a policy against commenting on leaked documents.

Instead, DHS provided a general statement on the use of the app.

“CBP continues to make improvements to the app based on stakeholder feedback, including updates this week that are specifically intended to make it easier for family units to secure appointments as a group,” a DHS spokesperson told Yahoo News. “The CBP One app is a transparent and publicly accessible way to schedule appointments for migrants seeking to arrive at a land Port of Entry, which disincentivizes illegal crossing in between ports.”

While DHS officials acknowledged that users may experience delays due to the fact that demand for appointments is far greater than the slots available, they’ve also pushed back on claims that the app’s facial recognition technology or language features put any one group at a disadvantage. A DHS official told Yahoo News that even before a Haitian Creole version of the app was launched last week, 40% of migrants who applied for Title 42 exceptions through the CBP One app were Haitian.

A Border Patrol agent talks to some women in a long line of prospective immigrants.
A U.S. Border Patrol agent checks immigrants' ID as they wait to be processed after crossing the border from Mexico on Dec. 30, 2022, in Yuma, Ariz. (Qian Weizhong/VCG via Getty Images)

'The implementation is going to be really key'

In addition to addressing the problems with the CBP One app, McKinney, of the American Immigration Lawyers Association said the Biden administration will have to drastically increase staffing, operating hours and physical capacity at ports of entry, to accommodate the increased demand this new rule is going to create.

Right now, he said, “the demand for people seeking the protection and safety of the United States is relatively spread out, because people can seek asylum in between ports of entry.” But, he warned, that will change when everyone who wants to seek asylum is being funneled to the ports.

At the end of the day, Julia Gelatt, a senior policy analyst at the nonpartisan Migration Policy Institute, said: “What this rule really means for access to asylum at the border completely depends on how possible it will be to get an appointment at a port of entry.

“If those appointments are really restricted, and then, everyone who can't get an appointment (and comes between ports of entry or comes to the port without an appointment) has a really tough road to asylum, then that's really restricting access to asylum,” she added. “If the appointments are easy to get, they keep improving the app, making it available in more languages, fixing the bugs, making the error messages be not in English, but in the language the person is using, all of those things, that could be quite an expansive pathway through which many people can come to into the United States and seek asylum.”

“The implementation is going to be really key,” she said.