Border Criminologies statement on the Biden Administration’s proposed changes to the US asylum system

Image by Bill De La Rosa

On Tuesday, February 21st the Department of Justice and the Department of Homeland Security announced a Notice of Proposed Rulemaking (NPRM) that would make significant, damaging changes to eligibility for and processing of asylum in the United States of America. The rule would implement a new asylum transit ban, barring nearly all claims from those who cross the US-Mexico border without authorization or who do not claim protection in the countries they transit through on their way to the United States of America.

Specifically, the new rule would dramatically limit eligibility for asylum to nationals of one of five countries currently eligible for the parole programs recently announced by the Biden Administration, those who have pre-registered at a port of entry via CBP, or who have had asylum claims rejected in countries of transit. For asylum seekers who do not meet one of these criteria, the new rule would introduce a ‘presumption of asylum ineligibility’ and increase the threshold of past persecution necessary to make a successful claim. Alarmingly, administration officials have announced that they intend to bring the new rule into effect on May 11th, immediately after the termination of Title 42, an arcane public health statute that has allowed US Customs and Border Protection to immediately return migrants to Mexico without allowing them to seek humanitarian protection.

During his presidential campaign, President Biden committed to protecting the right to claim asylum in the United States, yet this new rule would do the opposite. Though slightly more limited in scope, and, according to the Biden administration one that offers alternative pathways, the changes proposed to asylum eligibility and processing are almost identical to a similar transit ban instated by the Trump Administration and blocked by the Ninth Circuit Court of Appeals in 2020.  In light of the Ninth Circuit decision on that earlier policy, the legality of this new plan is also questionable.

In the short term, the Biden Administration may claim a reduction in the number of people seeking asylum at the US-Mexico border as a political victory. In the long term, however, there is a wide body of empirical evidence from the US-Mexico border and borderlands across the world that attempts to assert control through deterrence policies will only lead to more border violence, and more deaths of vulnerable people. Indeed, this proposed rule represents the concerning acceleration of a global trends towards policy and legislation undermining rights to protection described by the scholar Alison Mountz as the ‘slow death of asylum.’  

The Border Criminologies Research Network strongly condemns this proposed rule. It is part of a broader trend of Global North countries pushing responsibility for refugees of colour onto Global South countries.  Rather than investing billions in border militarization and deterrence, Federal funds would be better spent to create a robust and genuinely humanitarian asylum system that would allow the United States to meet its obligations under domestic and international law. We, therefore, urge the US government to rescind this rule and commit to honoring commits to asylum and humanitarian protection under domestical and international law.

Signed, Border Criminologies