The United States received a record 478,885 asylum applications in 2023 (U.S. Department of Justice) but granted only 31,620 requests—or 15.14% of applicants. As of last year, an additional 937,611 applications were pending.
These figures represent a sharp increase from years past. In 2022, 253,834 applications were filed, compared to only 32,897 in 2010.
The response
Even though U.S. law does not limit asylum applications, the previous administration, former President Donald J. Trump responded with what amounted to an asylum ban, effectively preventing those who crossed the southern border from seeking asylum. The courts quickly ruled the ban unconstitutional.
Now, President Joseph R. Biden has implemented his own “Asylum Ban.”
What is Biden’s ‘Asylum Ban’
Biden’s Asylum Ban is a policy proclamation that effectively banned certain groups of migrants from claiming asylum. If a person enters the United States at a place other than an official checkpoint, if they do not have a CBP One appointment, or if they have transited through other countries, the applicant may be prohibited from seeking asylum.
Background and Context of the Asylum Ban
Seeking asylum is a human right. The United States recognizes asylum in 8 U.S. Code § 1158, which says that a noncitizen physically present in the United States may apply for asylum if they were persecuted or have a reasonable fear of persecution in the future in their country based on protected ground. A person does not need to arrive at an official port of entry to make an application, but they must do so within one year of their arrival in the United States unless they meet certain exceptions.More people are seeking asylum in the United States than ever before.
In his June 5, 2024, Proclamation on Securing the Border, President Biden cites these factors:
- Economic conditions
- Violence
- Climate change and related weather
President Biden says the ban is necessary to efficiently process arriving migrants and to prevent lengthy detention upon arrival. He calls the current asylum and immigration system “simply broken,” noting it is not meeting the needs of the country.
The first Biden Asylum Ban was announced on May 16, 2023. It came as the United States returned to normal processing of noncitizens after temporary changes during COVID-19.
On June 5, 2024, the Biden Administration announced updates to discourage people from entering the United States at the southern border to seek asylum unless an exception applies.
Department of Homeland Security (DHS) and Department of Justice (DOJ) rules create a presumption of ineligibility for those who do not seek asylum through lawful pathways.
Today, applicants must navigate a tricky CBP One app to make an appointment, then appear at a designated place and time for processing. For those fleeing persecution and inhumane conditions, this often is not possible.
Key Provisions of the Asylum Ban
The June 5, 2024, Proclamation on Securing the Border says that:
- Entry of noncitizens into the United States from the southern border is suspended and limited, effective June 5, 2024.
- DHS will monitor encounters with noncitizens.
- The Proclamation will stop 14 days after a seven-day average of less than 1,500 encounters per day.
- The suspension and limitation will apply when DHS monitoring reveals a seven-day average of 2,500 or more encounters per day. It will continue until the number of encounters again drops under the standard.
- Unaccompanied children from non-contiguous countries do not count as encounters.
- The suspension applies to noncitizens, except:
- Noncitizen U.S. nationals
- Lawful permanent residents
- Unaccompanied children
- People subject to severe human trafficking
- Anyone with a valid visa
- Anyone with lawful entry or admission to the United States
- Someone presenting at a port of entry at a scheduled time and place, including U.S. Armed Forces personnel and associates, U.S. government employees or contractors, accompanying family members, visa holders, and people with visa waivers
- DHS may determine what is appropriate to allow for entry of noncitizens who arrive at a southwest border of the United States. They may make an allowance based on the totality of the circumstances, including public safety, humanitarian, public health, and personal reasons.
- Being granted an exception does not impact the noncitizen’s admissibility other than for the Proclamation.
- DHS has the authority to implement the Proclamation and may issue orders and regulations as needed.
Impact on Asylum Seekers: Short-Term and Long-Term Effects
In the short term, the Biden Administration says the ban is effective. They say that migrant arrests exceeded 3,100 per day in June of 2024, making processing times slow and subjecting families to difficult conditions at the border. President Biden says that the action is necessary because the United States Congress has failed to reform immigration laws. He says that more legal paths to entry and expedited processing are necessary.
Critics say that legitimate applicants are turned away to face danger and uncertainty at the border. They say that asylum is a matter of international protocol and that the United States has agreed to follow the protocol. They say that the ban runs counter to official U.S. immigration law and human rights.
Legal Challenges and Controversies Surrounding the Ban
Efforts by the Trump Administration to implement a ban were met with harsh criticism from the courts, including the U.S. Supreme Court (Trump v. Hawaii, (2018)). However, the Biden Asylum Ban has seen some legal success, being upheld by a 2-1 vote of appellate judges in the 9th Circuit Court. Additional legal challenges are expected.
How the Asylum Ban Affects Immigration Policies
From 2014-2019, more than 83% of those screened during expedited removal proceedings passed standards for fear of persecution or grounds for asylum, withholding of removal and Convention Against Torture. These individuals were ineligible for removal via the expedited process. Fewer than 25% of them were ultimately granted asylum.
Today, with the rebuttable presumption of ineligibility in place, the pass rate has dropped to 52%. The Biden Administration says that even this is not enough, while critics say that too many applicants are being turned away to face persecution and danger in the places they fled.
Contact an Experienced Asylum Lawyer Today
If you are seeking asylum, it is critical to work with an experienced asylum lawyer. At Getachew & Ansari Immigration Attorneys, P.C., we are up to date on all the latest developments in the law. You can count on us to know the latest about the Biden Asylum Ban and legal challenges to the ban. Our office has represented many asylum seekers and will continue to fight for their rights, arguing exceptions and eligibility for asylum. Our clients are in the California area and located throughout the world. Contact us now.
