Today, the Biden administration added new, harsher asylum restrictions to its June 2024 asylum ban and issued the ban–previously an Interim Final Rule–as a Final Rule. These changes mean more people will die, or face persecution and abuse, after they are blocked from accessing safety at the U.S. border. This announcement also marks a critical juncture in history, as the United States openly flouts international law in the name of politics.

The National Immigration Law Center calls on the administration to reverse course and rescind this Rule and a similarly restrictive Rule issued in May 2023 that, together, have closed the U.S. border to people in need of protection. While these Rules remain in place, NILC urges the administration to take immediate actions to mitigate the harm caused by these Rules, including:

1. Increase the number of CBP One appointments offered across all ports of entry;
2. Ensure that individuals without CBP One appointments are able to approach the ports of entry and present themselves in situations where humanitarian concerns are weighty; and
3. Stop the practice of forcing people through expedited removal processing (including Credible Fear Interviews) in CBP custody. As long as this practice persists, provide lawyers physical access to CBP facilities.

This explainer answers the questions: 1) Who will have access to asylum at the Southwest border under the new Final Rule?; 2) What was the effect of the June Interim Rule?; 3) What changes with the new announcement?; and 4) What’s most important about these developments, and why does it matter?

Under the newly issued Final Rule, who will have access to asylum at the Southwest border?

People arriving at the Southwest border will only be able to access asylum at ports of entry and only with an appointment through the problematic CBP One mobile application (with a few very limited exceptions). CBP One appointment availability is capped; wait times can last up to 8 or 9 months. It is extremely dangerous for asylum seekers waiting for their appointments in Mexico, as people looking to prey on migrants target them for extortion, assault, torture, and rape.

Making asylum access contingent on a CBP One appointment at a port of entry certainly means that the U.S. government is deporting vulnerable asylum seekers back to harm. The International Refugee Convention prohibits restricting access to asylum based on how a person enters a country because people fleeing persecution are “often compelled to arrive, enter or stay in a territory without authorization or documents … or by using clandestine modes of entry.”

Our partners at the Kino Border Initiative shared this illustrative story: “Miritza [pseudonym] and her 2-year-old are indigenous people … [who] had never left their community before being forced out by organized crime. Miritza did not know about the CBP One app, her Spanish is limited, and she doesn’t know how to read or write. She crossed the border and approached Border Patrol agents, who immediately deported her without even trying to understand her or making sure she understood them.”

What was the effect of the June Interim Final Rule?

In June 2024, the Biden administration issued a Presidential Proclamation and Federal Register notice announcing sweeping asylum restrictions that took effect immediately and are subject to active federal litigation. The cornerstone of the Interim Final Rule is an asylum ban that can be triggered and lifted based on an arbitrary numerical calculation relating to border arrivals. Specifically, when the Department of Homeland Security (DHS) encounters an average of more than 2,500 people between ports of entry at the Southwest border over a seven day period, the Rule triggers a border closure that cuts off asylum access to anyone attempting to enter without an appointment. The ban can be lifted if fewer than an average of 1,500 people are stopped at the border for seven consecutive days.

The Rule requires summary expulsion for all others unless they “manifest” – or make known of their own accord – their fear of return. This is a shift from CBP’s long time practice of asking those arriving at the border if they fear return to their country, and has resulted in countless wrongful deportations of people with strong claims to asylum. Those who are found to have “manifested” a fear must meet a heightened standard to be permitted to seek temporary protection known as “withholding of removal.” This limited protection does not allow people to become lawful permanent residents or citizens of the United States, and does not allow for spouses and children of people facing danger abroad to join them in the United States. In order to seek even this limited protection before a judge, however, most people must articulate their legal claim and pass a threshold screening while in CBP custody. This process sets people up to fail and nearly completely prevents access to counsel.

The Rule builds on a previous regulation published by the Biden administration in May 2023 that is referred to by the government as the “Circumventing Lawful Pathways” rule. That rule was intended to be temporary and imposed new, sweeping asylum eligibility restrictions for people who arrived at the Southwest border between ports of entry and/or had traveled between a third country before reaching the United States. Concerningly, the new Final Rule notes that the Biden administration is considering extending and expanding this May 2023 Rule as well, and invites public comment.

What changes with the new announcement?

Whereas the June Interim Final Rule, as draconian as it is, at least conceptually allowed for some of its restrictions to be lifted if fewer than an average of 1,500 people are stopped at the border for seven consecutive days, today’s Final Rule only allows its asylum ban to be lifted if the seven day average stays under 1,500 people for 28 days. The Final Rule also includes in the trigger number all children arriving at the border without a parent or guardian, a change from June’s Interim Final Rule that appears to be designed to minimize the odds that the conditions needed to lift the asylum ban could ever be met. In short, the Biden administration is responding to political pressure by manipulating policy to ensure that the Rule’s asylum restrictions will be permanent for the foreseeable future.

Why does it matter?

1. More people seeking safety at the U.S. border will be sent away to their death. The June rule has and will continue to cause the U.S. government to routinely and summarily deport people with strong claims to asylum back to danger. Researchers at Human Rights Watch and partner advocacy organizations have published numerous examples of these injustices, including a Mexican survivor of gender-based violence so severe as to cause a miscarriage, who CBP quickly deported. Researchers have also documented astounding harassment from CBP officers who have told arriving asylum seekers that “There is no asylum any more,” “We don’t care,” and “There is no asylum and what happened to you is not our problem.” These abuses will persist and, we fear, become normalized.
2. Many people with strong claims to protection will end up with temporary, unstable status in the United States. As long as the Rule remains in place, people unable to wait for a CBP One appointment will have access only to limited protection in the United States in the form of “withholding of removal.” Although accessing this protection is proving nearly impossible for most, those who succeed will lack a path to citizenship and the ability to apply for their spouses and children to join them in the United States, even if these family members are in imminent danger abroad.
3. The United States’s standing in the international community slips daily. Only days ago, the United Nations Refugee Agency issued guidance on the provision of the international Refugee Convention (to which the United States is bound) that prohibits member states from imposing a punishment on asylum seekers for their manner of entry. The guidance is clear that restricting access to asylum constitutes punishment prohibited by the Convention. By issuing the Final Rule, the United States sends a signal to other countries that it is acceptable to violate our obligations under international treaties. As Pope Francis–a critic of U.S. policy at the Southern border – recently said: “[We cannot achieve humane and moral immigration outcomes] through more restrictive laws, nor through the militarization of borders, nor through rejection…Instead, we will achieve it by expanding safe and legal avenues for migrants, by facilitating sanctuary for those fleeing wars, violence, persecution and many calamities; we will achieve it by fostering in every way a global governance of migration based on justice, fraternity and solidarity.”
4. Closing the border to asylum will never constitute a sustainable solution to global migration challenges. There are humane solutions to the challenges at the border, and the American public overwhelmingly supports these solutions when presented the option. We and partners stand ready to work with the administration to implement them.