Can Biden’s New Asylum Policy Help Solve the Migrant Crisis?

In February 2023, President Joe Biden unveiled a new asylum policy that aims to discourage unauthorized border crossings into the United States. His administration says the measure is necessary to handle a growing number of border crossings, but critics say it could have deadly consequences for migrants who have a legal right to seek protection.

What is the Biden administration’s new asylum policy?

Under the new rule, border authorities will deny asylum to most migrants who arrive at an official port of entry along the U.S.-Mexico border without having first applied for asylum in a third country traversed along the way. Migrants who do not schedule an appointment at a point of entry or use other available humanitarian programs will be deported to their home countries. 

The policy will include exemptions for people with medical emergencies, children traveling alone, and Mexican nationals. (About 11 percent of all pending asylum cases in 2022 were for Mexican citizens.) The measure is expected to take effect in May when Title 42, a policy that denies asylum on pandemic-related grounds, is set to end. Immigration experts say the proposal is likely to be challenged in court.

What problem does it aim to address?

Biden took office pledging to reform the U.S. immigration system and restore asylum access that had been curtailed under his predecessor, President Donald Trump. However, a growing influx of migrants crossing the border has upended those plans. Illegal border crossings surpassed 2.3 million in fiscal year 2022, an all-time high, while the backlog of asylum cases pending in U.S. immigration courts currently sits at more than 820,000, the most on record. The Biden administration hopes that redirecting that flow to official ports of entry will overcome the public perception of chaos at the border.

U.S. officials say that, absent any policy changes, migration at the border is likely to surge after Title 42 is lifted in May, with illegal border crossings reaching as much as thirteen thousand per day. More than 2.6 million migrants have been deported under Title 42, and efforts to terminate it have been repeatedly delayed by multiple ongoing lawsuits from Republican-led states.

How does it compare to Trump’s approach to asylum policy?

Trump took several steps to significantly reshape asylum and border policy. These included deferring asylum applications [PDF], a tactic known as “metering”; enforcing the so-called transit ban [PDF] that denied asylum to most migrants at the southern border (though it was later struck down in court); and launching the Migrant Protection Protocols, also known as the “Remain in Mexico” program, which required migrants to wait in Mexico while their immigration cases were processed in U.S. courts. Additionally, Trump and several Central American nations negotiated “safe third country” agreements, which sought to force asylum seekers who traveled through those countries to return to them. However, only the agreement with Guatemala was implemented, though it was later terminated in 2021.

While Biden’s proposal similarly restricts the number of asylum seekers who can seek protection in the United States, officials have rejected comparisons to the Trump administration’s attempts at a near-total asylum ban. They insist that the new policy allows for various exemptions on humanitarian grounds and that the administration has made alternative legal pathways available, including humanitarian parole for citizens of Cuba, Haiti, Nicaragua, and Venezuela. They also characterize the two-year order as an emergency measure that is designed to be temporary.

What are the criticisms?

Critics, including civil and human rights groups and some high-ranking Democrat lawmakers, argue that the policy endangers the lives of migrants who cannot wait for their asylum applications to be processed due to unsafe conditions in their home country. They say it undermines U.S. immigration law, which guarantees migrants the right to seek asylum in the United States if they fear persecution at home. “This policy will effectively prohibit most asylum seekers from exercising their right to seek safety in the U.S., and will force many vulnerable people to remain in situations that could endanger their lives,” Mark Hetfield, president and CEO of the Hebrew Immigrant Aid Society (HIAS), said in a statement.

Many opponents also argue that the exceptions are too narrow and that the alternative pathways are likely to be insufficient, including the untested mobile app made for this purpose. This could lead many applicants to be presumed ineligible unless they can prove they were refused refuge in another country, potentially a tall order. Some Democrats in Congress have instead called for expanding asylum availability.

Republican lawmakers, meanwhile, have criticized Biden’s handling of the border and threatened to impeach Secretary of Homeland Security Alejandro Mayorkas. However, the newly Republican-controlled House of Representatives is facing its own internal divisions over asylum restrictions proposed by Republicans.