The Biden administration announced Monday it will expand its asylum restrictions at the U.S.-Mexico border, cementing tougher standards that will cut off access to protections for many migrants.
Monday’s rule finalizes an earlier policy that cut off access to asylum for those who crossed in between ports of entry if border figures ticked above a 2,500 average over the course of a week.
But while the interim policy put in place in June would allow asylum processing to restart once border crossings averaged 1,500 over seven consecutive days, the new rule enacts a much tougher standard, requiring that metric be sustained for 28 straight days.
It’s a standard that officials from the Department of Homeland Security said is designed to avoid “volatility” at the border.
However, border crossings have yet to decrease below the official threshold for seven days, much less for a 28-day period.
By upping the standard even as the lower one was never met, officials are raising questions about the permanence of a policy promoted as a crisis response to be used only during periods of high border traffic.
Yet officials said Monday’s measure would serve as a buffer for any dips in border traffic, noting that the seven-day average under the policy since the summer kickoff is about 1,800 crossings per day.
“This increase … ensures that the drop in encounters is a sustained decrease and not the result of a short-term change, such as a short-term holiday downturn or a decrease due to an extreme weather event,” an official told reporters.
Officials also set the bar for acceptable border crossing levels through a historical, prepandemic lens, rather than as a product of the 2021-2024 period of increased regional migration.
“If you look back to encounters before the pandemic, you will see a number of months where the level of encounters was below this threshold,” an administration official told reporters on a call Monday.
“We do think that this threshold is attainable, and that as outlined in the rule, it kind of represents the capacity point at which or under which point the immigration system is resourced to appropriately manage and respond to the level of encounters we’re seeing on the border.”
Still, the restrictions, which severely limit migrants’ access to asylum protections, have been kept in place since the initial proclamation.
In practice, the Biden administration restrictions reflect some of the more stringent measures proposed in the failed bipartisan Senate border security deal, which was panned as enshrining violations of international law.
The June rule was also subject to similar criticism.
“The Rule flouts domestic asylum law and the United States’ obligations under the Refugee Convention, and will face immediate legal challenge in the courts,” wrote representatives of civil rights and immigration law organizations, including the American Civil Liberties Union and the American Immigration Lawyers Association, in response to the executive measure.
Under the Refugee Convention, it is illegal to punish asylum seekers for illegally crossing a border — a point highlighted in policy guidance issued Friday by the U.N. High Commissioner for Refugees.
“The Refugee Convention says the very nature of being a refugee often means that people have to use irregular manners of entry to find safety in another country, right?” said Heidi Altman, director of policy at the National Immigrant Justice Center.
“And you can’t punish a person — governments can’t punish a person for having had to do that because it’s part and parcel of the nature of flight from persecution. And in this recent guidance, the United Nations has clarified that precluding someone from asylum eligibility because of their manner of entry is a manner of punishment that the convention prohibits.”
Administration officials dismissed those claims, including allegations that complicating access to asylum is a violation of the U.N. Convention Against Torture, an international human rights treaty in place since 1987.
“Both the interim final rule and the final rule uphold our international obligations and commitments to not return noncitizens who could be persecuted or tortured,” an administration official told reporters.
“I do want to be clear that asylum remains available to individuals who, while these measures are in place, are using lawful pathways and processes, as well as to individuals who meet the exceptions, those who find themselves in certain exceptionally compelling circumstances, unaccompanied children,” said the official, adding that the measures would be lifted when the lower border encounter thresholds were met.
While exceptions for unaccompanied minors remain in place — that is, minors will be processed according to asylum law regardless of their form of arrival — those minors will now count toward the number of encounters used to determine whether the 28-day threshold is being met.
That’s a change from the original June proclamation, when minors were excluded from the count for the seven-day threshold.
The Biden administration does have other pathways for migrants to seek asylum, including at ports of entry for those who have secured appointments under the CBP One app.
They’ve also allowed citizens of Cuba, Haiti, Venezuela and Nicaragua to enter the country on a temporary, two-year basis, if they are able to secure a U.S.-based financial sponsor.
Still, advocates say those limited programs do little to counter a change in border management vision from one of human rights protections to a threat mindset.
“I think what happened today is not just it’s not just a tweak or a change or a finalization of some — it’s not just like a process step. It’s a historically significant marker, because whether they’ll admit it or not, it’s the administration saying, ‘We’re making these sweeping asylum restrictions on the border permanent for as far as the eye can see, we are standing against what the international community has said all governments must do in a cooperative manner to protect refugees and we’re going to continue standing there,’” said Altman.
“So it’s a fundamental shift in the way the United States asylum system works, and it is normalizing a road that the Trump administration put us on.”
—Updated at 3:37 p.m.