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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 7,000.
But while the interim policy put in place in June would allow asylum processing to reignite 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 permanency 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 kick off 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, pre-pandemic 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 ACLU and the American Immigration Lawyers Association, in response to the executive measure.
Administration officials dismissed those claims, including allegations that complicating access to asylum is a violation of the 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 non-citizens 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.
English (US) ·