The Biden Administration Passes New Asylum Ban in 2023

On May 16, 2023, the Biden Administration published a final rule to modify the prior administration’s asylum ban (88 Federal Register 31314). It’s worth noting that the rule was revised on May 26 and is subject to litigation, meaning that it’s crucial for U.S. immigrants and their loved ones to stay as informed as possible about potential updates to the new 2023 asylum ban and its legal implications going forward.

What Did the Biden Asylum Ban Do?

In broad terms, the Biden Asylum Ban requires asylum seekers to enter the United States lawfully, with a visa, through humanitarian parole, or through a pre-scheduled appointment with Customs and Border Protection (CBP) using a smartphone application called CBP One. It’s worth noting that the CBP app isn’t globally available—it’s only accessible in a few languages and only works with certain phone and internet types, meaning that many asylum seekers won’t have access to it.

Even after the Biden Administration took purposeful strides toward overturning various policies established by the Trump Administration, the new Biden-era rule for asylum seekers is similar to Trump’s own transit ban for asylum seekers in 2019—one that was ultimately blocked on the grounds of being inconsistent with existing asylum laws in U.S. immigration.

Ultimately, this raises the legal stakes for those who need access to U.S. protections or seek asylum at any point in the future. Sadly, many noncitizens will likely be negatively affected by this new ban, including anyone who:

Is apprehended in contiguous waters;
Enters without inspection (EWI) between ports of entry (POEs); or
Presents at a POE at the U.S.-Mexico border without a visa or a pre-scheduled appointment.

When Did the Biden Asylum Ban Take Effect?

After proposing the new rule in February 2023, the Biden Asylum Ban officially went into effect on May 11, 2023. Anyone who enters the United States at the southern border between May 11, 2023 and May 11, 2025, there is a presumption that the Asylum Ban will apply unless they are eligible for an exception to the rule or can rebut the presumption, as discussed in more detail below. Its stated purpose is to “encourage migrants to avail themselves of lawful, safe, and orderly pathways into the United States, or otherwise to seek asylum or other protection in countries through which they travel.” To achieve its objective, this rule assumes that individuals are not eligible for asylum in the U.S. under any of these conditions:

The person hasn’t yet exhausted every legal avenue to enter the United States; or
The person did not seek asylum in the countries through which they passed while traveling to the United States.

The Biden Asylum Ban created a two-tiered system for asylum seekers: those who comply with “lawful pathways” and those who don’t. Unfortunately, even after taking strides to overturn immigration and asylum policies established by the Trump Administration, the new Biden-era rule proposes similar conditions to Trump’s 2019 transit ban for asylum seekers.

The Asylum Ban does not apply to those who applied for asylum in other countries, but were ultimately denied. Still, the rule explicitly states that the resulting denial must be on the merits, meaning that the asylum claim cannot be abandoned. Given the underdeveloped asylum systems and countless dangers that asylum seekers encounter while en route to America, it’s unlikely that many U.S. asylum seekers will rebut the presumption in this way.

While the new rule doesn’t enforce a total ban on immigrants from seeking asylum in the U.S., it does make it significantly more challenging for noncitizens and their loved ones to find safety in the United States—especially for families forced to navigate through other countries to arrive in America.

Exceptions to Biden’s New Asylum Ban

Certain individuals may be exempt from the Biden Asylum Ban. General exceptions include:

Unaccompanied children – The rule applies to unaccompanied children who entered the country while under the age of 6. If the asylum seeker met this definition at the time of entry into the United States, an exception can be made for that person.
Mexican citizens – Immigrants from Mexico (or stateless people whose last habitual residence was in Mexico) are not subject to the Biden Asylum Ban because they don’t travel through another country while en route to the U.S.
Individuals who enter with parole – Under the DHS parole approval process, exceptions can be made for those who use the Cuban, Haitian, Nicaraguan, and Venezuelan parole process.
Individuals who present at a Port of Entry with a CBP at a pre-scheduled appointment – This exception is intended to encourage asylum seekers to use the CBP One app instead of EWI (“entering without inspection”) or presenting at a port of entry without an appointment.

Why Biden’s 2023 Asylum Ban Is Problematic for Immigrants

According to the Biden Asylum Ban, “lawful pathways” are defined as entering the U.S. through regular lawful channels, such as with a tourist visa or conditional green card. However, the obvious problem with this bifurcated system is that the majority of asylum seekers lack access to these lawful pathways and can’t qualify for asylum without them. Opponents of the new Asylum Ban have voiced many legitimate concerns, such as:

The rule doesn’t take into account the reality of conditions for asylum seekers.

Migrants en route to the U.S. are encountering more and more issues in the countries that the U.S. government now requires them to seek asylum in, including xenophobia and human rights violations.

“This proposed rule is shifting responsibility for protection to other countries that may just follow the United States’ lead, leading to chain refoulement rather than increased protection,” said Yael Schacher, the director for the Americas and Europe at Refugees International.

The ban violates various U.S. laws.

The Biden Asylum Ban is already facing multiple challenges in court, with complaints already filed by the ACLU, CGRS, and NIJC claiming that the new rule is unlawful. Many opponents argue that the new rule also violates the 1980 Refugee Act.

“To comply with the [UN Refugee] Convention, the United States must have a uniform and fair procedure to determine eligibility for refugee status as defined in Article 1 of the Refugee Convention and incorporated in the 1980 Refugee Act,” Yael Schacher pointed out in her article at Refugees International.

Katrina Eiland, managing attorney with the ACLU immigrants’ rights project, had her own words to add about Biden’s new ban. “The Biden administration’s new ban places vulnerable asylum seekers in grave danger and violates U.S. asylum laws,” she stated. “We’ve been down this road before with Trump. The asylum bans were cruel and illegal then, and nothing has changed now.”

Contact Our Fierce Advocate to Ensure Your Voice Is Heard

At Maghzi Law Firm, LLC, we’re strong believers that a person’s worth has nothing to do with where they came from or which U.S. documents they have. No matter what, our compassionate firm is here to truly listen and fight tirelessly to make your American freedom a reality. Whether you’re hoping to reunite with family in the States or require a strong defense for removal orders, Attorney Maghzi has the specialized legal knowledge and skills to guide you in the right direction and advocate on your behalf. Visit the National Immigration Project for more information.

U.S. immigration can be complex and even discriminatory. Turn to an immigration attorney who’s been there. Call (843) 800-2750 to request a consultation.