New Asylum Regulation an Unacceptable Violation of U.S. Responsibility toward People Fleeing Persecution

Statement from Refugees International’s Director for the Americas and Europe Yael Schacher:

“The asylum regulation issued by the Departments of Justice and Homeland Security yesterday will do little to “secure the border.” Rather, it effectively denies eligibility for asylum to anyone unable to secure a CBP One appointment and betrays the legally enshrined right to seek asylum on U.S. soil.

This regulation will increase the numbers of asylum seekers unable to access protection, irrespective of the merits of their asylum claims. The regulation will also make restrictions on eligibility harder to lift, permanently weakening the essential purpose of U.S. asylum.  

The regulation maintains the requirement that asylum seekers “manifest” fear in order to be referred to a credible fear screening. As Refugees International and others have documented, this policy has led CBP agents to disregard expressions of fear and arbitrarily expel asylum seekers without screenings for harm in likely violation of U.S. and international law.

The Departments concede that, under the regulation, people who are refugees will be denied eligibility for asylum if they cross the border without a CBP One appointment. This is an unacceptable violation of the U.S. responsibility to protect people fleeing persecution. 

The regulation claims it “is part of the United States’ efforts to act as a regional leader in responding to increased migratory flows.” In truth, it does the opposite. As the UN High Commissioner for Refugees notes, “Limiting or blocking access [to asylum] is a violation of international refugee law and the humanitarian principles to which the United States has long been a leader.” 

Though encounters at the U.S. border are down, the regulation justifies extending the bar on asylum eligibility because “Mexico’s government reported a much smaller decrease in encounters,” indicating that “migrants continue to travel towards the U.S. border in large numbers.” On a recent trip to Mexico, Refugees International met a Nicaraguan woman who suffered sexual assault and continued harassment but is forced to wait for a CBP One appointment to access the U.S. asylum system.

If she crossed the border without an appointment, she likely would not merit an exception to the bar on asylum eligibility in the regulation, the slim reed upon which the Departments hinge its legality. Her suffering is not captured in the regulation’s focus on disincentivizing irregular migration, nor in Secretary Mayorkas’s attention to the presumed “risk calculus” underpinning asylum seeking – which assumes people can wait rather than seek immediate refuge. 

In Mexico, Refugees International met many other asylum seekers—from Venezuela, Afghanistan, Honduras—who were sick and living on the street, because the Mexican government considers them irregular migrants subject to deportation and provides them with no access to basic services and work. The Biden administration must do much more to ensure the security and well-being of people in Mexico waiting to enter the United States through a phone application it has made the gatekeeper to the asylum system.  

President Biden and Vice President Harris should also work with Congress on revamping the asylum adjudication process—so that it is truly fair and protects the persecuted—and supporting American communities to welcome asylum seekers.”  

For more information or to schedule an interview, please contact Etant Dupain at edupain@refugeesinternational.org.