Last month, the Biden Administration issued a proposed rule that sought to apply five highly complex bars to the initial screenings of asylum seekers when they are apprehended at the border. Just two years prior, the administration had decided it would not be fair to apply these bars during the screenings, where most people are unrepresented, detained, and navigating a new legal system they don't understand. With this proposed rule, the Biden Administration's Department of Homeland Security (DHS) now reversed their position—prompting the question: What changed? 

Neither the law nor the difficult conditions that asylum seekers face upon entry have changed. In fact, asylum access has gotten more inaccessible, since Biden resurrected a series of Trump-era policies—from jailing asylum seekers in Border Patrol facilities where they have no access to lawyers, to imposing a ban on asylum based on travel through third countries or people's inability to obtain a prior appointment through a faulty app. Just this week, Biden added to that grim record, by issuing a Proclamation and new rule that immediately blocks access to most asylum seekers and imposes the highest barriers for asylum screenings seen to date.

Under these existing policies, it has never been harder to seek asylum in the United States. If final, this proposed rule would disparately punish some asylum seekers based on their race, nationality, religion, or LGBTQ+ status and lead to the separation of families, because the U.S. government still separates parents found subject to bars based on unfounded accusations. 

NIJC has represented multiple clients who faced year-long fights to overcome the asylum bars. But those clients had the chance to develop their case with their attorney and present their claim to the judge. DHS now seeks to foreclose these basic safeguards, by imposing the asylum bars when people are most vulnerable—during their screenings hours after their entry. Inevitably, this policy will lead to wrongful returns of people with legitimate claims to asylum and endanger lives.​​

That is why we called on DHS and the Biden Administration to immediately withdraw this proposed rule. Comments are due on June 12, 2024 before 11:59pm EST. 

To read NIJC's analysis of the proposed rule, see here.

To read NIJC's comment, see here.