The Abrogation of Asylum

Migration and border control are amongst the most pressing topics throughout the regions in this global super-election year. This has been the case in the EU parliamentary elections in June and in the highly anticipated elections in November in the USA.

How to tackle this issue seems to be the million-dollar question and the urgency of this topic seemingly has pushed President Joe Biden – who previously pledged to reverse restrictive migration policies – to drastic measures. After failed attempts to pass a bipartisan immigration deal earlier this year, Biden is now in a race with Republican candidate Donald Trump to show a “tough stand” on the matter while ignoring core refugee law principles and arguably with little lasting effects on numbers of arrivals at the southern border.

Unpacking Biden’s “Asylum Ban”

On June 4, Biden announced an executive order to bar “migrants who cross [the] Southern border unlawfully from receiving asylum.”

In detail, the new rule imposes significant adjustments to the existing legal landscape at the border.

First, the policy sets a numerical limit on asylum seekers at the US-Mexico border between ports of entry and significantly restricts the asylum screening process. If US authorities encounter more than 2,500 people per day who have entered irregularly into the USA over seven days, the order bans anyone without an appointment via the CBP One app from applying for asylum. This ban stays in effect until 14 days after the average drops below 1,500 people per day for seven consecutive days. Since less than half of the last 296 months have had fewer than 1,500 people per day, the new rule likely amounts in effect to an “asylum ban” between ports of entry.

In particular, the rule bars most individuals, even if they meet the refugee definition, from applying for asylum if they try to enter without an official appointment with the CBP One app . Exceptions include unaccompanied children, trafficking victims, and those with acute medical emergencies or imminent threats. The policy aims to ensure that asylum seekers wait “their turn” to apply, promote order and security, and to deport those directly to their country of origin who cross irregularly.

Secondly, the new executive action shifts the burden to asylum seekers to declare fear of persecution. Border agents are no longer required to ask if they fear persecution, placing a burden on asylum seekers who may be unaware of this rule or uncomfortable expressing their fears to armed guards.

These new restrictions are likely to violate domestic law (the National Immigration Justice Center and ACLU have already announced to challenge the order in Court) and are incompatible with core international refugee law standards.

Exceeding the Limits of Presidential Power

First, at the domestic level, it is likely that the executive order overstepped the statutorily defined scope of presidential power. The new policy is based on Section 212(f) of the 1965 Immigration and Nationality Act (INA) which holds that “[W]henever the President finds that the entry of any aliens […] would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens […], or impose on the entry of aliens any restrictions he may deem to be appropriate.”

While this provides a broad basis for restrictions, it is not limitless. In the context of the new executive order, it is important to know that INA § 212(f) does not allow the president to interfere with or subvert other parts of the INA or other federal laws (see, e.g., US Supreme Court in Trump v. Hawaii (2018). That includes anyone’s right to seek asylum who is present in the United States “whether or not [s/he entered] in a designated port of arrival”, codified in INA § 208. Former President Trump made use of exactly this power to impose similarly harsh restrictions, which were struck down by domestic courts, stressing that the president overstepped the authority granted under the provision.

The Duty Not to Penalize Irregular Entry

From an international refugee law perspective, the restrictions also violate the 1951 Refugee Convention and its Protocol, to which the USA is a party.

First, the numeric limitation of asylum applications together with the duty to wait for months for an appointment to lodge a claim for protection is a violation of Art. 31 (1) Refugee Convention, the duty not to penalize the irregular entry of refugees. In this context, “penalties” are not limited to criminal sanctions and include any “procedural detriment to the person seeking asylum” (UNHCR, p. 7). The provision also requires states to proceed promptly with the determination of refugee status through a fair and efficient asylum procedure and applies to individuals intercepted at the border (ibid). A fair asylum procedure requires at least a prompt and individual assessment of each case, a safe environment, access to legal assistance as well as an interpreter alongside a right to effective remedy.

In the context of the new restrictions, denying those who entered between ports of entry the ability to apply for asylum constitutes a penalization in the sense of Art. 31 (1). Furthermore, shifting the burden to express fear to asylum seekers in circumstances of interceptions by armed border guards without informing them of this obligation contradicts the notion of a fair asylum procedure. This is exacerbated by the fact that even before applying for asylum, there is no fair and efficient access to such a procedure. The CBP One app, which provides appointments to present oneself as in need of protection, is often malfunctioning, only available in a few languages, and excludes people who are illiterate or do not possess phones. Having volunteered at the US-Mexico border in December 2023, I have witnessed firsthand how these measures violate this core provision of refugee protection and put vulnerable individuals and families in great danger for months.

The Violation of Non-Refoulement

Second, the restrictions on entry and the deportations without any individual risk assessment violate Art. 33 (1) of the Refugee Convention. This article entails the customary law non-refoulement principle which obliges states not to turn a refugee away if their life or well-being is at risk upon removal.

It is disputed whether the principle applies to individuals waiting at the border for their appointment. Because they are not yet present on the state’s territory, this would require the principle to apply extraterritorially, which remains a subject of debate. This includes the question of whether a denial of entry that threatens an individual’s well-being is a violation of international law as opposed to an expulsion or deportation from US territory, where the principle undisputedly applies. UNHCR has affirmed the extraterritorial applicability of the non-refoulement principle. Following UNHCR’s approach, the denial of entry and the subsequent obligation for individuals and families to wait for 4-7 months in very dangerous and inhumane circumstances to claim asylum is thus a violation of this core principle. Especially those fleeing cartel violence continue to be exposed to great danger, are continuously threatened, extorted, raped and some even killed while waiting for their turn to ask for protection.

However, it is undisputed that deporting those who have entered between ports of entry without any individual risk assessment does violate the non-refoulement principle. In many cases, neither Mexico nor their home country is a safe place for them, with any such determination needing to be made individually before every involuntary return.

Defeating the Refugee Convention’s Object and Purpose

Third, denying the possibility to claim protection at the border in a situation of persecution for the vast majority of asylum seekers also violates the object and purpose of the Refugee Convention itself which is to ensure “that refugees can effectively gain access to international protection”. To be effective, access ought to be timely and include due process, such that individuals can access protection as they are escaping persecution and not when the CBP One app determines that it is their turn.

What are the Alternatives?

It is an important election year in the US and calls for a solution to the “border crisis” are getting louder by the day. The high numbers of arrivals reflect a global trend in a rise of border crossings over the last years, driven by uneven economic recovery from the pandemic, an escalation of conflict and insecurity, and climate change. Hence, any solution that purely focuses on fortification and deterrence is unlikely to succeed in the long run. Having worked on both sides of the border with asylum seekers, I know that many are so desperate for the protection of their lives and their children’s, that neither this rule, nor detention, nor any other restriction will stop them from trying to enter the US again and again.

So maybe it is time to test what advocates for refugees’ rights have demanded for years: an orderly, humane, and consistent approach to humanitarian protection and border management, which improves the Border Patrol’s capacity for humanitarian processing, establishes legal and safe pathways and increases the number of asylum judges to decrease the massive backlog of cases (the average asylum case in immigration court now approaches 4-6 years from the initiation to the final determination of an asylum hearing). These solutions have to be combined with long-term approaches in foreign policy to combat the uneven effects of climate change displacement, inequality, and violence. None of this is easily achieved, but it may be worth a shot after the approach to continuously restrict refugees’ rights has proven to be ineffective for years.