ARGUMENT: NEW BORDER RULESOpen Questions, Legal Hurdles for Biden’s New Border Rule

The Biden administration announced on May 16 a newborder rulethat creates new pathways for lawful entry and limits access to asylum for unauthorized entrants. Shalini Bhargava Ray writes in Lawfare that the rule takes important steps to create alternatives to unauthorized entry for those seeking refuge, but serious questions remain about the viability and practical accessibility of those pathways. The rule and related policies also face challenges from both sides of the political spectrum, with the ACLU assailingthe rule as a violation of the Immigration and Nationality Act (INA), the Administrative Procedure Act (APA), and international law, and Florida challengingrelated Customs and Border Protection (CBP) guidanceon use of the executive’s parole power to allow noncitizens into the country on a temporary basis. 

Ray continues:

The new border rule establishes a presumption of ineligibility for asylum for noncitizens who cross the southwestern land border with Mexico or adjacent coastal borders without authorization between May 11, 2023, and May 11, 2025, after traveling through a third country that is a party to the UN Convention Relating to the Status of Refugees or the 1967 Protocol to that treaty, barring narrow exceptions. Specifically, noncitizens are now presumed ineligible for asylum if they failed to “avail[] themselves of an existing lawful process,” failed to “present[] at a port entry at a pre-scheduled time using the CBP One app,” or failed to apply for asylum in a third country through which they have traveled (usually Mexico). In essence, migrants are expected to seek asylum in a third country or, alternatively, make an appointment with CBP at a port of entry. 

The new rule also provides the basis for “sweeping new actions” to create pathways for lawful entry and resettlement in the United States, Canada, and Spain. The centerpiece of this effort is the creation of regional processing centers, where officials can direct asylum-seekers to refugee resettlement opportunities and assist with making appointments at U.S. ports of entry.
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The question becomes whether these new limits on asylum, leavened with greater opportunities for resettlement, appointments through the CBP One app, and additional pathways for legal entry, will pass legal muster. 
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Aside from potential legal trouble, the practical challenges in achieving the rule’s objectives are substantial.

She concludes:

Access to asylum has long been intertwined with unauthorized entry. For reasons I have explored elsewhere, states providing refugee protection typically do not offer an asylum visato enable a noncitizen to travel lawfully to the state of refuge to apply for asylum. This leaves most noncitizens fleeing persecution with few options for reaching safety, leading to reliance on unauthorized migration and, in some cases, hiring smugglers. Unauthorized entry is dangerous for asylum-seekers and disfavored by government officials and the public. Accordingly, some observers have hailed the Biden administration’s use of immigration parole authority as “smart.” But the far-reaching presumption of asylum ineligibility for those who do not access these new pathways—perhaps because the pathways prove inaccessible in practice—stands to dismantle asylum “as we know it.”