Can Biden’s New Asylum Policy Help Solve the Migrant Crisis?

How Does It Compare to Trump’s Approach to Asylum Policy?
Trump took several steps to significantly reshape asylum and border policy. These included deferring asylum applications [PDF], a tactic known as “metering”; enforcing the so-called transit ban [PDF] that denied asylum to most migrants at the southern border (though it was later struck down in court); and launching the Migrant Protection Protocols, also known as the “Remain in Mexico” program, which required migrants to wait in Mexico while their immigration cases were processed in U.S. courts. Additionally, Trump and several Central American nations negotiated “safe third country” agreements, which sought to force asylum seekers who traveled through those countries to return to them. However, only the agreement with Guatemala was implemented, though it was later terminated in 2021.

While Biden’s proposal similarly restricts the number of asylum seekers who can seek protection in the United States, officials have rejected comparisons to the Trump administration’s attempts at a near-total asylum ban. They insist that the new policy allows for various exemptions on humanitarian grounds and that the administration has made alternative legal pathways available, including humanitarian parole for citizens of Cuba, Haiti, Nicaragua, and Venezuela. They also characterize the two-year order as an emergency measure that is designed to be temporary.

What Are the Criticisms?
Critics, including civil and human rights groups and some high-ranking Democrat lawmakers, argue that the policy endangers the lives of migrants who cannot wait for their asylum applications to be processed due to unsafe conditions in their home country. They say it undermines U.S. immigration law, which guarantees migrants the right to seek asylum in the United States if they fear persecution at home. “This policy will effectively prohibit most asylum seekers from exercising their right to seek safety in the U.S., and will force many vulnerable people to remain in situations that could endanger their lives,” Mark Hetfield, president and CEO of the Hebrew Immigrant Aid Society (HIAS), said in a statement.

Many opponents also argue that the exceptions are too narrow and that the alternative pathways are likely to be insufficient, including the untested mobile app made for this purpose. This could lead many applicants to be presumed ineligible unless they can prove they were refused refuge in another country, potentially a tall order. Some Democrats in Congress have instead called for expanding asylum availability.

Republican lawmakers, meanwhile, have criticized Biden’s handling of the border and threatened to impeach Secretary of Homeland Security Alejandro Mayorkas. However, the newly Republican-controlled House of Representatives is facing its own internal divisions over asylum restrictions proposed by Republicans. 

Diana Roy is Assistant Writer/Editor, Latin America, at CFR. This article is published courtesy of the Council on Foreign Relations (CFR).