Biden’s Proposed Asylum Policy does not Fulfill U.S. Treaty Obligations

[Ana Luquerna is a lawyer whose professional and academic background focuses on international human rights law and refugee law. She holds a Juris Doctor from The University of Chicago Law School and a Master’s degree in Refugee and Forced Migration Studies from the University of Oxford. Christy Crouse is a U.S. lawyer and researcher at Dejusticia: Center of Studies on Law, Justice, and Society in Bogotá, Colombia, where she focuses on issues of human rights, constitutional law, and international law. She received her J.D. from the University of Chicago Law School, where she specialized in international human rights law and immigration law.]

“Look at what you’ve done so far. Poland is hosting more than 1.5 million refugees from this war. God bless you,” declared President Biden to an audience at the Royal Castle in Warsaw, Poland on February 21. Two days later, the Biden Administration back home proposed a new U.S. asylum policy that severely limits migrants’ ability to request asylum. This new policy has been described as “at its core, Trump’s asylum ban under a different name,” and as a policy that “normalizes the white nationalist belief that asylum seekers from certain countries are less deserving of humanitarian protections.”

Congresspeople, particularly Democrats, have already rallied together against this policy, accusing it of going against both domestic and international law. On the other hand, Biden Administration officials blame the lack of action by Congress as the impetus for this policy; had the legislature acted, this policy would not have been required. The proposed rule mentions the urgency to act due to the imminent end of the national public health order, and with it, the Trump Administration’s “Title 42”, a policy allowing the government to quickly expel migrants trying to cross the southwest border due to public health reasons. 

Whether this new policy is necessary or not, it is vital to understand how the details of this proposed rule hold up under international law and the U.S.’s treaty obligations. 

Biden’s Proposed Rule

The Biden Administration’s proposed immigration policy adopts a rebuttable presumption of asylum ineligibility for most asylum seekers at the southwest U.S. border. This policy places a significant burden on asylum seekers, as they will face expedited removal unless they are able to overcome the presumption of ineligibility. 

The policy requires migrants to meet two conditions to seek asylum in the U.S. First, asylum seekers must use the CBP One App to schedule an appointment, unless they already have another lawful pathway into the U.S. (i.e. DHA-approved parole process). Second, they must have sought asylum and have been denied in any country they transited through that has signed the 1951 United Nations Convention relating to the Status of Refugees or its 1967 Protocol. Though the failure of meeting these conditions leads to a presumption of ineligibility, the presumption may be overcome by demonstrating “exceptionally compelling circumstances.” These humanitarian exemptions include unaccompanied children and adults who have an acute medical emergency, who face an imminent and extreme threat to their life or safety, or who are victims of a severe form of trafficking. 

U.S. Obligations and Refugee Rights under International Law

The ability to seek asylum is a human right. Not only is Biden’s proposed policy unlawful under domestic law, but it violates the U.S.’s international obligations, which include the 1951 Refugee Convention and its 1967 Protocol. Biden’s proposed policy is illegal under international law because it disregards the legal definition of a refugee and the U.S. commitment to the principle of non-refoulement.

According to the Convention, a refugee is “someone who is unable or unwilling to return to their country of origin, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion.” The 1980 Refugee Act, the ruling U.S. legislation defining refugee rights in the U.S., defines a refugee in accordance with the 1951 Convention and its Protocol. 

The U.S. is obliged to uphold the principle of non-refoulement under the Refugee Convention. The U.S. signed and ratified the 1967 Protocol in 1968, which incorporates the main substantive legal obligations from the 1951 Refugee Convention. This legal obligation prevents States from returning any refugee in “any manner whatsoever to the frontiers or territories where his [or her] life or freedom would be threatened.” Any person who qualifies as a refugee under the Convention is entitled to the right to non-refoulement. The prohibition against refoulement also constitutes a rule of customary international law. Consequently, the prohibition against non-refoulement is binding on all States, regardless of whether they have signed and ratified any specific treaties that protect the right to non-refoulement. 

1. Requiring the CBP App for Scheduling Adds an Illegal Barrier to Asylum

The first condition to seek asylum under Biden’s proposed policy requires migrants to enter lawfully through a port of entry, with a pre-scheduled appointment managed through the CBP One App. This requirement adds an illegal barrier to asylum that openly disregards and narrows the definition of a refugee under international law. 

The legal definition of a refugee does not require asylum-seekers to enter in a “lawful” manner, nor does it require the usage of a scheduling app. Under the terms of the Convention and its Protocol, as long as you have a well-founded fear of persecution due to the five protected grounds enshrined in the Convention, then you are eligible to seek asylum. No humanitarian exemptions are required for the right to seek asylum.

2. Pushing Asylum-seekers to Other Countries, Without Regard for their Safety, Could Violate the Principle of Non-refoulement

The second condition under Biden’s policy requires migrants to apply for asylum and to receive a denial in countries they transited through that have signed the Refugee Convention or its Protocol. Under this rule, Cuba and Guyana are the only two states in the region where migrants could pass through without applying for asylum because those are the only two countries that have failed to sign the Refugee Convention or its Protocol. The majority of migrants at the southwest border are traveling through, at the very least, Mexico, which is a signatory to the Refugee Convention and its Protocol. This means that unless asylum-seekers apply for asylum and receive a denial in Mexico, the number of migrants excluded simply for traveling through Mexico would likely be extremely significant.

This condition is reminiscent of the “safe third country” principle in international law. Safe third country agreements allow countries to reject a person’s asylum application if they have already been in a “safe” country where they could have applied for asylum. In the past, U.S. immigration law has required a signed safe third country agreement in order to exclude migrants from applying for asylum in the U.S. As of 2023, the U.S. has a safe third country agreement with Canada. Though three Trump-era agreements had been signed with Guatemala, El Salvador, and Honduras, the Biden administration terminated these agreements in order to “establish a cooperative, mutually respectful approach to managing migration across the region.” This means that under current U.S. agreements, only migrants that transited through Canada and lawfully entered through the southwest border of the U.S. could be prevented from seeking asylum. The majority of asylum-seekers entering through the Southwest border do not fall into the previous category. 

Biden’s proposed policy seems to flip the idea of safe third country agreements on its head. Instead of requiring signed agreements that demonstrate the ability of a third country to provide a safe haven to migrants, the policy no longer requires an agreement between two sovereign countries. Rather, the U.S. categorically assumes that all countries who have signed the Convention or its Protocol fit the criteria of a safe third country, or at least, fit the criteria of having a functioning enough legal system to process asylum-seekers’ applications as they pass through. 

This is a faulty assumption, as other countries in the region have already been shown to lack the ability to ensure protection and dignity to migrants. Rejecting migrants and pushing them to go to other countries in the region, such as Mexico, has already been shown to endanger the lives of thousands of people fleeing violence and poverty. In another example, a congressional investigation of the agreement with Guatemala found that not a single migrant sent from the U.S. to Guatemala under the agreement received asylum in that country.

Under the principle of non-refoulement, the U.S. has an obligation to ensure it does not push asylum-seekers out of its jurisdiction to places where they could face life-threatening conditions or human rights violations. Thus, sending migrants away without a formal mechanism of determining their safety elsewhere, through a safe third country agreement, is highly questionable both legally and ethically. Worse, deportation to asylum seekers’ countries of origin means sending people back to the very own persecution that they are trying to flee. 

Biden’s proposed policy will lead to the expedited removal of migrants that are unable to enter lawfully into the U.S. or fail to apply for asylum in transit countries. Returning migrants to Mexico, another country of transit, or their country of origin could lead to imminent harm or death for asylum-seekers. Biden’s adoption of this broad expedited removal policy violates the U.S. international obligation to uphold the principle of non-refoulement.