
Nicholas Hove, Associate Member, Immigration & Human Rights Law Review
Content advisory: Discusses topics of sexual violence.
I. Introduction
The Biden administration has reshaped the United States asylum system with policies that introduce substantial restrictions on asylum seekers.[1] Beginning with the May 2023 “asylum ban,” President Biden’s policies have introduced barriers for asylum seekers who transit through other countries before reaching the U.S.-Mexico border, requiring them to apply for asylum in those countries or secure a limited appointment through the CBP One app.[2] These requirements severely restrict eligibility for refugee and asylum status, creating a system where asylum claims are contingent upon transit-country protections and pre-scheduled entry.[3]
In response to continued high migration levels, the administration further escalated these restrictions with a June 2024 executive order, which expanded expedited removal procedures for migrants crossing outside designated ports.[4] In September 2024, to combat high volumes of unauthorized entries, the administration implemented a cap-based approach to limit the number of eligible asylum seekers, focusing on more expedited removals and narrowing the allowed number of asylum claims to specific humanitarian cases such as unaccompanied minors or human trafficking victims.[5]
These cumulative measures not only impose severe limitations on the fundamental right to seek asylum, but they further violate U.S. obligations under international and domestic law, notably the 1951 Refugee Convention and the Refugee Act of 1980. These violations underscore the urgent need for reform and reconsideration of current U.S. asylum policies.[6]
II. Background: President Biden’s 2023–2024 Series of Asylum Restrictions
The right to asylum in the U.S. arose after World War II through the 1951 Refugee Convention (Convention), which outlines protections for individuals who are forced to flee from their country.[7] The United States later acceded to the subsequent 1967 Refugee Protocol (Protocol) and enacted the Refugee Act of 1980, which provides for international obligations and the legal right to seek asylum in the United States.[8] These instruments were generally respected until 2017, when the Trump administration began enacting severe restrictions on asylum seekers.[9] And, when the Biden administration took over, it continued many of the policies.[10] Both administrations demonstrated a complete disregard to international obligations and domestic law.[11]
In May 2023, the Biden administration enacted sweeping asylum restrictions, often referred to as the “asylum ban.”[12] The asylum ban barred virtually all asylum seekers who traveled through another country before reaching the U.S.-Mexico border from seeking asylum unless the asylum seeker (1) applied for asylum in one of the countries they passed through and had their application denied, or (2) secured a highly limited appointment to enter the United States at an official port of entry through the CBP One app.[13] Under this ban, asylum seekers are deemed ineligible for asylum based on how they entered the United States and if they sought protection in transit countries.[14]
Later, in June 2024, the Biden administration reinforced its May 2023 restrictions with an executive order designed to streamline migrant processing and address ongoing high encounter rates at the southern border.[15] Implemented under the Immigration and Nationality Act, these new actions prevent migrants who enter the United States outside official ports of entry from seeking asylum.[16] The order enables expedited removal for those crossing the U.S. border irregularly, allowing immigration officers to efficiently process and deport individuals deemed ineligible under these new criteria.[17] These restrictions remain in place until daily border crossings decrease to a manageable threshold, underscoring the administration’s claim that immediate border control measures are critical to maintaining order and security.[18]
In September 2024, the Biden administration furthered the asylum restrictions in response to continued high volumes of unauthorized entries along the U.S.-Mexico border.[19] This new regulation extended the threshold period for daily border encounters to remain below 1,500 to lift the suspension of asylum processing.[20] Previously, the threshold was set for seven days but was increased to twenty-eight days to ensure any decrease in encounters was sustained, not temporary.[21] This adjustment followed the May 2023 and June 2024 restrictions, which prevented many asylum seekers from applying if they crossed between official ports of entry or failed to seek asylum in transit countries.[22] This new rule intensified existing restrictions because it effectively broadened the duration of limits on asylum claims and added another layer of exclusion based on a person’s entry method and the number of border crossings.[23] Many human rights advocates, including Human Rights Watch, argue that these measures violate both United States and international asylum laws by undermining the right to seek protection for those fleeing danger while also exacerbating the already narrow conditions under which migrants can apply for asylum.[24]
III. Discussion
A. Human Rights Violations: International Legal Framework
The Biden administration’s series of asylum restrictions violates various international treaty obligations.[25] The United States played a major role in drafting the Refugee Convention of 1951, which is an international treaty that requires countries to ensure the protection of refugees by adhering to its legal principles.[26] The 1967 Refugee Protocol supplemented the convention and the United States acceded to it in 1968 with no reservations.[27] The Protocol binds the United States to Articles 2 through 34 of the Convention; however, the effectiveness of enforcement mechanisms against Convention violations is unclear.[28]
The primary principle established through the Protocol and the Convention is non-refoulement.[29] This principle posits that countries must not “expel or return a refugee … to the frontiers of territories where his life or freedom would be threatened.”[30] Article 31 of the Convention prohibits countries from punishing asylum seekers for irregular entry into a country.[31] Specifically, it states that countries shall not penalize a refugee on account of their illegal entry or presence when the refugee comes from a country where their life or freedom was threatened, so long as they present themselves to authorities without delay and show good cause for their illegal entry or presence.[32] The Biden administration’s June 2024 executive order expressly states that noncitizens who cross the southern border unlawfully or without authorization will generally be ineligible for asylum.[33] Denying the right to asylum on this basis is a direct violation of Article 31.
The Convention’s Article 33 prohibits non-refoulement, stating that countries may not “expel or return a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened because of a protected ground.”[34] The Biden administration’s string of asylum restrictions completely disregard this essential principle right to asylum.[35] Namely, the September 2024 order violates this article by denying the right to asylum on the basis of an arbitrary threshold of daily border crossings.[36] There are no exceptions in Article 33 permitting a country to refuse asylum due to the volume of incoming migrants.[37]
However, the extent to which the Protocol’s articles are legally binding in the U.S. is unclear.[38] Federal courts have held that the Convention and Protocol are non-self-executing instruments, meaning that they cannot create any judicially enforceable rights or duties, and additional legislation is necessary for their enforceability.[39] Self-executing treaties, on the other hand, essentially have the same binding force of domestic law immediately upon ratification.[40] Federal courts’ holdings that the Convention and Protocol are non-self-executing is extremely detrimental to the treaties’ effectiveness. Thus, unless federal courts establish new precedent allowing for judicial enforceability of the Convention or Protocol, any successful judicial action against the Biden administration for its Convention violations is unlikely.[41]
B. Domestic Legal Violations
Although the Biden administration’s actions may not constitute judicially enforceable international obligations, they also violate domestic federal law.[42] In 1980, the United States enacted the Refugee Act, codified at 8 U.S.C. §1158(a), to fulfill its international treaty obligations under the Convention and Protocol.[43] The Refugee Act guarantees the right to seek asylum for individuals who are physically present in the United States, regardless of place of entry and status.[44] More specifically, the Act provides that “[a]ny alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival …), irrespective of such alien’s status, may apply for asylum.”[45]
The Biden administration’s “asylum ban” and subsequent restrictions violate the United States’ longstanding legal protections for asylum seekers.[46] The ban denies asylum based on how the seeker entered the United States, directly violating the Refugee Act.[47] Under the Refugee Act, it is illegal to deny asylum solely because the seeker traveled through a third country before reaching the United States unless (1) that country is formally designated as a “safe third country” through formal agreement, or (2) the seeker was “firmly resettled” in the transit country.[48]
The Biden administration’s series of asylum restrictions blatantly disregard this Act and extend the denial of asylum far beyond these statutory exceptions.[49] Under the administration’s restrictions, the United States denies asylum based on travel through countries that the U.S. government has not formally or informally recognized as safe third countries, regardless of whether the seeker has been firmly resettled in any transit country.[50]
The Department of Homeland Security (DHS) and the Department of Justice (DOJ) supported Biden’s 2023 rules, contending that his administration has statutory authority to impose additional limitations and conditions on asylum seekers’ rights to asylum.[51] In response, many legal services organizations have challenged these restrictions, claiming that the rule merely reiterates previous asylum bans under the Trump administration, which courts ruled violated the Refugee Act.[52] Litigation challenging the Biden administration’s restrictions is ongoing as of January 2025.[53]
C. Implications
These restrictions severely harm those seeking asylum in the United States as the restrictions often force seekers to wait in Mexico.[54] Due to Mexico’s widespread cartel influence and government corruption, individuals who seek U.S. asylum are stranded in Mexico and are extremely vulnerable.[55] To illustrate, Human Rights First has recorded over 13,000 instances of murders, kidnappings, rapes, and other acts of violence against migrants who are blocked in Mexico since President Biden took office.[56] In December 2022, a Honduran woman and her four-year-old child who attempted to enter the United States through Ciudad Juárez, which borders El Paso, Texas, were blocked from seeking asylum.[57] After being denied any form of humanitarian relief, Juárez police sexually assaulted the mother and daughter before handing them over to a Mexican cartel.[58] The cartel held them captive for twenty-two days, during which they were subjected to physical and sexual abuse.[59] Later, in the same month, DHS expelled and subsequently deported a Honduran man to Mexico.[60] Mexican police officers beat the man and cartel members subsequently kidnapped him.[61] These incidents are far from isolated; nevertheless, the Biden administration’s series of asylum restrictions continued to neglect the severe dangers asylum seekers face when being expelled to Mexico.[62]
IV. Conclusion
Since the May 2023 “asylum ban,” the Biden administration has intensified restrictions on asylum seekers, reshaping the U.S. asylum system and moving away from established protections.[63] These policies, which impose rigid criteria based on transit routes, digital access, and border entry methods, severely limit access to asylum and risk violating both U.S. and international obligations, including those established by the 1980 Refugee Act and the Refugee Convention of 1951.[64] Addressing these restrictive measures is critical, as reform or repeal would restore the integrity of the U.S. asylum process and uphold its role as a sanctuary for individuals fleeing persecution and violence, especially in the context of Donald Trump’s impending presidency, given his administration’s previous crackdown on immigration and asylum protections.[65] Immediate attention and possible legislative intervention are necessary to safeguard the right to seek asylum and reaffirm the United States’ commitment to humanitarian principles.[66]
[1] Bill Frelick, Biden Administration Doubles Down on Harmful Asylum Rules, Human Rights Watch (Oct. 1, 2024), https://www.hrw.org/news/2024/10/01/biden-administration-doubles-down-harmful-asylum-rules [https://perma.cc/3A7N-4DNM].
[2] What Do President Biden’s Border Policies Mean for Asylum Seekers?, International Rescue Committee (Mar. 22, 2023), https://www.rescue.org/article/what-do-president-bidens-border-policies-mean-asylum-seekers [https://perma.cc/DAZ5-ZA6T]. The CBP One app is a “U.S. government app for smartphones that offers appointment slots for people to request asylum at ports of entry.” Many asylum seekers face months-long wait times to secure appointments through the app.
[3] Id.
[4] Fact Sheet: President Biden Announces New Actions to Secure the Border, The White House (June 4, 2024), https://www.whitehouse.gov/briefing-room/statements-releases/2024/06/04/fact-sheet-president-biden-announces-new-actions-to-secure-the-border/ [https://perma.cc/DA5C-37L9].
[5] Id.
[6] Congressional Research Service, The Biden Administration’s Final Rule on Arriving Aliens Seeking Asylum (Part Two), (Sept. 21, 2023), https://crsreports.congress.gov/product/pdf/LSB/LSB11044 [https://perma.cc/RB55-GWR4].
[7] Human Rights First, Assessment: U.S. Compliance with the Refugee Convention at Its 70th Anniversary, (July 27, 2021), https://humanrightsfirst.org/library/assessment-u-s-compliance-with-the-refugee-convention-at-its-70th-anniversary/ [https://perma.cc/FU2X-XJXZ].
[8] Id.
[9] Id.
[10] Id.
[11] Id.
[12] Human Rights First, Biden Administration Asylum Ban: Widely Opposed Misstep Violates Law and Fuels Wrongful Deportation of Refugees, (June 28, 2023), https://humanrightsfirst.org/library/biden-administration-asylum-ban-widely-opposed-misstep-violates-law-and-fuels-wrongful-deportation-of-refugees/ [https://perma.cc/BDX3-VMJK].
[13] Id.
[14] Id.
[15] Fact Sheet: President Biden Announces New Actions to Secure the Border, supra note 4.
[16] Id.
[17] Id. In this context, “irregular migration” refers to migration that occurs outside the established legal and orderly processes. Specifically, it includes individuals crossing U.S. borders without proper authorization or documentation.
[18] Id.
[19] Fact Sheet: Joint DHS-DOJ Final Rule Issued to Restrict Asylum Eligibility for Those Who Enter During High Encounters at the Southern Border, Department of Homeland Security (Sept. 30, 2024), https://www.dhs.gov/news/2024/09/30/fact-sheet-joint-dhs-doj-final-rule-issued-restrict-asylum-eligibility-those-who [https://perma.cc/L7WZ-J6WD].
[20] Frelick, supra note 1.
[21] Id.
[22] Id.
[23] Id.
[24] Id.
[25] Biden Administration Asylum Ban, supra note 12.
[26] Id.
[27] Id.
[28] Protocol Relating to the Status of Refugees, Jan. 31, 1967, 606 U.N.T.S. 267. Accession, in contrast to ratification, is a process where a state agrees to be bound by a treaty it did not formally sign. It is an alternative means for a state to join a treaty after its adoption.
[29] Id.
[30] Id. at Art. 33.
[31] Id. at Art. 31.
[32] Id.
[33] Fact Sheet: President Biden Announces New Actions to Secure the Border, supra note 4.
[34] Protocol Relating to the Status of Refugees, supra note 28.
[35] Frelick, supra note 1.
[36] Id.
[37] Protocol Relating to the Status of Refugees, supra note 28.
[38] Congressional Research Service, supra note 6.
[39] Id.
[40] Id.
[41] Id.
[42] Id.
[43] Biden Administration Asylum Ban, supra note 12.
[44] 8 U.S.C. § 1158(a).
[45] Id.
[46] Biden Administration Asylum Ban, supra note 12.
[47] Id.
[48] 8 U.S.C. § 1158(a)(2).
[49] Biden Administration Asylum Ban, supra note 12.
[50] Id.
[51] Congressional Research Service, supra note 6.
[52] Id.
[53] Heidi Altman, How the Biden Administration’s Expanded Asylum Ban Puts Lives at Risk and Contradicts American Values, National Immigration Law Center (Sept. 30, 2024), https://www.nilc.org/resources/how-the-biden-administrations-expanded-asylum-ban-puts-lives-at-risk-and-contradicts-american-values/ [https://perma.cc/YMF7-99GL].
[54] Biden Administration Asylum Ban, supra note 12.
[55] Id.
[56] Id.
[57] Human Rights First, Tracker of Reported Attacks Against Asylum Seekers, https://humanrightsfirst.org/wp-content/uploads/2021/08/AttacksonAsylumSeekersStrandedinMexicoDuringBidenAdministration.6.17.21.pdf [https://perma.cc/7QVV-B7DQ] (last visited Jan. 9, 2025).
[58] Id.
[59] Id.
[60] Id.
[61] Id.
[62] Id.
[63] Biden Administration Asylum Ban, supra note 12.
[64] Id.
[65] Id.
[66] Id.