New Biden administration rule cements border asylum restrictions put in place this summer

The Biden administration has released the final version of an asylum restriction put in place along the border this summer.

Under the June rule, migrants apprehended between ports of entry are barred from asking for asylum. It can be lifted when the number of daily apprehensions dips below 1,500 for a week border wide.

Under the new rule, posted Monday in the Federal Register, the number of arrests must remain below 1,500 border-wide for 28 days in a row.

Christina Asencio, director of research, analysis and refugee protection at Human Rights First, says the rules go against international refugee protection agreements signed by the U.S. and other countries.

“Unaccompanied children, so children who are not traveling with their parent on legal guardian, from non-contiguous countries, so other than Mexico, will now be included in the calculation of that 1,500,” she said.

Asencio says that change, plus the extension to 28 days, means the rule could be in place indefinitely. Though unaccompanied children apprehended now count toward the 1,500 threshold, they are not subject to removal under the new rule.

Rights groups already sued over the original June policy, arguing it violates a section of U.S. immigration law that guarantees people on U.S. soil the right to seek asylum, no matter where they are or how they arrived.

Asencio says the June restriction is supposed to allow people who express a fear of returning to Mexico or their home countries the chance to get additional screening.

“Border Patrol officers are still obligated to refer individuals to a credible fear interview, which is a fear screening, although they’re barred from asylum, they're eligible for other forms of humanitarian protection,” she said. 

But a report from Human Rights First and other groups shows in Nogales and other border cities, asylum seekers are still being turned away without getting that screening. 

The final rule is set to publish Oct. 7 on the Federal Register.

EDITOR'S NOTE: This story has been updated to correct the spelling of Christina Asencio's name, and the headline has been updated to clarify that the rule cements border asylum restrictions.