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US: Order Limiting Asylum Will Harm People Seeking Protection

Violates International Human Rights and Refugee Law

A protest against the "Remain in Mexico" policy in front of the US Supreme Court, Washington, D.C., April 26, 2022. © 2022 Photo by Michael Brochstein/ Sipa via AP Images

(Washington, DC, June 5, 2024) – An executive order United States President Joe Biden issued on June 4, 2023, that would effectively block access to asylum for people entering the US-Mexico border under certain conditions risks exposing thousands of people to harm, Human Rights Watch said today. The order is unlawful under international human rights and refugee law.

The order enables border officials to rapidly remove people who arrive in the US without a hearing when border “encounters” or arrivals have surpassed a 7-day average of 2,500 people. This would effectively shut down the border to asylum seekers. Officials would not reopen the border until the number of daily arrivals drops below a 7-day average of 1,500 people.

The executive order is based on the confused premise that “noncitizens who cross the southern border unlawfully or without authorization will generally be ineligible for asylum.” Article 31 of the Refugee Convention makes clear that it is lawful to arrive as a refugee seeking protection, but by shutting down the border to all arrivals, the order treats seeking asylum as unlawful.

“Focusing on arbitrary numbers instead of human beings seeking asylum at the US border ignores the potential harm to individuals, families, and children who could be forcibly returned to danger,” said Vicki B. Gaubeca, associate director of US immigration and border policy at Human Rights Watch. “This policy replicates some of the harshest anti-immigrant polices under the previous administration, seemingly catering to fearmongering against immigrants and driven by a desire to appear ‘tough on the border.’”

The administration claims the new “shutdown” authority is based on section 212(f) of the Immigration and Nationality Act (INA), which allows the president to bar the entry of entire classes of noncitizens considered “detrimental to the interests of the United States.” However, people who are already on US soil and seeking asylum or asking for protection are protected not only by section 208 of the INA but also by international law, with which section 212(f) needs to be consistent, Human Rights Watch said.

This is not the Biden administration's first restriction on access to asylum. In May 2023, the administration announced the Circumvention of Lawful Pathways rule. This in effect bans people from applying for asylum in the US if they cross between ports of entry, if they fail to use the CBP One phone app, which forces people to wait for months in Mexico for an appointment, or if they did not apply for asylum in a country of transit. These policies have led to widespread abuse, as documented by Human Rights Watch.

Furthermore, the Biden administration is planning to increase immigration-related prosecutions by ramping up additional “prosecutors and support staff” and increasing collaboration between the Departments of Homeland Security and Justice. Human Rights Watch has long documented that prosecutions for illegal entry or re-entry violate the rights of asylum seekers and the rights of all migrants to family unity.

“Instead of contributing to the political theater that is often the backdrop for the US presidential election cycle, the Biden administration should focus on creating a rights-respecting and balanced approach for managing the US-Mexico border,” Gaubeca said.

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