Biden's New Asylum Policy

President Biden has recently signed an executive order that changes asylum policy for individuals who recently crossed the border in between ports of entry. Under current law, most people who enter the United States, whether at a port of entry or between ports of entry, are able to be interviewed by an asylum officer if they claim to have a fear of being persecuted in their home country.

President Biden’s new executive order would bar individuals who recently entered the United States between ports of entry from applying for asylum so long as the 7-day average of daily CBP encounters exceeds 2,500. As that 7-day average is consistently well over 2,500, it is expected that President Biden’s new executive order will effectively bar all recent entrants between ports of entry from applying for asylum at all. Under the executive order, such individuals could only apply for asylum once the 7-day average of daily encounters falls below 1,500.

Individuals seeking asylum at the southern border are still able to download the CBP One app and try to get an appointment with an asylum officer at a port of entry. However, the wait times and reported difficulty scheduling those appointments and using the app has made that option difficult as well.

The President signed the executive order likely due to the upcoming presidential election. However, it is likely to be challenged in court. The executive order may violate both U.S. asylum law and the international treaty on refugees that the United States signed. Those laws allow anyone fleeing persecution the right to stay in the country they flee to until they have the opportunity to present their claims to a fair tribunal. Therefore, until those laws are changed, the President’s executive order will be challenged in federal court.

The President’s executive order does not affect individuals who entered the United States before it was enacted on June 5, 2024. It also does not affect the right of anyone to apply for asylum who entered the country at a port of entry, such as at an airport.

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