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How does U.S. asylum policy work?

U.S. asylum law allows individuals who fear persecution in their home country based on their race, religion, nationality, political opinion, or membership in a particular social group to apply for asylum.  Specifically, section 208(a) of the Immigration & Nationality Act states:

“Any alien who is physically present in the United States or who arrives in the U.S. (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum in accordance with this section.”

Once granted asylum, they can stay and work in the U.S. and eventually apply for permanent residency.

In recent years, U.S. asylum policies have undergone significant shifts, drawing global attention and sparking debate on humanitarian grounds. These policies, which determine how migrants can seek refuge, especially at the U.S.-Mexico border, are integral to the broader immigration landscape. Humanitarian reception processes for asylum-seekers have long been a pillar of the U.S. commitment to providing a safe haven for those fleeing persecution. However, recent restrictions under the Biden administration, while different in tone from its immediate predecessor administration, continue to build on precedents set by prior administrations, including policies introducing limitations that shape the experience and rights of those arriving at the border.

The Biden administration’s updates—starting with significant changes in June 2024 and further restrictions in September 2024—represent a strategic pivot. While these policies are purported to control the large influx of migrants at the southern border, they raise questions about the U.S.’s adherence to its historical and legal obligations to provide sanctuary. This article examines these policy changes, legal challenges, and their implications for the future of asylum in the U.S.

Background: Historical Approach to Asylum in the U.S.

The concept of asylum in the U.S. is grounded in humanitarian principles and international obligations. The Refugee Act of 1980 established the modern framework that grants individuals the right to seek asylum based on fear of persecution due to race, religion, nationality, political opinion, or membership in a particular social group, in alignment with the international definition of a refugee status. Historically, this meant that anyone entering the U.S. — regardless of the manner of entry — had the opportunity to apply for asylum.

In recent years, this principle has come under strain. The Trump administration introduced restrictive border policies, including the Migrant Protection Protocols (MPP) or the “Remain in Mexico” policy, which forced many asylum seekers to wait in often dangerous conditions across the border until their hearings, exacerbating their humanitarian needs and placing them at risk of violence. Such policies marked a shift from viewing asylum as a right to framing it as a managed privilege. The Biden administration initially promised a more compassionate approach; however, recent policy shifts demonstrate an ungenerous strategy prioritizing border security ahead of humanitarian commitments.

June 2024 Policy Changes: Limiting Asylum Eligibility

In June 2024, President Biden’s administration introduced a controversial executive order and set of restrictions limiting who can apply for asylum based on where and how they entered the U.S. According to this policy, migrants crossing the southern border outside official entry points may be denied the legal right to seek asylum and present their case to an immigration judge, unless they made an appointment through the CBP One App and depending on specific circumstances. This shift is notable, as it represents a move away from the principle that anyone entering the U.S. has a right to request asylum if they meet eligibility criteria.

Under the new policy, individuals must also demonstrate that they sought asylum claims in at least one country they traveled through en route to the U.S. before being eligible to apply for asylum at the southern border. For many, this change has been challenging, especially those fleeing extreme violence, political persecution, or humanitarian crises who find it impractical or impossible to seek protection in transit countries, or risk being referred to immigration court if their claims are denied. Critics argue that these restrictions overlook the urgency of these individuals’ needs, potentially endangering those forced to remain in perilous situations longer.

Organizations like Human Rights Watch and the American Civil Liberties Union (ACLU) argue that these policies undermine fundamental rights. Human Rights Watch, for example, contends that the restrictions contravene both U.S. law and international conventions, placing undue burdens on the world’s most vulnerable populations.

September 2024 Policy Intensifications: Threshold and Scope Expansion

In September 2024, the Biden administration introduced further restrictions, amplifying the effect of the June policy. Now, asylum access restrictions are to remain in effect until the daily number of migrant average encounters by border patrol, specifically the border patrol encounters at the U.S.-Mexico border, drops below 1,500 for 28 consecutive days—a significant increase from the previous seven-day requirement. Additionally, this policy now includes unaccompanied children in encounter counts, widening the scope of individuals potentially impacted.

The new threshold has faced sharp criticism from immigration advocates, who argue that it is an unrealistic benchmark given the complexity of migration dynamics at the border. Advocates also highlight the risks this poses for migrants, particularly vulnerable groups like children, who may now face prolonged wait times or face being turned away. These heightened requirements create logistical and legal hurdles, limiting migrants’ ability to access protection and, in some cases, forcing them back into dangerous situations.

Legal Responses and Challenges

Since the enactment of these policies, several legal challenges have arisen, primarily spearheaded by civil rights groups like the ACLU. These groups argue that the policies contradict long standing principles in U.S. asylum law and violate international agreements, like the 1951 Refugee Convention, to which the U.S. is a signatory.

In October 2024, a significant legal victory came when a federal appeals court struck down the ‘metering’ policy, which limited the number of asylum applications processed daily at ports of entry, including those in removal proceedings. The court ruled that U.S. law mandates officials at the port of entry inspect all individuals seeking asylum, regardless of numbers or capacity issues. This decision underscores the tension between policy goals and legal obligations, highlighting the importance of judicial oversight in ensuring adherence to U.S. immigration laws.

With ongoing cases and potential appeals, the future of these asylum restrictions remains uncertain. The legal system will likely continue to play a pivotal role in shaping the implementation and scope of these policies, especially as advocacy groups challenge their alignment with constitutional and humanitarian standards.

Humanitarian Impact and Criticism

For those seeking refuge, recent asylum policy changes present new challenges. Data from humanitarian organizations reveal that the number of asylum seekers, including many individuals seeking asylum from Latin America, come from their home countries with high rates of violence, including a significant risk of violence and political instability, such as Venezuela, Honduras, and Guatemala, according to the Department of Homeland Security. These asylum seekers often arrive at the U.S.-Mexico border after arduous journeys, fleeing threats to their lives and safety.

Many human rights organizations argue that the policy’s entry-point limitations disproportionately affect people without resources, compelling them to take dangerous routes or wait in areas where they face violence, exploitation, and disease. Children, often traveling alone or separated from families, are particularly vulnerable. Critics contend that the Biden administration’s policies fall short of ensuring the humane treatment and protection of these individuals, contradicting the image of the U.S. as a global sanctuary for the persecuted.

Future Implications and Unresolved Questions

The evolving asylum policy landscape raises critical questions about the future of U.S. immigration law. Will these restrictions become a standard part of the asylum process, or could future administrations return to a more open approach? How will these policies impact U.S. relations with neighboring countries like Mexico, who bear the burden of increased migrant flow under “Remain in Mexico”-style regulations?

Furthermore, as the U.S. grapples with its responsibilities under international law, the legal challenges and court decisions surrounding these policies could set lasting precedents. The impact on migrants, U.S.-Mexico relations, and the broader immigration system remain to be seen. For now, it is clear that these policies will significantly shape the experiences and rights of asylum seekers at the U.S. border.

Navigating a Complex Asylum Future

The recent shifts in U.S. asylum policy highlight the intricate balance between border security and humanitarian obligations. The complexities of migration and the real risks faced by asylum seekers demand a policy approach that respects both security concerns and human rights. The United States, historically a beacon of hope for refugees and asylum seekers, faces a crucial moment in redefining what asylum means in a modern context.

While courts and advocacy groups continue to push for a system that upholds both U.S. and international law, the human cost of restrictive asylum policies is increasingly apparent. Moving forward, policymakers will need to carefully consider the impact of these decisions, seeking a balance that preserves U.S. safety and moral commitments to protect the persecuted. In the interim, asylum seekers at the U.S. border face a complex and uncertain road ahead, their futures resting on the outcome of ongoing legal battles and policy debates.

Meanwhile, when seeking asylum in the U.S., staying informed about the process and legal requirements is essential as you prepare your application or await a decision. Professional legal support can significantly improve your chances of success by guiding you through the intricate steps. Contact the immigration attorneys at Benach Collopy today to get the help you need and navigate the asylum process with confidence.